Due to the state of emergency that has been declared by North Carolina’s Governor in response to the COVID-19 crisis, the Director of the Office of Administrative Hearings (OAH) has invoked the emergency waiver found in 26 NCAC 01 .0105 for the purpose of waiving all time limitations contained in all Sections of 26 NCAC Chapter 03 – Hearings Division, except 26 NCAC 03 .0127. (The time limitation in 26 NCAC 03 .0127 applies only to administrative law judges).
This waiver applies to all contested cases now pending and hereafter filed at OAH until this waiver is revoked.
Please direct any questions regarding the notice to:
The selling process for a privately held company has many nuances, including the analysis of the total value of a transaction. For the experienced seller and their team, terms and conditions of the deal can be just as critical as the purchase price. One of those key terms is called the working capital target.
In accounting terms, working capital is equal to current assets minus current liabilities. In middle market M&A transactions (those beyond the small, Main Street asset deals), the selling company is typically expected to deliver a normalized level of working capital (which is defined slightly differently from the accounting definition, as we discuss later) to support the operations of the business post-closing. Calculating the working capital and figuring the basis for the analysis is somewhat of an art and often changes depending upon the norms within a specific industry. Historical trends can be a sound baseline for establishing the target amount. The argument that a buyer can operate the seller’s company with less working capital than the seller is hard to defend without evidence. In growth financings, tightening the working capital cycle can provide a cheap and quickly accessed source of funding. In both M&A and growth financing, optimizing the working capital cycle and assuring efficient use of this capital will increase the value of the business by decreasing or minimizing the capital required to fund the operating cycle.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00Businesshttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngBusiness2020-03-27 15:35:012020-03-30 10:20:10The Art of Negotiating Working Capital in M&A Transactions
The Export-Import Bank (“Ex-Im”) has taken a few steps to increase liquidity in export transactions—among them, it created a new Bridge Loan Program for foreign buyers. More info can be found here.
The emergency relief bill that passed the Senate is divided into two sections. The first section covers small business interruption loans and the second covers relief for individuals, families, and businesses.
The [SBA] Administrator shall reimburse any recipient of assistance under section 22(l) of the Small Business Act (15 U.S.C. 649(l)) for financial losses relating to a foreign trade mission or a trade show exhibition that was cancelled solely due to a public health emergency declared due to COVID–19 if the reimbursement does not exceed a recipient’s grant funding. It’s Section 1104 in this bill.For an overview of each of their response actions, click here.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00International Practicehttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngInternational Practice2020-03-27 12:14:272020-03-27 13:18:09COVID-19 Relief Information for Small Businesses from U.S. Department of Commerce
COVID-19 and the ensuing shutdown of much of the economy will affect construction projects dramatically. Projects have become more difficult to perform as industry participants juggle their obligations to their customers, employees, and the public. The impacts will get worse before they get better. This article identifies some construction law issues facing owners, contractors, subcontractors, and suppliers grappling with the impacts of the virus.
When a contractor or subcontractor cannot meet the project schedule, does COVID-19 excuse the delay and warrant a time extension? It depends on the language of the contract. As discussed by my colleague, David Robinson, in his March 3 Insight, in most US jurisdictions, epidemics, pandemics, and other unforeseeable Acts of God do not automatically excuse breaches of contract. In order to determine whether COVID 19 provides an excuse, begin by looking at the terms of the relevant contract.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00Constructionhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngConstruction2020-03-27 08:08:512020-03-27 09:47:45Construction Law Alert: COVID-19’s Impacts on Construction Projects
The Industrial Commission continues to review and evaluate its various policies in light of the ongoing COVID-19 situation. Below are the most recent updates from the Commission concerning its Secure Leave Policy and accepting agreements signed through DocuSign.
