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Representing High-Tech Companies

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by Gary M. Lawrence, Carl Baranowski


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Counseling clients in transactions involving high-tech companies requires familiarity with several of the most complex areas of law, finance and technology. Representing High-Tech Companies is a one-of-a-kind book, designed to help you handle the whole range of legal issues in this dynamic field. Whether you are building a technology practice from the ground up or want to represent your existing clients more effectively, this book will bring you up to speed and help you stay ahead of the pack.

You'll find out about: financing and documenting joint ventures and early-stage strategic partnerships; devising workable nondisclosure agreements; managing an intellectual property portfolio; minimizing litigation risk for public technology companies; designing employment contracts and benefit plans in a highly competitive industry; handling securities laws, import/export controls, and other aspects of the regulatory scheme; and many other “hot button” legal issues facing technology-driven businesses. Featuring more than 75 forms and checklists, and a remarkable high-tech glossary of industry terms, phrases, and acronyms, Representing High-Tech Companies will quickly become your favorite legal reference. All of the forms are included in the text of the book and the online version.

Book #00648; looseleaf, one volume, 1,330 pages; published in 1999, updated as needed; no additional charge for updates during your subscription. Looseleaf print subscribers receive supplements. The online edition is updated automatically. ISBN: 978-1-58852-085-2


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  • Availability: Available
  • Brand: Law Journal Press
  • Product Type: Books
  • Edition: 0
  • Page Count: 1330
  • ISBN: 978-1-58852-085-2
  • Pub#/SKU#: 648
  • Volume(s): 1
  • CDs: 1

Author Image
  • Gary M. Lawrence
Gary M. Lawrence, J.D. is one of the country’s leading due diligence, investment and transactional scholars. He is a member of the adjunct faculty of the Dedman School of Law at Southern Methodist University where he teaches Due Diligence Studies to JD, MBA and LLM candidates. He is also executive director of the Center for Advanced Due Diligence Studies (www.CADDS-EDU.org), and has served as an expert witness in some of the country’s most significant investment, due diligence and fraud related lawsuits.  Previously, Professor Lawrence was a senior partner with a major international law firm where he chaired the global technology, media and telecommunications transactions practice and was a member of the firm’s global management committee.

Also by Gary M. Lawrence:
Due Diligence in Business Transactions


Author Image
  • Carl Baranowski
Carl Baranowski is a private practice attorney specializing in technology businesses and is founder and President of Corpmaster LLC, a development-stage provider of Web-based knowledge management sources to corporate and private counsel. He was formerly Director of Worldwide Best Practices in the Washington, D.C. office of Akin Gump Strauss Hauer & Feld LLP. He has served as counsel at Jabil Circuit, Inc., Dorsey & Whitney LLP, Honeywell Inc. and Gateway, Inc. and was also a software business development manager at Texas Instruments Incorporated. Mr. Baranowski has extensive experience representing high-technology companies and start-up ventures. In 1979, he received two Bachelor of Science degrees and a Master of Science degree from the Massachusetts Institute of Technology. Mr. Baranowski received his J.D. from Stanford University in 1983, where he also earned an M.B.A. He is a member of the Texas Bar.

CHAPTER 1
Introduction and Overview

§ 1.01 The Broad Range of Technology Companies
§ 1.02 The Scope of Legal, Business and Financial Issues
§ 1.03 Terminology and Terms of Art
§ 1.04 Industry Volatility
§ 1.05 The Internet

CHAPTER 2
Entity Selection and Financing Issues for Early-Stage Ventures

§ 2.01 Overview
§ 2.02 Selecting the Right Legal Entity
[1] Overview
[2] Structural Alternatives
[3] Considerations Regarding Tax Treatment and Liability
[4] Putting It All Together
§ 2.03 Financing Alternatives
[1] Stages of Financing
[2] Obtaining Funds; Selected Sources
[3] Importance of an Introduction
§ 2.04 Executive Summaries and Business Plan
[1] How to Prepare an Effective Executive Summary
[2] How to Prepare an Effective Business Plan
§ 2.05 Valuation Issues
§ 2.06 Financing Term Sheets
[1] Overview
[2] Negotiation
[3] Term Sheet Components
§ 2.07 Venture Capital Term Sheets
[1] Overview
[2] Checklist
§ 2.08 Importance of the Management Team
§ 2.09 Negotiating Definitive Agreements
[1] Selected Purchase Agreement Considerations
[2] Selected Stockholder Agreement Considerations
[3] Restated Certificate of Incorporation
§ 2.10 Form: Short-Form Subscription Agreement (Issuer Favorable)
§ 2.11 
Form: Convertible Preferred Stock Subscription Agreement with Alternative Pro-Issuer Provisions Included (Investor Favorable)
§ 2.12 
Form: Investor Rights Agreement (Pro-Investor)
§ 2.13 
Form: Right of First Refusal and Co-Sale Agreement (Pro-Issuer)
§ 2.14 
Form: Restated Certificate of Incorporation—Delaware (Pro-Investor)
§ 2.15 
Form: Technology Company Pre-Investment Checklist
§ 2.16 
Form: Outline for Technology Company Financing Proposal
§ 2.17 
Form: Financing Presentation Checklist
§ 2.18 
Form: Financing Term Sheet: Convertible Preferred Equity

