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Adviser Sanctioned for False Statements to Prospective Investors 01/11/2018

Posted by Morse Barnes-Brown Pendleton in Attorney News, Corporate, Financial Services, Private Investment Funds & Advisers.
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JHW Headshot Photo 2016 (M0990045xB1386)The Securities and Exchange Commission sanctioned a private equity fund adviser and its chief executive officer for making false statements about the other investors that had committed to invest in one of the adviser’s private equity funds. As part of a settlement with the SEC, the adviser agreed to cease acting as an investment adviser and its chief executive officer was barred from the investment management industry and ordered to pay almost $375,000. In his article Adviser Sanctioned for False Statements to Prospective Investors, Josh Watson explains how the SEC determined that Gray Financial Group, Inc. misled investors regarding its private equity fund.

Read the full article on our website. For more information, please contact Josh Watson.

Elevations Launch the New Year at MBBP 01/02/2018

Posted by Morse Barnes-Brown Pendleton in Attorney News, Corporate, Intellectual Property, MBBP news.
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FDK Headshot Photo 2015 (M0846572xB1386)   jmc-headshot-photo-2015-m0846508xb1386

We are pleased to announce that Faith Kasparian and Jonathan Calla have each been elevated to the rank of Member at MBBP.

An Intellectual Property attorney with more than fifteen years of experience, and a Certified Information Privacy Professional/United States (CIPP-US), Faith focuses her practice on privacy and data security, and on transactions involving the development and commercialization of technology and other intellectual property assets. Prior to joining the Firm, Faith was assistant college counsel to Emerson College, providing services to the College and to its Majestic Theater, and was an associate in the Washington, D.C. office of Covington & Burling. Faith has been with the Firm since 2007, most recently as Counsel.

A member of the Firm’s Corporate Practice Group and its M&A Practice Group, Jonathan’s primary focus is on M&A, private equity, venture capital and angel financing transactions, as well as on general corporate representation. In addition to his long experience in private practice, Jonathan served previously as corporate counsel to LoJack Corporation, a publicly traded technology company, affording him real insight into the particular needs and concerns of in-house counsel. Jonathan has been with MBBP since 2010, most recently as a Senior Attorney.

Congratulations to both!

Please feel free to contact Faith or Jonathan directly.

Shannon Zollo Comments on Proposed Aetna-CVS Deal in The National Law Journal Article 12/06/2017

Posted by Morse Barnes-Brown Pendleton in Attorney News, Corporate, Life Sciences, M&A.
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M0846567Corporate partner Shannon Zollo commented on the legal scrutiny facing CVS Health and Aetna’s planned merger in The National Law Journal’s article “Lawyers Say Fed. Regulators Likely Will Closely Scrutinize Aetna-CVS Deal.” In regards to the proposed merger, which would be a large consolidation within the healthcare industry, Shannon notes that:

 

It’s logical to anticipate [close scrutiny] based on the size and importance of the industry as it relates to the U.S. economy and well-being,” and that the effect the transaction has on competition “is informed by a number of factors, including how many players are left in the field after the deal is completed; the effect on existing customer and vendor relationships and the massive amount of integration required to consummate the deal.”

For additional insight from Shannon and information about the deal, read the full article.

Venture Capital Firms Defend Significant Appraisal Award on Appeal 12/04/2017

Posted by Morse Barnes-Brown Pendleton in Attorney News, Corporate, Financial Services, Venture Capital & Private Equity.
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M0846500By: Scott Bleier

Originally published in the ABA’s Business Law Today.

In October, the Delaware Supreme Court heard oral arguments in an appeal from the Court of Chancery’s 2016 appraisal decision which awarded Polaris Venture Partners and Ad-Venture Capital Partners more than a 2.5x increase (plus interest) over the price per share paid to stockholders in connection with a 2013 cash-out merger of minority stockholders of ISN Software Corp. (ISN), a venture-backed company. Following the 2013 merger, both Polaris and Ad-Venture sought appraisal of their ISN shares pursuant to Section 262 of the Delaware General Corporation Law. At trial, Polaris Venture’s expert opined that the fair value of a share of ISN stock was greater than eight times that implied by the valuation provided by ISN’s expert, although all experts relied to some extent on the guideline public company analysis (valuing ISN based on trading multiples derived from publicly traded companies that were similar to ISN) in valuing ISN.