The Industrial Commission recognizes that the COVID-19 pandemic will result in attorneys having to reschedule vacations, non-emergency medical procedures, and other plans for which secure leave was obtained. The rescheduled plans may then fall within the same calendar year for which three weeks of secure leave already has been granted and/or may not be known until less than 90 days before the requested secure leave period. Any attorney faced with this situation may file a motion under 11 NCAC 23E .0301 (Waiver of Rules) asking for a waiver or variance of the requirements or provisions of 11 NCAC 23E .0104 (Secure Leave Period for Attorneys). This motion should be filed in conjunction with the new secure leave written request.
The COVID-19 crisis has not affected the Notary law in North Carolina. However, the NC Secretary of State’s Office has issued guidance on how to comply with the in-person appearance requirements in this time of practicing social distancing. Some steps that can be taken to reduce exposure to the Notary and the principal (“signer”) are the same as the recommended COVID-19 precautions we should all be practicing such as not shaking hands, cleaning your hands often, cleaning and disinfecting frequently touched surfaces and keeping a 6-foot distance from others. Specific suggestions when notarizing documents are to not share pens (ask the signer to use their own pen), viewing the identification from the tabletop instead of touching the identification, and standing at the opposite ends of a long conference table. Some firms are offering curbside notary services or other outside options as ways to keep their employees and clients safe. These Notary challenges will be increased for parties that reach an agreement while they are participating in a mediation conducted via electronic means. It will be a process of getting the documents to each party at their location and then having them signed and notarized.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00International Practicehttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngInternational Practice2020-03-26 11:00:472020-03-26 11:02:17Notarization During the COVID-19 Crisis
Our section membership has a strong tradition of supporting and participating in pro bono and community service activities—both those planned and sponsored by the NCBA and those that you undertake on your own or with other organizations. We are in unprecedented times with COVID-19 (Coronavirus), and I am confident that each of you is doing your part.
Even in the best of times, however, over 1.5 Million North Carolinians struggle with hunger—of those nearly half a million are children. With public schools and many religious and nonprofit organizations that traditionally serve the food insecure in our communities being closed for indefinite periods and government leaders calling for social distancing to help limit the spread of Coronavirus, that need is never more pressing than now.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00Laborhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngLabor2020-03-26 09:38:172020-03-26 09:49:02Fight Hunger, Help Others in the COVID-19 Pandemic – Participate in the Legal Feeding Frenzy and Support Your Local Food Bank!
I hope that you are managing well in this COVID-19 world we find ourselves in today. It is an understatement to say that it has definitely changed our lives and had drastic effects on how we conduct our law practices and businesses. I want to let you know that your Council and NCBA leadership have been working diligently with other groups involved in the real estate industry to help keep us “open for business” and develop alternatives that may be necessary to allow that to happen. The Council held a special call in/Zoom meeting this past Monday to discuss and strategize on what is happening and what may need to happen.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00RealPropertyhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngRealProperty2020-03-25 16:00:452022-10-24 13:00:09Report from Real Property Section Council Meeting
As we all search for ways to help others during this difficult time, consider volunteering your legal skills on NC Free Legal Answers. See more information below on this opportunity as well as other resources, some of which were included in your weekly e-bar email.
NC Free Legal Answers: Pro Bono From Home
The NC Bar Foundation’s web-based program NC Free Legal Answers facilitates remote pro bono legal services to North Carolinians. Help low-income individuals by answering their brief family, housing, employment and consumer law questions. A growing number of COVID-19-related questions are being posted, including questions about custody rights under stay-at-home orders and rights to recover pre-paid daycare payments due to closures. Attorney volunteers are needed and registration is easy. Contact NCBF Pro Bono Staff Attorney Jeanine Soufan if you have any questions.
As a reminder, the NCBA provides resources to support members in various ways:
BarCARES focuses on improving the mental health and overall quality of life for NCBA members, local bar groups, and law students, offering no-cost assistance in dealing with personal, family, financial, work, and career stressors. Visit BarCARES online or call 800-640-0735 to arrange a telehealth or telephone appointment.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00International Practicehttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngInternational Practice2020-03-25 11:01:422020-03-25 15:42:58Pro Bono Opportunity From Home
Below is the most recent update from the Industrial Commission relative to COVID-19. This information was posted to the Industrial Commission website to address some questions received from attorneys about the current filing deadlines.