CHAPTER 3
Confidentiality and Nondisclosure Agreements

§ 3.01 Introduction
§ 3.02 Protecting Confidential Information
[1] Uniform Trade Secrets Act
[2] Economic Espionage Act
§ 3.03 Enforceability of Nondisclosure Agreements
[1] Overview
[2] Protectable Information Risk
[3] Temporal and Geographic Scope Risk
[4] Statutory Preemption Risk
[5] Discovery Risk
[6] Antitrust Risk
[7] Nondisclosure Agreements in the Telecommunications Industry
§ 3.04 Selected Drafting Guidelines
[1] Enforceability Considerations
[2] Other General Drafting Considerations
§ 3.05 Form: Negotiated Proposed Transaction Nondisclosure Letter Agreement (Target Company Favorable)
§ 3.06 Form: Mutual Nondisclosure Agreement
§ 3.07 Form: Third Party Provider Nondisclosure Agreement (Retaining Company Favorable)
§ 3.08 Form: Memorandum Regarding Antitrust Considerations with Respect to Nondisclosure Agreements

CHAPTER 4
Term Sheets, and Letters of Intent

§ 4.01 Introduction
§ 4.02 Initial Steps
§ 4.03 Term Sheets
[1] Definition
[2] Purpose
[3] When to Use Term Sheets
§ 4.04 Letters of Intent
[1] Definition
[2] Purpose
[3] When to Use
[4] Selected Advantages
[5] Possible Disadvantages
[6] Binding, Nonbinding and “Binding in Part” Letters of Intent
§ 4.05 Selected Legal Considerations
[1] Introduction
[2] Risks
§ 4.06 Guidelines: Letters of Intent
§ 4.07 Workform: Term Sheets and Letters of Intent
§ 4.08 Form: Letter of Intent: Joint Venture
§ 4.09 Form: Term Sheet for Joint Venture
§ 4.10 Form: Letter of Intent—Share Acquisition (Short Form)
§ 4.11 Form: Post-Letter of Intent Document Request List
§ 4.12 Checklist: Post-Letter of Intent Due Diligence

CHAPTER 5
Joint Ventures and Strategic Partnering

§ 5.01 Introduction
§ 5.02 Development and Manufacturing Joint Ventures
[1] Overview
[2] Technology Considerations
[3] Engineering Changes
[4] Rights of First Refusal
[5] Initial Fees and Minimum Commitments
[6] Ordering Protocols
[7] Foreign Exchange Risk
[8] Product Promotion and Training
[9] Defective Products
[10] Warranty
[11] Government Contracts
§ 5.03 Combined Software and Services Ventures
[1] Overview
[2] Order Details, Customer Data and Other Basic Information
[3] Description of Software Licensed
[4] Defining Limits of “Use” of Software
[5] Software License Restrictions
[6] Confidentiality
[7] Description of Services to Be Provided
[8] Alternative Provisions
§ 5.04 Co-Marketing
§ 5.05 Pre-Development Marketing
[1] Finder’s Fee
[2] Development Incentives
[3] Recoupment
[4] Pricing
[5] Distribution Restrictions
[6] Exclusivity
[7] Support Obligations
[8] The Software License Agreement
§ 5.06 Hardware Co-Development
[1] Defining the Technology
[2] Project Management
[3] Antitrust Issues
[4] Conflicting Arrangements
§ 5.06A International Distributorships and Technology Licensing
[1] Overview
[2] Selecting Foreign Distributors and Licensees
[3] Legal Requirements
[4] Sources of Information
[5] Record-Keeping and Disclosure
[6] International Tax Implications
[7] Executing Agreements
[8] Continuing Economic Incentives
[9] Protecting Intellectual Property
[10] Relationship and Contract Management
§ 5.06B Subcontractors and Tooling
§ 5.07 Form: IT Hardware Design and Production Agreement
§ 5.08 Form: Software License and Development Agreement
§ 5.09 Form: Software Marketing Agreement (Short Form)
§ 5.10 Form: Software Marketing Agreement (Long Form)
§ 5.11 Form: Joint IPR Development Agreement
§ 5.12 Form: Computer Hardware Distribution Agreement
§ 5.13 Form: Joint Venture Partners Exclusive License Agreement
§ 5.14 Form: Distributor Due Diligence Questionnaire
§ 5.15 Form: Electronics Joint Venture Agreement
§ 5.16 Checklist: IPR Joint Venture Agreements
§ 5.17 Form: Tooling Agreement (Short Form)
§ 5.18 Form: Reseller Agreement
§ 5.19 Form: License and Supply Agreement (Semiconductors)
§ 5.20 Form: Relationship Agreement 

