What impact will the COVID-19 crisis have on the private equity sector? While there is no precise or simple answer, it is possible to draw certain broad conclusions as to how the PE industry is likely to respond to the new global economic landscape.
The immediate effect of the current crisis will be an industry-wide withdrawal from what has been a decade-long period of exceptional growth and dominant performance spearheaded by ever increasing transaction volumes, valuations and accessibility of funds. As was the case in the wake of the global financial crisis of 2007/2008, GPs’ first instincts will be to pare back, assess risk and stabilise their portfolios. Hold periods will increase as firms retain struggling assets in the light of heavily subdued exit markets. Consequently, there seems little prospect of a repeat of the panic selling on the secondaries market that emerged in the wake of the 2007/2008 global financial crisis. Similarly, sellers generally will be reluctant to divest assets that are suffering a marked fall in value. Lenders will become more risk adverse and the relatively easily available credit market will shrink. According to a recent report by Bain & Company, in 2019 in excess of 75% of PE transactions were leveraged at over six times EBITDA (compared to roughly 25% following the 2007/2008 global financial crisis). As expectations of high multiples significantly diminish, investors will be required to deploy more equity.
So dealmaking and lending will contract in near term, but what about the mid and longer term climate? History suggests that the sector will not stay stagnant for long. PE funds are sitting on substantial piles of dry powder and, as valuations retreat, opportunities will arise for those agile enough to take advantage. Credit markets may become increasingly squeezed, but they will not completely dry up as in they did in the aftermath of the global financial crisis of 2007/2008, when the number of leveraged loans issued fell by over 75%. Distressed debt and special situation funds, as well as private lenders that are sitting on record levels of capital, will play ever more significant roles in financing deals and availing themselves of opportunities to acquire at depressed values. Moreover, outside competition for those target opportunities will likely diminish, as public markets retreat and corporates hunker down on cash reserves.
In the new normal that emerges from the current crisis, sector expertise will become even more essential. GPs’ approach to modelling and strategising will need to factor in disruption that may not always be foreseeable, as portfolio companies look to reset budgets and management incentives and restructure supply chain efficiencies. Manifestly, sectors within the immediate frontline response, such as healthcare and retail, are likely to fare better than others, such as hospitality and leisure, which are already suffering an unimaginable impact.
In response to the COVID-19 crisis, the UK government has adopted a series of significant and unprecedented measures to support individuals and businesses. The remainder of this alert highlights certain key considerations relating to those measures and their relevance to the private equity sector and the broader business community in which it operates.
The scheme relating to interruption loans in the wake of COVID-19, the Coronavirus Business Interruption Loans Scheme (“CBILS”), went live on 23 March 2020 and will initially run for 6 months.
The aim of the scheme is to alleviate any issues SMEs have accessing credit during the COVID-19 outbreak via the partial government guarantee of any loans issued under CBILS up to a value of £5m per borrower.
CBILS is intended to cover a wide range of funding, including term facilities, overdrafts, invoice finance facilities and asset finance facilities.
The scheme is provided by the British Business Bank via participating lenders, a list of which can be found here. It is worth noting however, that participating lenders may not individually cover all the forms of lending noted below.
The key features of the CBILS are:
- Maximum facility provided of up to £5m on repayment terms of up to 6 years.
- 80% Government-backed guarantee against the outstanding facility balance subject to an overall cap per lender.
- No guarantee fee for SMEs: only lenders will pay a fee for accessing the scheme.
First 12 months of interest payments and fees (lender-levied charges) paid by the Government: Certain lenders have showed some willingness in suspending charging arrangement fees or applying early repayment charges so benefitting the smaller businesses though a lack of upfront costs or lower initial repayments. Please note however, that businesses in the fishery, aquaculture and agriculture sectors may struggle to qualify for the full interest and fee payment cover.
- Increased finance terms: Up to 6 years for term loans and asset finance facilities and up to 3 years for overdrafts and invoice finance facilities.
- Availability of unsecured lending: Facilities of £250,000 and under may qualify for unsecured lending and no personal guarantees will be taken. Facilities of £250,000 and over, may require a personal guarantee to be provided, though it remains at the discretion of each individual lender. In any case, recovery under such a guarantee would be capped at 20% of the outstanding balance of the CBILS facility after the proceeds of business assets have been applied and the borrowers cannot use their Principal Private Residence as security for either the personal guarantee or the CBILS-backed facility. Whether the facility is for under or over £250,000, the business does not require to show insufficient security to access the scheme.