The Industrial Commission has received some inquiries from attorneys regarding its current filing deadline policy. At this time, the Commission has not granted an automatic, blanket extension of filing deadlines for the following reasons:
OAH Chief Judge Activates Emergency Hearings-Related Waiver
Administrative LawDue to the state of emergency that has been declared by North Carolina’s Governor in response to the COVID-19 crisis, the Director of the Office of Administrative Hearings (OAH) has invoked the emergency waiver found in 26 NCAC 01 .0105 for the purpose of waiving all time limitations contained in all Sections of 26 NCAC Chapter 03 – Hearings Division, except 26 NCAC 03 .0127. (The time limitation in 26 NCAC 03 .0127 applies only to administrative law judges).
This waiver applies to all contested cases now pending and hereafter filed at OAH until this waiver is revoked.
Please direct any questions regarding the notice to:
Bill Culpepper, General Counsel, (919) 431-3000, [email protected].
The Art of Negotiating Working Capital in M&A Transactions
Business LawKenneth H. Marks
John A. Howard
By Kenneth H. Marks and John A. Howard
The selling process for a privately held company has many nuances, including the analysis of the total value of a transaction. For the experienced seller and their team, terms and conditions of the deal can be just as critical as the purchase price. One of those key terms is called the working capital target.
In accounting terms, working capital is equal to current assets minus current liabilities. In middle market M&A transactions (those beyond the small, Main Street asset deals), the selling company is typically expected to deliver a normalized level of working capital (which is defined slightly differently from the accounting definition, as we discuss later) to support the operations of the business post-closing. Calculating the working capital and figuring the basis for the analysis is somewhat of an art and often changes depending upon the norms within a specific industry. Historical trends can be a sound baseline for establishing the target amount. The argument that a buyer can operate the seller’s company with less working capital than the seller is hard to defend without evidence. In growth financings, tightening the working capital cycle can provide a cheap and quickly accessed source of funding. In both M&A and growth financing, optimizing the working capital cycle and assuring efficient use of this capital will increase the value of the business by decreasing or minimizing the capital required to fund the operating cycle.
Read more
COVID-19 Relief Information for Small Businesses from U.S. Department of Commerce
International Law, International Law & Practice, International PracticeConstruction Law Alert: COVID-19’s Impacts on Construction Projects
Construction Law SectionThis article was originally published by Nexsen Pruet and has been reposted with permission.
By Eric H. Biesecker
COVID-19 and the ensuing shutdown of much of the economy will affect construction projects dramatically. Projects have become more difficult to perform as industry participants juggle their obligations to their customers, employees, and the public. The impacts will get worse before they get better. This article identifies some construction law issues facing owners, contractors, subcontractors, and suppliers grappling with the impacts of the virus.
When a contractor or subcontractor cannot meet the project schedule, does COVID-19 excuse the delay and warrant a time extension? It depends on the language of the contract. As discussed by my colleague, David Robinson, in his March 3 Insight, in most US jurisdictions, epidemics, pandemics, and other unforeseeable Acts of God do not automatically excuse breaches of contract. In order to determine whether COVID 19 provides an excuse, begin by looking at the terms of the relevant contract.
Read more
Additional Updates from the Industrial Commission: Secure Leave / Document Signing
Workers' Compensation SectionBy Eleasa Allen
The Industrial Commission continues to review and evaluate its various policies in light of the ongoing COVID-19 situation. Below are the most recent updates from the Commission concerning its Secure Leave Policy and accepting agreements signed through DocuSign.
COVID-19 Response: Industrial Commission Secure Leave Policy
The Industrial Commission recognizes that the COVID-19 pandemic will result in attorneys having to reschedule vacations, non-emergency medical procedures, and other plans for which secure leave was obtained. The rescheduled plans may then fall within the same calendar year for which three weeks of secure leave already has been granted and/or may not be known until less than 90 days before the requested secure leave period. Any attorney faced with this situation may file a motion under 11 NCAC 23E .0301 (Waiver of Rules) asking for a waiver or variance of the requirements or provisions of 11 NCAC 23E .0104 (Secure Leave Period for Attorneys). This motion should be filed in conjunction with the new secure leave written request.