CHAPTER 6
Selected Business Contracts

§ 6.01 Introduction
§ 6.02 Software Licensing
[1] Modifications to Source Code
[2] Work Product
[3] License Restrictions
[4] Customer Remedies; Exhibits
§ 6.03 Form: Software License Agreement
§ 6.04 Development/Work-for-Hire Agreement
[1] Title
[2] Indemnification and Limitations on Remedies
[3] Statement of Work
§ 6.05 Form: Development/Work-for-Hire Agreement
§ 6.06 Form: Source Code License Agreement
§ 6.07 Form: Outsourced Software Programming Agreement (Vendor-Centric)
§ 6.08 Form: Outsourced Software Programming Contract (Client-Centric)
§ 6.09 Form: Software Licensing Transaction Checklist
§ 6.10 Internet Hosting and Transaction Services Agreement
[1] Services Offered by ISPs
[2] Related Contract Terms and Liability-Minimizing Steps
§ 6.11 Form: Website Development Agreement
§ 6.12 Form: Website Hosting Agreement
§ 6.13 Form: Comprehensive Web Services Agreement
§ 6.14 Form: Domain Name Assignment Agreement
§ 6.14A Form: Electronic Medical Record Hosting Agreement
§ 6.15 Form: Trademark and Domain Name Licensing Agreement
§ 6.16 Internet Strategic Alliances
[1] Introduction
[2] Key Business Issues
§ 6.17 Form: Social Media Content Services Agreement (B2B)
§ 6.18 Technology: System (Equipment) Lease
§ 6.19 Form: Technology Equipment Lease
§ 6.20 Establishing Industry Standards
[1] Open Standards
[2] Non-Assertion of Intellectual Property Rights
[3] Trademark License
[4] Technical Standard; Development; Antitrust
§ 6.21 Form: License of Technology and Non-Assertion of Intellectual Property Rights
§ 6.22 Managing Exchange Rate Risk in Commercial Contracts
§ 6.23 Form: Exchange Rate Addendum
§ 6.24 Form: Purchase and Manufacturing Services Agreement
§ 6.25 Form: Surgical Robot Purchase Agreement
§ 6.26 Form: Transition Services Agreement (M&A; Hospital)
§ 6.27 Form: Distribution and License Agreement (Secondary Fermentation of Heterogeneous Microbial Cultures)
§ 6.28 Form: Technology Start-Up Incubator—License for Space