In its opinion, the Delaware Court of Chancery determined to rely exclusively on the discounted cash flow (DCF) method in appraising the statutory “fair value” of ISN shares at $98,783 per share, a 257% increase to the $38,317 per-share merger consideration, finding several other valuation methods to be unreliable given that ISN was privately held and had not reached a “steady state of growth.” The case illustrates the unpredictable nature of valuations of venture-backed companies and suggests that a DCF valuation may be the Delaware Court of Chancery’s preferred methodology in an appraisal of an early-stage growth company.

For more information, please contact Scott Bleier.

Issuance of Founders’ Equity: What’s the Right Slice of Pie? – MBBP Venture Capital Event, December 7 11/27/2017

Posted by Morse Barnes-Brown Pendleton in Attorney News, Corporate, Events, Venture Capital & Private Equity.
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JMH Headshot Photo 2015 (M0846571xB1386)Our venture capital event, Issuance of Founders’ Equity: What’s the Right Slice of Pie?, will be held on Thursday, December 7 from 4:30-6pm at the Cambridge Innovation Center (CIC). Moderated by corporate attorney John Hession, the panel will discuss the unique challenges and issues surrounding the allocation of equity for early-stage companies. The panel includes:

Abi Barrow, DirectorUniversity of Massachusetts, Office of Technology Commercialization and Ventures (OTCV)@AbiBarrow
Carsten Boers
, Managing Partner, Rhapsody Venture Partners
Greg ErmanPresident & CEOEmpiraMed

Space is limited!  View our event page for more information and to register for the event.

Joseph Hunt Joins MBBP as Corporate & Tax Associate 11/14/2017

Posted by Morse Barnes-Brown Pendleton in Attorney News, Computer Software & Hardware, Corporate, Life Sciences, MBBP news, Taxation, Venture Capital & Private Equity.
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JEH Headshot Photo 2017 (M1147148xB1386)We are pleased to announce the addition of corporate and tax associate, Joseph E. Hunt IV.

Joe advises emerging and middle-market companies in a wide range of industries and at all stages of their development.

Joe also provides counsel to clients on general tax matters, entity formation, and on corporate governance. Prior to joining MBBP, he worked in the Mergers & Acquisitions Transaction Services of a Big Four advisory firm. He focused on advising private equity and multinational corporate clients throughout the M&A life cycle in both buy-side and sell-side transactions, maintaining an emphasis on software, life sciences, and technology industries.

For more information, read the full announcement.  We invite you to contact Joe directly.

Shannon Zollo Comments on Uber’s Due Diligence Process in Otto Acquisition 11/01/2017

Posted by Morse Barnes-Brown Pendleton in Attorney News, Corporate.
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M0846567In Corporate Counsel’s “Should Uber’s Salle Yoo Have Taken Earlier Look At Critical Due Diligence Report,” corporate partner Shannon Zollo comments on Salle Yoo’s, the chief legal officer at Uber, potential involvement in the due diligence process during Uber’s acquisition of Otto. The issue is at question in Uber’s ongoing court battle with Waymo, where Uber claims that Yoo did not see the due diligence report until a year after the acquisition was announced. Shannon remarks that Yoo may have “relied extensively on the internal team.” He also poses the question:

Independent of this situation, does it make strategic sense at times for people in positions of authority to not be exposed to potentially damaging information?”

For Shannon’s answer to that question and to read more about the case, read the full Corporate Counsel article.

Behind the Curtain: An inside look into the operations of VC firms – MBBP Venture Capital Event, November 7 10/11/2017

Posted by Morse Barnes-Brown Pendleton in Attorney News, Corporate, Events, Financial Services, MBBP news, Venture Capital & Private Equity.
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MRJ Headshot Photo 2017 (M1047116xB1386)Our venture capital event, Behind the Curtain: an inside look into the operations of VC firms, will be held on Tuesday, November 7 from 4:30-6pm at the Cambridge Innovation Center (CIC). Moderated by corporate attorney Mike Jabbawy, the panel will explore how the internal realities of a venture capital firm might have an impact on a technology company looking to build a business based on a venture capital finance strategy. The panel includes:

Dana Callow, Managing General Partner, Boston Millennia Partners
Frank Castellucci, General Counsel & Partner, Accomplice
Juan Luis Leung-Li, Partner, Tectonic Ventures

Space is limited!  View our event page for more information and to register for the event.

