Corporate & Commercial Transactions Practice Group Experience
Mergers and Acquisitions: Wilkinson Barker attorneys have acted as regulatory and corporate counsel in connection with the purchase, sale and/or exchange of regulated and unregulated assets and/or companies. Our work includes assisting clients from initial strategic planning, due diligence, the negotiation of letters of intent, drafting deal documentation, obtaining required approvals, closing and post-closing matters. Matters range from the sale of individual assets to complex mergers, recapitalizations involving simultaneous equity/debt financings, and transactions implicating the foreign ownership limitations in the Communications Act, and the Federal Communications Commission’s (FCC’s) designated entity rules. Our work has included:
- Representation of Verizon Wireless in obtaining regulatory approvals for the transfer of Advanced Wireless Services licenses from a group of cable companies;
- Representation of NBC Universal in the sale by General Electric of its controlling interest to Comcast Corporation;
- Representation of various wireless and wireline licensees in transactions ranging from small asset sales to purchase/sale of multi-billion dollar regional operating systems;
- Representation of broadcasters with the purchase/sale of TV and radio stations with values ranging from a few hundred thousand dollars to over a billion dollars;
- Representation of Cingular Wireless in its $41 billion acquisition of AT&T Wireless;
- Served as regulatory counsel to Dobson Communications and Centennial Communications in connection with their respective mergers with AT&T;
- Represented Intel in connection with its $1 billion investment in Clearwire;
- Representation of private equity and other strategic investors in connection with media/telecom investments;
- Substantial experience working with sealed bids and acquisition of distressed assets (in the context of state insolvency proceedings, federal bankruptcy proceedings, and other debt-related settlements with the government); and
- Experience with DOJ and FCC-required divestitures arising out of mergers, including all FCC regulatory and operational issues associated with segregating and managing divestiture assets, and handling ultimate sale of divestiture assets.
Management and Operational Agreements: Our experience in this area has ranged from drafting spectrum leasing/management agreements for limited geographic areas to helping clients establish complex nationwide affiliate programs, including:
- Drafting initial Spectrum Manager and De Facto Transfer Lease Agreements which have become the predominant forms used by national wireless carriers;
- Preparing model commercial agreements to install and operate commercial wireless broadband systems on the Seattle ferry system and the Canadian railway system;
- Working with radio and TV broadcasters for sale of blocks of airtime;
- Assisting multiple clients (wireless and wireline) with interconnection, collocation and switch sharing agreements; and
- Working with clients on roaming, traffic exchange, wide-area system, reseller and MVNO arrangements.
Joint Ventures and Strategic Alliances: We have assisted clients in creating mutually beneficial relationships through implementation of joint ventures, strategic alliances and branding relationships, including:
- Assisting Sprint draft and negotiate strategic partner agreements for its national affiliate program;
- Assisting traffic content provider in establishing strategic partnership with Clear Channel Communications to exchange traffic content for radio advertising airtime;
- Negotiating network infrastructure sharing agreement to permit wireless clients to maximize coverage capabilities by sharing communications facilities; and
- Drafting and negotiating terms of strategic relationship with multinational consortium to finance, launch and operate satellite system with landing rights in Andean countries.
Disposition of Troubled Assets: We have assisted clients in connection with the purchase and sale of troubled assets, including in the course of insolvency and bankruptcy proceedings:
- Advising telecom companies on regulatory implications of insolvency and bankruptcy proceedings, and appointment of receivers/trustees; submission and prosecution of all requisite FCC filings;
- Serving as special FCC counsel to Designated Entity and subsequently to Liquidation Trustee in Chapter 11 bankruptcy proceeding, where FCC was creditor of estate by virtue of FCC installment payment financing;
- Negotiating agreements with FCC and DOJ regarding the disposition of spectrum assets, including by Debtor-in-Possession and Liquidation Trustee;
- Representing sellers and buyers in connection with bankruptcy court-supervised auction and bidding processes for disposition of assets subject to bankruptcy; and
- Assisting a buyer of telecom assets subject to settlement agreement with FCC and DOJ outside of the bankruptcy process.
Financing Transactions: We often work as contract counsel and/or regulatory counsel in connection with various debt and equity financing arrangements, including:
- Contract counsel to lenders, and regulatory counsel to telecom carriers for syndicated recourse and non-recourse debt financings;
- Regulatory counsel to companies seeking public debt and equity financing, and occasionally to underwriters in debt and equity offerings;
- Advisor on structured seller financing agreements for communications acquisitions; and
- Counsel in obtaining funding via the private equity markets.