It is worth noting the following:
- The CBILS guarantee is to the lender and not the business.
- As with any other commercial transaction, the borrower is always 100% liable for repayment of the facility supported by CBILS.
- Press reports to date have shown that the interest rates available can be high in comparison to typical loans.
To be eligible for the CBILS, subject to additional elements that may be announced, the business must:
- be UK based, with turnover of no more than £45m per annum;
- generate more than 50% of its turnover from trading activity;
- show that the CBILS-backed facility will be used to support primarily trading in the UK;
- operate within an eligible industrial sector. A small number of industrial sectors are not eligible for support including banks, building societies, insurers and reinsurers (though not insurance brokers), the public sector bodies, further-education establishments, if they are grant-funded and state-funded primary and secondary schools;
- have a sound borrowing proposal which, were it not for the current pandemic, would be considered viable by the lender, and for which the lender believes the provision of finance will enable the business to trade out of any short-to-medium term difficulty; and
- self-certify that it has been adversely impacted by COVID-19.
Final decisions on eligibility have been entirely delegated to the accredited lenders and will be decided on a case by case basis. Borrowers should check which accredited lenders provide the type of finance they are looking for and reach out to that particular accredited lender to discuss their eligibility. The British Business Bank has published a quick guide to help borrowers understand if they could potentially be eligible prior to contacting the accredited lender. The quick guide can be found here.
Funding is accessed by application to participating lending institutions. The British Business Bank provides some examples of the typical supporting documents which may be requested by the lenders when submitting an application. These include management accounts, cashflow forecasts, business plans, historic accounts and details of assets, though businesses should approach any participating lender and discuss their individual borrowing needs as these will vary from lender to lender. Also, Better Business Finance has published a quick lending application checklist of the potential documents and question the lenders may request or have. This guide can be found here.
An application should take no longer than a standard application and for smaller facilities the process may be entirely automated, not requiring the same level of due diligence.
Please note that there is no restriction on approaching more than one accredited lender in the case of an unsuccessful application and given the constant changes made to the scheme, if you have previously applied and been rejected, it could be worth re-contacting the lender.
Our recommendation is to discuss the loan with an accredited lender of your choosing, but also think of other options to support companies through these unprecedented times such as further equity investment.
Another scheme relating to interruption loans in the wake of COVID-19, the Coronavirus Large Business Interruption Loans Scheme (“CLBILS”) will be launched later this month aimed at supporting a wide range of businesses with larger annual turnovers between £45m to £500m, impacted by COVID-19.
It is understood that there will be 80% government-backed guarantees in place to enable commercial lenders to make loans to the eligible businesses of up to £25m where securing regular financing was not successful.
CLBILS is intended to cover a wide range of funding, including short term loan facilities, overdrafts, invoice finance facilities, and asset finance facilities through commercial lenders (likely to be a range of accredited lenders as with CBILS above) but more details are expected to follow in due course.
To be eligible for the CLBILS, subject to additional elements that may be announced later this month, the business must:
- be UK based, with turnover of between £45m to £500m per annum;
- be unable to secure regular commercial financing;
- operate within an eligible business sector - a small number of business sectors are not eligible for support including banks, building societies, insurers and reinsurers (though not insurance brokers), the public sector organisations including state-funded primary and secondary schools; and
- have a sound borrowing proposal which, were it not for the current pandemic, would be considered viable by the lender, and for which the lender believes the provision of finance will enable the business to trade out of any short-to-medium term difficulty.
Alternative Liquidity Solutions
In addition to exploring options to raising equity and obtaining further Government or senior lender debt, businesses are left with multiple additional options to solve their short/medium term liquidity issues that come as a result of COVID-19. These options include:
- addressing fixed costs within the business, including:
- negotiating rent relief between landlord and tenant;
- seeking professional advice on employee redundancies; and
- salary negotiations (including deferral of bonuses and cessation of annual pay increases);
- pausing non-essential capital expenditure and planned projects; and
- making use of government grants and VAT relief.