John Hession Speaking on Panel at AUTM 2017 Eastern Region Meeting 09/19/2017

Posted by Morse Barnes-Brown Pendleton in Attorney News, Corporate, Events.
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JMH Headshot Photo 2015 (M0846571xB1386)At the Association of University Technology Managers (AUTM) Eastern Region Meeting, corporate attorney John Hession will participate on the panel “Title Founders and Initial Equity Distribution for Startups.” The panel will explore equity distribution among founders, universities, management, and employees during new company formation, and the impact of this distribution on the company’s success. The panel will include the following participants:

Moderator:
William Rosenberg, Startup Consultant

Speakers:
Irene Abrams, Boston Children’s Hospital
Abigail Barrow, Massachusetts Technology Transfer Center

Additional information can be found on the AUTM 2017 Eastern Region Meeting event page.

Mike Cavaretta Moderating Startup Coalition Panel on Avoiding Legal Snafus 09/12/2017

Posted by Morse Barnes-Brown Pendleton in Attorney News, Corporate, Events.
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Michael J Cavaretta (MJC)Corporate attorney Mike Cavaretta will moderate the Startup Coalition panel “An Ounce of Prevention: How Startups Can Avoid Legal Snafus.” The panel of startup and legal veterans will discuss on which legal precautions startups should focus their limited resources in order to reduce the likelihood of long term consequences on their business.

The panel will take place on September 20th at WeWork. View the event page for more information and registration details.

Carl Barnes Comments on Earnout Disputes in Startup Acquisitions in Wall Street Journal 09/05/2017

Posted by Morse Barnes-Brown Pendleton in Attorney News, Corporate, Life Sciences, M&A.
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CFB Headshot Photo 2015 (M0846497xB1386)The Wall Street Journal article “Rise of ‘Earnouts’ Muddies M&A Waters” discusses the increasing landscape of earnout agreements in startup acquisitions. As the article states, earnout agreements are often used in order to settle differences over a company’s valuation, but are frequently leading to disputes over milestone payments. MBBP corporate partner Carl Barnes remarks that:

Concern about the potential for earnout disputes is leading startups to take proactive measures, such as creating escrow accounts to fund legal battles. Typically, funds for the escrow come off the top of the cash paid up front. If the funds are never used, they are disbursed to shareholders.”

Additional measures involve how the earnout agreements are initially structured and negotiated within the deal. For more information, read the full article.

Mike Jabbawy Participating on Shoobx Startup Panel 08/08/2017

Posted by Morse Barnes-Brown Pendleton in Attorney News, Corporate, Events, Venture Capital & Private Equity.
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MRJ Headshot Photo 2017 (M1047116xB1386)On September 26, corporate partner Mike Jabbawy will take part in the panel “How to Start a Startup”. The panel is part of Shoobx’s Startup Series, which features real life stories from startup founders, investors, and community members. Items of discussion will include choosing a form of entity for a business, choosing co-founders, and how to find assistance to get your business off the ground.

For more information, including registration details, visit our VCs and Startups blog.

Scott Bleier Moderating ABA Venture Capital Webinar This Thursday 07/24/2017

Posted by Morse Barnes-Brown Pendleton in Attorney News, Corporate, Events, Venture Capital & Private Equity.
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M0846500This Thursday, July 27th, beginning at 1pm EST, corporate attorney Scott Bleier will moderate the ABA Business Law Section webinar “Roadmap of a Venture Capital Deal“. The panel will cover various topics of the lifecycle of a venture capital financing transaction.

Visit our VCs and Startups blog for more information about the webinar and details on how to register.

Corporate Attorney Shannon Zollo Explains In-House Counsel’s Role in Due Diligence 07/05/2017

Posted by Morse Barnes-Brown Pendleton in Attorney News, Corporate, Intellectual Property.
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M0846567In Corporate Counsel’s article “10 Uber In-House Attorneys Saw Due Diligence Report in Battle With Alphabet“, Shannon Zollo comments on the role of in-house counsel in the due diligence process. The article discusses a due diligence report from Uber’s acquisition of Otto, in which Alphabet claims there is proof that Uber knowingly acquired stolen intellectual property. As such, the importance of the due diligence process is highlighted and, in particular, in-house counsel’s role in the process.