Read more
Notarization During the COVID-19 Crisis
International Law, International Law & Practice, International PracticeLaura Linfante
Pam Deeds Stewart
By Lori Linfante and Pam Deeds Stewart
The COVID-19 crisis has not affected the Notary law in North Carolina. However, the NC Secretary of State’s Office has issued guidance on how to comply with the in-person appearance requirements in this time of practicing social distancing. Some steps that can be taken to reduce exposure to the Notary and the principal (“signer”) are the same as the recommended COVID-19 precautions we should all be practicing such as not shaking hands, cleaning your hands often, cleaning and disinfecting frequently touched surfaces and keeping a 6-foot distance from others. Specific suggestions when notarizing documents are to not share pens (ask the signer to use their own pen), viewing the identification from the tabletop instead of touching the identification, and standing at the opposite ends of a long conference table. Some firms are offering curbside notary services or other outside options as ways to keep their employees and clients safe. These Notary challenges will be increased for parties that reach an agreement while they are participating in a mediation conducted via electronic means. It will be a process of getting the documents to each party at their location and then having them signed and notarized.
Read more
Fight Hunger, Help Others in the COVID-19 Pandemic – Participate in the Legal Feeding Frenzy and Support Your Local Food Bank!
Labor & Employment LawMichele Livingstone
Will Quick
By Michele Livingstone and Will Quick
Our section membership has a strong tradition of supporting and participating in pro bono and community service activities—both those planned and sponsored by the NCBA and those that you undertake on your own or with other organizations. We are in unprecedented times with COVID-19 (Coronavirus), and I am confident that each of you is doing your part.
Even in the best of times, however, over 1.5 Million North Carolinians struggle with hunger—of those nearly half a million are children. With public schools and many religious and nonprofit organizations that traditionally serve the food insecure in our communities being closed for indefinite periods and government leaders calling for social distancing to help limit the spread of Coronavirus, that need is never more pressing than now.
Read more
Report from Real Property Section Council Meeting
Real PropertyBy Brian Z. Taylor
Real Property Section Members,
I hope that you are managing well in this COVID-19 world we find ourselves in today. It is an understatement to say that it has definitely changed our lives and had drastic effects on how we conduct our law practices and businesses. I want to let you know that your Council and NCBA leadership have been working diligently with other groups involved in the real estate industry to help keep us “open for business” and develop alternatives that may be necessary to allow that to happen. The Council held a special call in/Zoom meeting this past Monday to discuss and strategize on what is happening and what may need to happen.
Read more
Pro Bono Opportunity From Home
International Law, International Law & Practice, International PracticeAs we all search for ways to help others during this difficult time, consider volunteering your legal skills on NC Free Legal Answers. See more information below on this opportunity as well as other resources, some of which were included in your weekly e-bar email.
NC Free Legal Answers: Pro Bono From Home
The NC Bar Foundation’s web-based program NC Free Legal Answers facilitates remote pro bono legal services to North Carolinians. Help low-income individuals by answering their brief family, housing, employment and consumer law questions. A growing number of COVID-19-related questions are being posted, including questions about custody rights under stay-at-home orders and rights to recover pre-paid daycare payments due to closures. Attorney volunteers are needed and registration is easy. Contact NCBF Pro Bono Staff Attorney Jeanine Soufan if you have any questions.
As a reminder, the NCBA provides resources to support members in various ways:
IC Update Regarding COVID-19 Response
Workers' Compensation SectionBy Eleasa Allen
Below is the most recent update from the Industrial Commission relative to COVID-19. This information was posted to the Industrial Commission website to address some questions received from attorneys about the current filing deadlines.
COVID-19 Response: Industrial Commission Filing Deadline Policy
The Industrial Commission has received some inquiries from attorneys regarding its current filing deadline policy. At this time, the Commission has not granted an automatic, blanket extension of filing deadlines for the following reasons:
Read more