Foreign Ownership Transactions: Wilkinson Barker attorneys regularly advise clients in structuring transactions to comply with the limits on foreign ownership. We have:
- Advised telecom companies, venture capital and private equity firms in structuring organizations and transactions that comply with limits on foreign ownership, Experience ranges from simple transactions to complex structures including the use of warrants, options, puts, and convertible instruments;
- Assisted telecom companies in seeking relief from foreign ownership limitations, including submission of required filings with the FCC and prosecution of such requests with the FCC’s International Bureau; and
- Helped telecom companies clear review of proposed foreign investment by Team Telecom, including responding to Team Telecom inquiries and coordinating with Team Telecom staff.
Outsourcing and Government Contracting: We have counseled clients in connection with the negotiation and execution of service agreements and equipment procurement contracts with a broad range of vendors and agencies. Our expertise includes outsourcing business processes, developing and responding to RFPs, evaluating suppliers, negotiating contracts, implementing best practices and ensuring contract compliance. Our work includes:
- Negotiation of telecommunications infrastructure concession contract and novations with various governmental agencies;
- Negotiation of vendor contract to develop nationwide certification testing program;
- Contract negotiation for outsourcing of billing and customer care functions; and
- Drafting/negotiation of site development outsourcing agreements for national carrier.
New Technology Transactions: We have developed expertise in various technology law matters, and have worked with clients on licensing, web site development, web hosting, web linking, Internet advertising and content agreements. Some of these representations have been conducted with the assistance of specialized IP counsel. Representative experience includes:
- Advising clients on laws governing Internet advertising and consumer privacy;
- Represented ISP in developing co-branded ISP service with television broadcaster;
- Worked on Development Agreement for national wireless carrier’s location-based services development program; and
- Developed and negotiated wireless Internet services agreements for access to DAS network at Washington D.C. airports.
Real Estate Transactions: We have assisted clients with various real estate issues including negotiating the terms of office leases, site leases, tower leases, subleases, collocation agreements and build-to-suit agreements including:
- Negotiated terms of two multi-million dollar build-to-suit agreements for customized telecommunications call centers;
- Represented national bank in developing master rooftop lease;
- Worked with real estate owners and FCC licensees (TV, radio, wireless) on tower leases, subleases and collocation agreements;
- Worked with national wireless carrier and wireless broadband provider to draft and negotiate terms of new master site lease agreements with national tower aggregators; and
- Negotiated terms of various office leases (including corporate headquarters for Fortune 100 company and office space at One Rockefeller Plaza).
"Designated Entity” Transactions: Wilkinson Barker attorneys have been involved in the formation, operation, and wind-up of several so-called “designated entities” (or “DEs”) receiving special treatment under FCC rules, and in transactions involving assets subject to these rules. We have:
- Represented small businesses, strategic partners and financial entities during all stages of the evolution of the FCC’s DE rules in connection with the structuring and management of DEs, and with preparation of organizational documents and commercial arrangements that pass regulatory muster;
- Experience negotiating terms of DE organizational and commercial arrangements with the FCC;
- Served as outside general counsel to DEs throughout start-up, construction and operational phases;
- Represented DEs and non-DEs in connection with the purchase and sale of assets subject to the DE rules, including with respect to the lease of DE spectrum;
- Served as expert witness in qui tam litigation involving certain DE structures previously approved by the FCC; and
- Represented DEs, their strategic partners and private equity investors in connection with the dissolution of DE structures.
General Corporate: We also represent clients on a wide variety of general corporate, employment law and litigation support matters, including:
- Formation and qualification of all forms of U.S. business entities;
- Winding-up companies as a result of liquidation or dissolution;
- Negotiating LLC, partnership and shareholders agreements;
- Preparing materials for shareholder and board of directors meetings;
- Work on Regulation D Offerings and SEC filings; and
- Locating, retaining, coordinating and supervising outside legal counsel for commercial matters, including secured transactions and real estate.
- Drafting/reviewing offer letters, employment and consulting agreements and stock option plans and agreements;
- Assisting in voluntary and involuntary employment termination matters including severance matters, WARN, ADEA, COBRA, and HIPPA requirements;
- Negotiating severance agreements and employment releases;
- Advise on non-competition/non-solicitation agreements and employee handbooks; and
- Counsel client in connection with EEOC claim in context of employment termination dispute.
- Drafting pre-litigation cease and desist and demand letters and responses to same;
- Preparing responses to civil litigation discovery requests;
- Working with other counsel on joint defense agreements;
- Drafting general commercial releases and complex settlement agreements; and
- Locating, retaining, coordinating and supervising outside litigation counsel in various states.
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