CHAPTER 7
Intellectual Property

§ 7.01 Overview
§ 7.02 A Primer on Intellectual Property (Using an Illustrative Hypothetical Example)
§ 7.03 Copyrights
[1] Items That Can Be Copyrighted
[2]  General Principles
[3]  Steps to Obtain Copyright Protection
[4]  The Digital Millennium Copyright Act (DMCA)
[5]  Computer Fraud and Abuse Act (CFAA)
§ 7.04 Trademarks
[1] Items That Can Be Protected as Trademarks
[2] General Principles
[3] Product Identification
[4] Steps to Obtain and Keep Trademark Protection
§ 7.05 Trade Secrets
[1] Types of Information That Can Be Protected
[2] General Principles
[3] State Law, the Inevitable Disclosure Doctrine and the Defend Trade Secrets Act
[4] Steps to Obtain and Keep Trade Secret Protection: Security Against Disclosures by Non-Employees
[5] Steps to Obtain and Keep Trade Secret Protection: Security Against Disclosures by Employees
[6] Steps to Obtain and Keep Trade Secret Protection: Security Coordinators
§ 7.06 Patents
[1] Items That Can Be Patented
[2] General Principles
[3] Steps to Obtain Patent Protection
[4] Infringement Analysis
§ 7.07 Information Held as a Fiduciary
[1] Types of Information Subject to Fiduciary Law
[2] General Principles
[3] Steps to Maintain the Confidentiality of Information Subject to Fiduciary Law
§ 7.08 Intellectual Property as Collateral
§ 7.09 Mask Works
[1] Defined
[2] Protection Compared to Copyright, Patent Law
[3] Scope, Duration of Protection
§ 7.10 Biotechnology
[1] Overview
[2] History of United States Patent Protection for Organisms
[3] A Brief Explanation of Biotechnology
[4] Special Application of Intellectual Property Law to Biotechnology
[5] Inventorship
[6] Utility
[7] Obviousness
[8] Enablement
[9] Licensing
[10] Infringement
§ 7.11 Intellectual Property on the Internet
[1] Introduction
[2] Metatags and Trademark Infringement
[3] Internet File Sharing, Contributory Infringement, and Fair Use of Copyrighted Material
[4] Social Media: Blogs, RSS Feeds and Podcasts
§ 7.12 The Economic Espionage Act of 1996
[1] Introduction
[2] Theft of Trade Secrets on Behalf of or for the Benefit of a Foreign Government
[3] Theft of Trade Secrets for Purely Economic or Commercial Reasons
[4] Trade Secrets Defined
[5] Penalties and Other Provisions
[6] Elements Required for Conviction
[7] A Two-Edged Sword
§ 7.13 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)
[1] Overview
[2] Standards for Protection
[3] Enforcement
[4] Dispute Settlement
[5] General Provisions
[6] Substantive Standards of Protection
[7] Enforcement and Remedies
[8] Miscellaneous Provisions
§ 7.14 Form: Patent License and Development Agreement (for License and Commercial Development of University-Based Research)
§ 7.15 Form: Patent Use Analysis Worksheet
§ 7.16 Form: Patent Cross-License Agreement
§ 7.17 Form: Employee Policy for Information Security
§ 7.18 Form: Collateral Assignment of Intellectual Property
§ 7.19 Form: Trademark Use Guidelines

CHAPTER 8
The Regulatory Environment

§ 8.01 Overview
§ 8.02 Exporting Technology
[1] “Export” Defined
[2] Jurisdiction
[3] Regulatory Framework
[4] Export Restrictions
[5] Other Multilateral Arrangement
[6] Exceptions
[7] Export License Types and Term
[8] Application Process
[9] Denial and Appeal
[10] Internal Compliance Program
[11] Penalties
[12] Encryption Technology
[13] Reform Initiative
§ 8.03 Importing Technology
[1] Overview
[2] International Trade Commission (ITC)
[3] Other Sources of Authority
§ 8.04 Foreign Investment in the United States
[1] Overview
[2] The Exon-Florio Amendment
[3] Bureau of Economic Analysis: Reporting Requirements
[4] Penalties; Enforcement
§ 8.05 Foreign Operations of United States Companies
[1] The Foreign Corrupt Practices Act
[2] The OECD Anti-Bribery Convention
§ 8.06 The Internet and Its Regulation
[1] Technology
[2] Domain Name Registration
[3] Anticybersquatting Consumer Protection Act
[4] Uniform Domain Name Dispute Resolution Policy (ICANN)
[5] Tasting, Kiting and Front Running
[6] Privacy and the Internet
[7] Interfacing with Other Areas of the Law
§ 8.07 Contract Execution
[1] “Shrink-Wrap” and “Click-Wrap”
[2] The Electronic Signatures in Global and National Commerce Act and the Uniform Electronic Transactions Act
§ 8.08 Antitrust
[1] Antitrust and Joint Ventures, Strategic Partnering, and Other Collaborations Between Competitors
[2] Antitrust and Licensing of Intellectual Property
[3] The Hart-Scott-Rodino Antitrust Improvements Act of 1976
§ 8.09 Bankruptcy and Licensing of Intellectual Property
[1] Executory Contracts
[2] Exclusive Licenses as Property Transfers
[3] Trademarks
[4] Bundled Rights
[5] Assignment
§ 8.10 Electronic Waste and the Environment
[1] An Emerging Problem
[2] European Union Regulations: The WEEE Directive and RoHS
[3] Industry Response
§ 8.11 Electronic Health Records
[1] Overview
[2] Professional Liability
[3] Confidentiality
[4] Reliability
§ 8.12 Legal Ethics, Professional Responsibility and the Internet
[1] Ethical Issues
[2] Attorney Websites
[3] Online Establishment of Attorney-Client Relationships
[4] Information Security
§ 8.13 Form: Sample Exon-Florio Notice
§ 8.14 Form: Foreign Corrupt Practices Act—Corporate Policy
§ 8.15 Form: Sample Hart-Scott-Rodino Item 4(c) Memoranda
[1] Long Form
[2] Short Form
§ 8.16 Form: Sample Website Privacy Statement