Long Term Vision
We should all keep in mind that as history dictates with any crisis (financial or previous epidemics), the good times will eventually follow. Whether it will be in three to six months or longer, we should be prepared for the eventual rebound. Therefore, not only all of the considerations outlined in this alert should be taken into account with long term vision in mind, but also it is essential to allocate resources to specifically explore growth opportunities for the recovery period and thereafter. Whilst dealing with immediate liquidity issues, depending on the sector of the business, it could be a good time to review the financial and commercial business models and re-align resources to allow for long term gains exploration.
Anti-dilution clauses are clauses aimed at protecting investors from unfairly losing ownership in a company upon the issuance of new shares in new financing rounds or in the exercise of convertible debt and can occur in two circumstances:
- share dilution: a reduction of a shareholder’s holding due to fundraising from new investors; and
- economic dilution: a decrease in the economic value of a shareholder’s holding as a result of new shareholders acquiring shares at a lower price than the one paid by the previous shareholders or by converting debt to equity at a price lower than that which the existing shareholders paid.
With the uncertainty brought by COVID-19, it may become increasingly necessary to issue new shares or restructure debt to ensure a company has a workable cash-flow to sustain itself. In these circumstances, it is imperative that due consideration is given to anti-dilution clauses. Companies must determine whether they have anti-dilution clauses in place and, if they do, understand the terms of those clauses.
Importantly, if the price of the shares for new shareholders and/or creditors converting their debt is lowered, despite attracting more interest, companies will be facing repercussions of breaching anti-dilution clauses which may entitle an affected shareholder to breach of contract remedies.
Often companies will include a pay-to-play provision in their agreements with shareholders, which provides that a shareholder must continue to pay (keep contributing to the financing) to continue to play (avoid diluting their shares), which not only provides a secure source of income for the company but incentivises the shareholder to continue contributions to avoid dilution of their shares. In such circumstances, there are differing benefits for participating and non participating shareholders, whereby only those who participate are entitled to preferred shares and rights.
Check Debt Documentation
In light of the ongoing COVID-19 crisis, we recognise the increased uncertainty in relation to financial instruments and ongoing financial arrangements that corporates may have with their financial services providers. Given these arrangements are purely contractual, an analysis can only be undertaken on a case by case basis.
Borrowers should be refamiliarising themselves with their financing documents, particularly the financial covenants provisions. Financial covenants are generally used as an early warning indicator that the financial health of a borrower is slowing or failing. Although the trend in recent years in the US and Europe is for 'covenant-lite' facilities, the impact of COVID-19 has led to such significant trading challenges with an almost overnight reduction in revenue meaning that financial covenants may well already have been breached.
In the context of reviewing financial covenants, a borrower should consider: whether the covenants are calculated and tested on historic performance or if there is also a forward looking element; how much head room has been built in to the covenants and whether any add-backs are available which could be used to limit the impact of decreased net income; and whether there are any cure rights available which obligors may be in a position to exercise. Borrowers should also be wary of material adverse change (“MAC”) clauses in finance documents, giving lenders further leverage to negotiate in a distressed situation - further discussed in our alert on force majeure, frustration and MAC clauses.
Early engagement with lenders is key and if lenders have not yet been in contact, it is never too early to be picking up the phone to the relationship manager and updating them on where things stand and what options are available. These options may include a financial covenant holiday, waiver of a financial covenant breach or amending the financial covenant provisions. In any amendments to the financing documents, it will be necessary to strike the right balance between agreeing amendments which will provide lenders with the comfort that they may require in these turbulent times as against tightening terms to such extent that borrowers find themselves unable to effectively manage their business.
There is good news. Most lenders will be willing to entertain discussions to deal with the emergency and unforeseen disruption. Enforcing is a pain for lenders at the best of times, and more so in a disrupted market (if we learnt anything in the last financial crisis), and where there are large numbers of potential defaults lenders will be grateful for borrowers showing initiative and realistic survival plans. The drops in interests rates will also help with debt pegged to official rates.
In the UK, certain SME borrowers may also consider asking their lender about availability of the Government’s new guaranteed loan schemes, such as the CBILS (discussed above) and the newly announced Coronavirus Large Business Interruption Loan Scheme, providing loans of up to £25m to companies with a turnover of £45m to £500m. Be wary that despite the UK Government guarantee, borrowers are still liable for the full amount borrowed and will still need to present a credible borrowing proposal.
Plans and proposals need to be realistic, or at least have reasonable assumptions about how the situation will play out. The shock is a minefield for company directors, who need to consider their duties carefully and avoid potential personal liability in the event that trading continues in an irreparably insolvent position (for more details please see below).