Shannon explains that the goal of the due diligence period is to review a target company in a merger or acquisition and ascertain whether or not there are any potential issues. He notes:

The purpose of a diligence report is to understand as best as is possible before you close, the nature of the target and whether that target fits within your acquisition profile across the board.”

If any issues do arise, Shannon states that the buyer’s internal team has to discuss the next best steps and that “in-house counsel should be deliberate in trying to maintain privilege”.

For more information from Shannon on the due diligence process read the full article.

The Risks of Using Finders and Unregistered Brokers 06/21/2017

Posted by Morse Barnes-Brown Pendleton in Attorney News, Corporate, Financial Services, Private Investment Funds & Advisers.
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JHW Headshot Photo 2016 (M0990045xB1386)Private fund managers often use placement agents, finders, and other intermediaries to help raise capital for their investment funds. Using an intermediary that has failed to register as a broker-dealer, however, is fraught with risk. In his article “The Risks of Using Finders and Unregistered Brokers”, private funds attorney Josh Watson cautions against using unregistered brokers and describes how to determine when an intermediary should be registered.

Read the full article on our website. For more information, please contact Josh Watson or a member of our PIFA practice.

Registration Exemptions for Investment Advisers 06/08/2017

Posted by Morse Barnes-Brown Pendleton in Attorney News, Corporate, Financial Services, MBBP news, Private Investment Funds & Advisers, Venture Capital & Private Equity.
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JHW Headshot Photo 2016 (M0990045xB1386)When may an investment adviser avoid registering with the Securities and Exchange Commission? Private funds attorney Josh Watson answers this question in his article “Registration Exemptions for Investment Advisers” that summarizes the requirements of two registration exemptions that are available to managers of private investment funds.

To learn about the two registration exemptions read the full article on our website. For more information, please contact Josh Watson or a member of our PIFA practice.

Encore Event! Strategic Alliances: Pot of Gold or Pretty Poison? – Life Sciences Series, June 28 06/05/2017

Posted by Morse Barnes-Brown Pendleton in Attorney News, Corporate, Events, Life Sciences, MBBP news.
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JMH Headshot Photo 2015 (M0846571xB1386)Due to overwhelming demand for our April 28 “Strategic Alliances: Pot of Gold or Pretty Poison?” event, we will be holding another round on Wednesday, June 28 at the Cambridge Innovation Center (CIC). Moderated by corporate attorney John Hession, a panel of business development experts will explore various research and collaboration structures, from options to license to comprehensive collaboration partnerships. The panel will discuss various licensing vehicles, the importance of concise fields of use descriptions, sample economics, and conventional transaction structures.

Space is limited! View our event page for more information and to register for the event.

Tales from the Trenches: Reflections on Successful Exits – Venture Capital Event, May 18 04/28/2017

Posted by Morse Barnes-Brown Pendleton in Attorney News, Corporate, Events, MBBP news, Venture Capital & Private Equity.
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M0846500Our Venture Capital team will be hosting a panel event, Tales from the Trenches: Reflections on Successful Exits, on Thursday May 18 at the Cambridge Innovation Center (CIC). Moderated by corporate partner Scott Bleier, a panel of entrepreneurs will share stories about how they built and eventually sold their companies to large strategic acquirers.

Space is limited! View our VCs and Startups blog for more information, including how to register.

MBBP’s Life Sciences Vector Newsletter, Spring 2017 04/20/2017

Posted by Morse Barnes-Brown Pendleton in Attorney News, Corporate, Intellectual Property, Life Sciences, MBBP news, New Resources.
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Our Life Sciences team has published the Spring 2017 edition of its newsletter, Vector. Below you will find brief descriptions of the news and articles included in the publication. Read the full newsletter for more information.

DAVID CZARNECKI AND STANLEY CHALVIRE ELEVATED WITHIN THE FIRM

We are pleased to announce that David Czarnecki and Stanley Chalvire have been elevated to Member. Dave is exceptionally proficient in guiding both buyers and sellers through a wide range of corporate transactions. Stan is a Registered Patent Attorney, specializing in the licensing of intellectual property and related counseling.