CHAPTER 9
Employee and Independent Contractors
§ 9.01 Introduction
§ 9.02 New Employee Agreements
[1] Enforceability
[2] “Reasonableness”
[3] Noncompetition Covenants
§ 9.03 Employment Agreements
[1] Termination
[2] Outside Business Activities
[3] Compensation
[4] Noncompetition, Confidentiality and Disclosure of Inventions
[5] Dispute Resolution
§ 9.04 Independent Contractors
[1] Overview
[2] Subcontractors
[3] Independent Contractor
[4] Protecting IPR
[5] Nondisclosure, Noncompete and Non-Solicitation Agreements
[6] The Fair Labor Standards Act Exemption
[7] Reductions in Force
§ 9.05 Stock Options in Employee Compensation
[1] Overview
[2] Qualified Stock Options
[3] Nonqualified Stock Options
[4] Stock Appreciation Rights (SARs), Phantom Stock, and Similar Equity Participation Interests
§ 9.06 Employee Stock Ownership Plans (ESOPs)
§ 9.07 Federal Securities Law
§ 9.08 Workplace Privacy
[1] Telephone Monitoring
[2] Computer Monitoring
[3] E mail and Voice Mail
[4] Employee Expectations of Privacy
[5] Employee Background Checks
§ 9.09 Social Responsibility
[1] Overview
[2] Electronic Industry Code of Conduct (EICC)
§ 9.10 Practical Guidance: Drafting the Stock Option Plan
[1] IRS Section 162 Compensation Limitations
[2] Plan Term
[3] “Option Pool”
[4] Authorized Share Adjustments
[5] Attributes of the Option Grant
[6] Vesting
[7] Mechanics
§ 9.11 Form: Employee New-Hire Agreement
§ 9.12 Form: Employment Agreement with Commentary
§ 9.13 Form: Employee Stock Option Plan (General)
§ 9.14 Form: Non-Employee Grantee Stock Option Plan
§ 9.15 Form: Employee Option Award
§ 9.16 Form: Non-Employee Option Award (General)
§ 9.17 Form: Employee Option Award Grantee Memorandum
§ 9.18 Form: Non-Employee Option Award Grantee Memorandum
§ 9.19 Checklist: Restrictive Covenants
§ 9.20 Form: Employee Retention Agreement

CHAPTER 10
Selected Issues for the Public Technology Companies

§ 10.01 Introduction and Overview
§ 10.02 The “Strike Suit” Phenomena
§ 10.03 Elective Disclosure Practices by Publicly Traded Technology Companies
[1] Overview
[2] Securities Exchange Act of 1934
[3] Securities Exchange Regulations
§ 10.04 “Soft Information” Disclosures
[1] Overview
[2] “Bespeaks Caution” Doctrine
[3] The Private Securities Litigation Reform Act
§ 10.05 Practical Guidelines
[1] Written Disclosures
[2] Website and Social Media Disclosures
[3] Oral Disclosures
§ 10.06 State Securities Laws and Related Lawsuits
[1] Overview
[2] Securities Litigation Uniform Standards Act
§ 10.07 Analyst Conference Calls and Other Communications
[1] Overview
[2] Liability Under the Anti-Fraud Provisions of the Exchange Act
[3] Liability Arising in Connection with Analyst Forecasts
§ 10.08 Considerations Under Other Provisions of the Federal Securities Laws
[1] Overview
[2] Officers, Directors, and Certain Shareholders
[3] Recommended Internal Company Procedures
[4] Conclusion
§ 10.09 Form: Selected Risk Disclosures–Software Company
§ 10.10 Form: Selected Risk Disclosures–Telecommunications Company
§ 10.11 Form: Confidential Information and Insider Trading Policy Internal Communication
§ 10.12 Form: Insider Trading Policy Statement
§ 10.13 Form: Pre-IPO Notice and Directive to Employees
§ 10.14 Form: Memorandum Regarding Reporting and Other Obligations of Public Companies
§ 10.15 Form: Disposition of Securities Memorandum
§ 10.16 Form: IPO Time and Responsibility Schedule
§ 10.17 Guidance: Selected Risk Factors–Social Media Company


Glossaries

INDEX