Executing Documents Remotely
The practice of executing documents remotely is not new and has been successfully adopted for quite some time before the COVID-19 crisis and the requirement to stay at home came into play. Particularly, the so called "Mercury" rules established a set of necessary procedural formalities which need to be followed for the practice of virtual signings and closings. These allow for an easy remote execution of agreements as well as deeds which is particularly important as due care and diligence is needed when executing a deed.
One of the difficulties which arise from signing remotely is that one would struggle to countersign the documents without having all parties physically present in a meeting room for execution. As above, for quite some time now, the commercial reality is that to save time and resources, parties could add a "counterparts" clause into documents allowing all parties to sign remotely in separate counterparts. However, if the parties proceed to sign in counterparts even where such a clause is not present in a document, the law is such that it would not of itself invalidate the agreement. While this is the position with regard to each party signing its own counterpart of the original document, it is important to note that where parties start countersigning copies of other parties' original signatures, in the absence of additional protective measures in place, that can entitle a party to claim the agreement is not binding given there is no single original copy signed by all parties. To avoid this, a party countersigning a copy of the original counterpart signature of another party, should seek to establish that it is a true copy, through having sight of either the original or a certified copy.
In terms of witnessing signatures, there are currently no changes to the well-established position that a witness must be physically present to attest a signature. It also should be borne in mind that although there are no statutory requirements that the witness should be independent or disinterested and in theory there is nothing preventing a family member or other related person from attesting a signature (provided they are not a party to the document where such document is signed as a deed), it has still been a matter of best practice to have an independent witness. There is much debate whether such practice can be relaxed given the circumstances and it will be down to individual parties to make a call as to whether to relax it or not but our recommendation would be to seek independent and disinterested witnesses, particularly for witnessing deeds, as far as it is practicable to do so.
On 28 March 2020, the Government announced it will make changes to UK insolvency legislation to enable companies undergoing a rescue or restructuring process to continue trading, giving them a breathing space that could help them avoid a damaging formal insolvency process, like liquidation, as a result of the COVID-19 pandemic. This will also include provisions to enable companies to buy supplies (such as energy, raw materials or broadband) whilst attempting a rescue and "temporarily" suspending the wrongful trading provisions in UK insolvency legislation retrospectively as from 1 March 2020 for three months, so that directors, acting reasonably and in accordance with their fiduciary and other duties, can keep their businesses afloat without the threat of personal liability.
The thinking behind this announcement is clear: the Government wants viable businesses to emerge from the current crisis intact by giving them time and space to "weather the storm" whilst ensuring creditors "get the best return possible". The Government made clear, however, that "all other checks and balances to ensure directors fulfil their duties properly will remain in force".
It is crucial therefore that directors appreciate that this latest Government announcement is not a licence to behave unreasonably or irresponsibly over the next few months; decisions still must be made, on a reasonable basis, to ensure so far as possible, that the company's stakeholders, most notably the creditors, receive the best return possible once the COVID-19 pandemic is over and we begin to emerge out of the crisis.
These changes proposed to UK insolvency laws have not yet passed onto the statute books and may not for some time: details therefore are awaited.
The two principal policy measures being proposed are in relation to (1) a "suspension" of wrongful trading (but not in respect of such matters as antecedent transactions, fraudulent trading, transactions defrauding creditors and/or misfeasance where directors must remain extremely careful at the current time and seek appropriate professional advice and guidance); and (2) a temporary "moratorium" on insolvency procedures for companies undergoing a restructuring process, during which time they cannot be put into a formal insolvency process by creditors and to make it harder to wind up companies because they are experiencing severe financial challenges caused by the pandemic. In effect, this latter proposal is a revival of previously proposed insolvency law reforms aimed at giving companies a breathing space to reorganise their business and affairs whilst being monitored by a licensed insolvency practitioner - in effect, a completely new rescue regime.
The important point here for directors to note is that these measures do not modify the existing regime for directors' duties. So, when taking on new indebtedness, for example, under the terms of the various funding packages being made available by the Government, directors ought still to consider very carefully if such additional borrowing will benefit the company's stakeholders; if it is later shown that decisions in this respect were made in bad faith, irresponsibly or recklessly, the directors will be in breach of their duties and likely held to account by a subsequently appointed insolvency office-holder should the business fail. Directors must therefore remain as cognisant of the existing regime on directors' duties and responsibilities as before the announcements made by the Government on 28 March 2020. In our view, it would be a mistake for directors to relax too much thinking they have carte blanche to rack up additional indebtedness, stretch creditors and defer other obligations absent a coherent and plausible strategy for normalising the business once the pandemic ends. This especially applies to those companies experiencing financial challenges before the start of the pandemic.