AMANDA PHILLIPS NAMED 2017 UP & COMING LAWYER

Litigation associate Amanda Phillips has been named a 2017 Up & Coming Lawyer by Massachusetts Lawyers Weekly. The recognition is awarded to a select number of attorneys who have been practicing for fewer than 10 years but whose professional achievements are noteworthy and whose service to the community is also significant.

CORPORATE ATTORNEY MICHAEL JABBAWY JOINS FIRM AS PARTNER

Michael’s practice is focused primarily in the areas of emerging and growth technology companies, venture capital, M&A transactions, and corporate governance. As a member of the Corporate Department, Michael advises technology and other emerging companies through each stage of growth. Prior to joining MBBP, Michael was a member of the Technology Companies group at Goodwin Procter LLP.

RECENT LIFE SCIENCES TRANSACTIONS

MBBP represented several clients in life sciences transactions, including iSpecimen, Orionis Biosciences, First Light Biosciences, and Manus Biosynthesis. The transactions ranged from convertible debt to equity investments. Learn more on page 2.

FREEDOM TO OPERATE: PREVENTION IS THE BEST MEDICINE

Launching a new product or service can be fraught with uncertainty and involve large expenditures of limited resources. An FTO opinion can reduce uncertainty and provide some insurance against loss from an unfavorable finding of infringement of another’s patent. An FTO opinion makes a determination whether a product or service infringes issued patents. In other words, the opinion indicates whether or not there is “freedom to operate” the product or service within the patent landscape. Often, FTO opinions also identify patent applications that, if later issued as patents, may be problematic. Read the full article on page 2.

THE PATENT PROCESS: GET ON THE FAST TRACK

One of the biggest frustrations for patent applicants is the incredibly slow pace at which an application proceeds from filing to receipt of a substantive examination report to allowance. On average it takes 15.7 months for a patent application to receive even a first substantive examination report, though there is significant variability across technology areas. The Patent Office has recognized this problem and implemented several initiatives which attempt to address the problem from different angles. Two programs in particular have gained traction: the Patent Prosecution Highway (PPH) and Track One Prioritized Examination. Continue reading for more information about these programs.

OWNERSHIP OF ARISING INVENTIONS IN JOINT DEVELOPMENT AGREEMENTS

Collaboration remains a valuable means of fostering innovation and advancing scientific, clinical and commercial objectives. Towards that end, two or more parties contemplating a collaboration often consider entering into a Joint Development Agreement, where they define, among other things, their respective contributions and responsibilities towards their common objectives. These types of collaborations require a careful and thorough consideration of the disposition of intellectual property rights that may arise as a result of each party’s performance of its responsibilities under such collaborations. Read more starting on page 3.

GUEST COLUMN:
FOR SKILLED IMMIGRATION TO THE U.S., THE TIMES, THEY MAY BE CHANGING

The last year of the Obama Administration saw an increased activism by President Obama in the area of skilled immigration. Through Executive Orders and regulations, the President made a number of important changes including providing Employment Authorization for spouses on H-4 visas, increasing the period of post-graduate employment authorization for foreign students in STEM fields (Science, Technology, Engineering and Mathematics), increasing the number of academic fields included in STEM and formalizing a grace period for foreign nationals on H-1B visas that find themselves between jobs. Read the full article beginning on page 5.

MBBP Corporate Attorneys Represent Mosse & Mosse Associates in Acquisition of Certain Assets by Risk Strategies Company 04/12/2017

Posted by Morse Barnes-Brown Pendleton in Attorney News, Client News, Corporate, Deal News, MBBP news.
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A team of Morse Barnes Brown Pendleton attorneys, led by Joe Marrow, Dave Czarnecki, Kelly Hinkel and corporate paralegal Yongha Lee, recently represented our client Mosse & Mosse Associates, LLC in a sale of certain assets to Risk Strategies Company. Mosse & Mosse provides its client base with both employee benefits and retirement plan consulting services. Risk Strategies Company, a privately-held, rapidly-growing national insurance brokerage and risk management firm, has expanded its employee benefits practice and expertise through the Mosse & Mosse acquisition. The sale of assets did not include Mosse & Mosse’s benefits business related to municipalities and educational institutions, and MBBP will continue to represent Mosse & Mosse in that on-going enterprise.

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