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Post-Acquisition Audit and Implementation of Legal Processes and Controls

 

During diligence for PE and VC-backed company acquisitions, the buyer’s deal counsel often identifies a laundry-list of missing or inadequate legal processes and controls. The absence of these items may not be deal-breakers, but it nonetheless is imperative that the key ones be addressed post-closing.

Inhouse General Counsels or CLOs are typically well-positioned to project manage the post-closing audit process to identify what legal processes or controls are lacking. These inhouse legal managers also are particularly adept at following-through with the sometimes-tedious process of developing and implementing those items that must be addressed. The challenge is, many companies simply are not big enough or do not have the budget to sustain a fulltime senior lawyer.

As former inhouse GCs with extensive expertise in these matters, Cliffside Legal Advisers are able to effectively provide these services at a reasonable cost. In so doing, we work closely with senior management to fully understand the company’s business challenges, products, and market. Our goal is to embed with the company and cultivate a long-term relationship so that, after the audit and implementation process is completed, we will remain a trusted resource for providing strategic legal advice that will result in successful and legally-viable business outcomes.

Corporate Governance

Develop and maintain key corporate records, including Articles of Incorporation, Bylaws, Board minutes, and all corporate resolutions; secure Board approval of annual budget, bonus plans, bonus payout, and substantial equity grants; develop and maintain Delegation of Authority document specifying approval and signature requirements for sales, procurement, and partner agreements.

Revenue Contracts

Ensure the company deploys sound contract negotiation and review practices so that sales agreements avoid terms that would result in unacceptable risk for the company.

Procurement Contracts

Develop protocols for the mandatory review by legal counsel or other qualified professional of all substantial procurement contracts to protect company data, avoid undue risk of third-party liability, remove undesirable automatic renewal (Evergreen) provisions, ensure adequate warranty and indemnification protections, etc.

Employment and Executive Compensation

Develop and maintain signed employment agreements containing confidentiality, invention assignment, and non-solicitation provisions and, for key employees, non-competition restrictions; facilitate the adoption of an employee handbook and essential corporate policies.

Intellectual Property

Maintain database of all U.S. and foreign (pending and approved) patents, trademarks, and copyrights and implement a process for the timely payments of annuities, (whether inhouse or through outside counsel); implement program for protecting trademarks that includes:

  1. retaining evidence of use;
  2. in all written materials, correctly utilizing trademarks and inserting proper trademark designations;
  3. monitoring use of similar trademarks by third-parties in the market; and
  4. sending cease and desist letters and filing court actions as needed.

Data Privacy

Develop and maintain a sound data-privacy compliance program that includes:

  1. publicly-facing and internal privacy notices, Data Protection Policy, and customer and vendor Data Processing Agreements;
  2. company-wide data mapping; and
  3. for data transfers out of the EU and UK, the creation of Transfer Impact Assessments warranting that, in accordance with the laws and practices of the destination country, the personal data being transferred will have no less protection than that of the country of origin.

Compliance Training

Assist with the development of annual compliance training that includes:

  1. Code of Conduct
  2. sexual-harassment-avoidance and non-discrimination
  3. FCPA/anti-bribery
  4. cyber security.

Foreign Subsidiaries

For all foreign subsidiaries, maintain proper corporate formalities, ensure that all regulatory fees are paid, all required filings are made, and the entities are otherwise in good standing with local authorities.

Litigation and Dispute Resolution

Assist with the selection of, and manage, outside litigation counsel; and manage the resolution of customer, vendor, and partner disputes.

Insurance

Facilitate the securing of the appropriate levels of coverage for: general liability, personal and real property, errors and omissions, cyber-security, employment practices liability, D&O, and worker’s compensation.

Let's Work Together

For more information on how Cliffside Legal Advisors can assist your company, please contact us at:

Cliffside Legal Advisors
4 Cliffside Drive
Harvard, MA 01451

Phone: (617) 388-4547