So, practically, what does this mean for directors in the position of having to make decisions about carrying on trading during the crisis? Here are some tips:
- Directors must continue to take appropriate professional advice.
- Decisions about trading on must be debated robustly in the boardroom, on a regular basis, and minuted for future reference.
- Because there is a heightened risk of failure leaving stakeholders worse off at the end of the pandemic, even greater care and attention needs to be given to business planning - what is the plan for emerging from the crisis - stress test it - is it viable? Or is it "pie in the sky". If the latter, this cannot be any justification for trading on to the detriment of stakeholders. Directors need to take an honest and frank look at the situation and options available.
- Critically, the rationale for taking on additional indebtedness needs due and proper consideration - is this likely to merely postpone the inevitable (at the expense of creditors) or support the business so it can return to normalised trading in the best interests of stakeholders over the next few months? What is the supporting rationale?
- Ensure there is a sensible strategy in place for communicating with stakeholders and minimising capital expenditure and discretionary costs; engaging with stakeholders is critical.
- Ensure that decisions to carry on trading are regularly assessed by the board of directors, adjusted if necessary, based on up to date financial information.
- Contingency planning is essential - directors need to envisage, on a sensible and rational basis, how best to exit from the pandemic when the time comes in a way which is demonstrably better than simply going into formal insolvency now or, worse still, incurring significant indebtedness and other liabilities with no obvious exit strategy or means of showing why stakeholders will benefit.
As a result of the social distancing restrictions placed on UK businesses, the Government has established the Coronavirus Job Retention Scheme ("CJRS") which is aimed at supporting public services, people and businesses in the period of disruption caused by COVID-19.
Under the CJRS, all UK employers - regardless of size - are eligible to seek support from HMRC in continuing to pay part of their employees' wages for employees that would have otherwise been dismissed due to the crisis. As a result of new legislation in force, these employees are referred to as 'furloughed workers' or workers that remain on the payroll but are not working at all. Notably, zero-hour contract employees or casual workers are not yet considered to be covered by the CJRS unless they work on the PAYE system and those working normal or reduced hours (agreed short time working) will not be covered by the CJRS.
HMRC will reimburse up to 80% of wages for all employment costs, not being more than £2,500 a month; there is yet to be guidance on the exact definition of wages i.e. whether or not pension and National Insurance contributions are included. Importantly, employers are required to, in the first instance, pay 80% of the employees' wages, receiving their reimbursement from HMRC thereafter, the system for which is still urgently in progress. The employer is, however, not required to make up the additional 20% pay; our suggestion in such circumstances is that the employer reaches and records an agreement with the furloughed employees to waive all or part of the additional amount.
The scheme can only be accessed where the employer:
- designates affected employees as 'furloughed workers' and notifies the employees of the change; and
- submits information to HMRC about the employees that have been furloughed and their earnings through a new online portal (further detail to be provided in due course by HMRC).
Importantly, the reclassification of employees to furlough workers is subject to existing employment law and as such, is subject to negotiation and the specific terms of the employee's employment contract. Typically, employment contracts do not contain an employer's right to change an employee's status or to temporarily lay off employees for whom there is no work. In such circumstances, employees will need to agree the change or the change must be introduced on contractual notice.
The issue, then, is that by unilaterally imposing the change, the employer risks employees resigning to claim for wrongful dismissal and (if they have two years' qualifying service for the employer) unfair dismissal or claim damages or unlawful deduction from wages for the balance of contractual salary. Our belief, though, is that in all likelihood, employees will accept the change to furloughed workers no doubt because the alternative is likely to be redundancy.
It is unclear at this stage whether or not furloughed employees cease to qualify for the grant if the employer serves notice of dismissal. This is likely to be regulated or, in theory, the employer can designate a furloughed employee, claim the grant, serve notice and use the grant to pay for the dismissal.
There remains information and guidance outstanding, however, the CJRS is likely to be regulated in order to prevent exploitation by employers claiming workers are furloughed when in reality they remain at work or continue to work from home.
While we adjust to a new normal, there remain questions as to how the CJRS will work. As the situation develops, the Government will provide further information which we will as soon as practicable relay back to you.
Share schemes are a useful tool in incentivising employees and provide employees with a tangible way to feel as if they are receiving returns on the efforts they put in the course of their employment. However, with the ongoing COVID-19 crisis, questions arise as to how such share schemes will work in practice following the crisis.
Many employers may find that outstanding share options will now be underwater (meaning that the exercise price is higher than the current fair market value of the underlying equity). In certain circumstances, employers may wish to consider whether the exercise price of these share options can be decreased so that the awards can continue to serve as an appropriate tool to retain and motivate employees.
In those circumstances where a share scheme will need to be adjusted for the current market, the starting point will be to check the plan rules - or the option agreement if there is a stand-alone option to determine:
- whether there are any restrictions on the ability to amend the plan rules in general (including investor consents), or the terms of exercising options; and
- whether the proposed amendment is already provided for in the plan rules.
Some plans may have provisions that are broad enough to cover the circumstances brought about by COVID-19, however, in situations where the virus does not fall under events in contemplation at the time the plan was established or the option agreement entered into then the plan will need to be amended or a specific agreement to amend the terms of a particular option will be necessary. This course of action should be considered if the:
- need for the proposed amendment might arise again in the future; and
- the company wants the amendment to apply to all option holders.
However, in order to make the necessary amendments to the plan or an option agreement, the consent of the option holder will be required and some amendments will always require shareholder approval.
For UK employees participating in company share option plans ("CSOPs") and save-as-your-earn option schemes ("SAYE"), as these are tax-advantaged share option schemes, any amendments will need to comply with certain legislative requirements to benefit from statutory tax advantages; the certification that such amendments comply with legislative requirements will be the burden of the company.
If it is proposed that a CSOP or SAYE scheme should be amended, the company needs to consider whether:
- the proposed amendment would involve amending a key feature of the scheme (any provision necessary to meet the requirements of Schedule 3 or Schedule 4 of the Income Tax (Earnings and Pensions) Act 2003) and whether the amendment still complies with such legislation;
- there are restrictions on making the proposed amendment;
- the amendment needs to be reported to HMRC; and
- amending the option amounts to the creation of a new right.
For employees who are subject to U.S. taxes, any adjustment would need to comply with U.S. tax law, which can be extremely complex. For example, one requirement for any adjustment is that the exercise price of the adjusted share option cannot be lower than the fair market value of the underlying equity on the date of the modification. Before taking any action, employers will also need to consider whether any adjustments will require shareholder approval, as well as any securities law or accounting implications.
Though little has been reported in terms of the effect of COVID-19 on share schemes, it appears likely that eligible employees will increasingly be less interested in share schemes due to the fact that the value of the company will be more uncertain than prior to the crisis. Accordingly, companies are likely to have to re-calibrate their share schemes and the terms therein, making them more attractive to employees. For example, growth schemes are used to provide employees with the opportunity to receive returns when the company’s value surpasses a certain ‘hurdle’; it may be the case in the current circumstances that lowering the hurdle will make participation in a growth share scheme more appealing to an employee.
We anticipate that as the crisis develops, more literature and guidance will be published in this respect.
Given the crisis and likely reduced staffing at HMRC, the turnaround time for EIS advance assurance may be longer than usual. HMRC are reviewing these applications in strict date order and endeavour to respond within 30 working days. Whilst the receipt of advance assurance is not essential for investments to qualify for EIS, it can often be a condition to the investment for some EIS investors. Companies seeking to attract investment may be better, for the time being, to ensure that the "books" are not EIS heavy.
Companies that have received or are due to receive investments that are anticipated to attract SEIS tax relief should consider whether any emergency support received by them will reduce the amount of SEIS investment available. In many cases emergency support may fall within permitted 'de minimis' grant limits but the position should be monitored.
The views expressed herein are solely the views of the authors and do not represent the views of Brown Rudnick LLP, those parties represented by the authors, or those parties represented by Brown Rudnick LLP. Specific legal advice depends on the facts of each situation and may vary from situation to situation. Information contained in this article is not intended to constitute legal advice by the authors or the lawyers at Brown Rudnick LLP, and it does not establish a lawyer-client relationship.