another different analysis.

Le high-tech résiste à la crise du pouvoir d'achat

M.-C. R.
04/07/2008 | Mise à jour : 22:35 | Commentaires 10

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Les ventes d'ordinateurs, télés à écran plat, lecteurs DVD, GPS, téléphones mobiles restent soutenues.

En dépit de la récession et de la flambée des prix du pétrole dans de nombreux pays, les consommateurs dépensent toujours plus en produits électroniques. Des ordinateurs, en passant par les téléviseurs à écran plat, les téléphones mobiles, les appareils photo numériques, ou les MP3, les consommateurs s'équipent partout dans le monde en produits high-tech.

Après deux ans d'une croissance à deux chiffres (2006 et 2007), les dépenses mondiales en biens technologiques devraient encore croître de 9,4 % en 2008 pour atteindre 678 milliards de dollars, selon l'institut d'études en marketing Gfk, en collaboration avec la CEA (Consumer Electronics Association).

« Les consommateurs sont séduits non seulement par les innovations technologiques, mais également par l'érosion des prix, ce qui est un phénomène courant sur ce marché, explique l'institut Gfk. Aujourd'hui, le consommateur est mieux informé pour faire face au choix pléthorique des biens de consommation technologiques. »

Le mobile, toujours en tête

Pour autant, tous les pays ne sont pas logés à la même enseigne. Ainsi, la croissance en 2008 proviendra essentiellement, selon Gfk, de quatre pays : Brésil, Russie, Inde et Chine. En revanche, les marchés matures tels que l'Amérique du Nord et l'Europe occidentale accuseront un repli, tout en continuant à assister à l'avènement de produits et technologies à la pointe du progrès.

Parmi les différents produits, le téléphone mobile reste le bien électronique le plus populaire. Il est suivi par la télévision à écran plat qui, avec désormais un prix moyen d'environ 1 000 dollars, poursuit son essor dans le monde. Les ordinateurs arrivent en troisième position : le marché des PC représentera, selon Gfk, 16,8 % des dépenses totales en 2008.

Une chose est sûre : les Jeux olympiques de Pékin devraient avoir, comme l'ont toutes les grandes manifestations sportives, un effet déclencheur pour les achats de high-tech. Une bonne nouvelle pour les industriels !

this analysis is a little bit different, but provide the same result. Even if it is said that the consumer electronic martket is tsill going to grow in different area such as Bresil, China etc. It says that the main electronic devices that will be subject to a market increase will be limited to Cellphone, HDTV, and high technology goods...

It means that for a company like ours...it is going to be a bit difficult...

bad news...

little estimate provided by GFK... it seems like that New technology market is starting to slow down...
which means that the economical situation is getting bad and that we will need to integrate in our way of reflexion that we will need to get out from all our commitment easily. Therefore systematically integrate a easy termination provision.

It is weird to say that we are working in a difficult environment.

But that's the way it is. I have my document of reference to achieve... as it is the third one, it might be the last one...

IPR Provision

We are currently trying to deal with a major Telco manufacturer, a worldwide first class organization that intends to develop and commercialize an innovative product for their market. They came to see us and started to negotiate since awhile.

Now that we almost agree on the main T&C, it is time enough to draft the term sheet or the MoU. Assisting the negotiation is of course one of my essential prerogatives as legal counsel, due to the fact that I will have the hard mission to draft as much accurately that I can the terms and conditions agreed by the parties, I really need to be cautious. When we talk about a two million dollars deal, you really need to take care about the way you express your needs for your organization and how important will be the responsibilities for your company in case of failure.

Assuming that during the negotiation, everybody’s around the table are quite disposed to be orally ok with everything, the way you will draft the agreement is the way it will be interpreted by the courts in case of litigation. Therefore I would say that the main quality for a legal counsel in charge of these kind of negotiation is a particular sense of communication, humour (yes…sometimes it really helps to stress down a situation) and rigour in writing.

One example, is the way you draft the IP provision; it is for sure one of the most important provision in an OEM agreement or whatever agreement that involves an entanglement of IP responsibilities between two organizations.

Generally, here is below the way I try to impose a neutral wording, not too much binding for us but enough reassuring for the partner… in fact you undertake in good faith that there is no pending claim (but you know that some will raise or occur during the relationship), you say that you own your IP (which is right) but never guarantee that you will have to bear the legal cost or whatsoever in case of litigation….the rest of the provision is only a “decorum”.

1 - Intellectual Property rights ; Confidentiality

1.1 «X Company» represents and warrants that it owns or has sufficient license rights to all patents, trademarks, copyrights, mask works, trade secrets, and all other intellectual and industrial property rights necessary to perform all activities contemplated by the parties under this Agreement, including without limitation all relevant manufacturing, use, and sale rights.

1.2 Both parties acknowledge that many aspects of the design, prototype production and operation of the Products, in any form, are proprietary and confidential information and trade secrets of «X Company», its licensors, or «Y Company», as the case maybe, (collectively “Confidential Information”). Both parties also acknowledge that the other party may provide to the other party certain specifications, schematics and other technical data that constitute Confidential Information to allow for the service, repair or support of the Products. Neither party shall directly or indirectly discuss, disclose, copy, modify, use (except only as expressly permitted by «X Company», its licensors, or «Y Company», as applicable) or otherwise transfer the Confidential Information to any other person or entity at any time without the prior written consent of the other party, except (i) at the written direction of the party which is the owner of such information; (ii) to the extent necessary to comply with law, the valid order of a court of competent jurisdiction or the valid order or requirement of a governmental agency or any successor agency thereto, in which event the disclosing party shall notify the owner of the information in advance, prior to making any disclosure, and shall seek confidential treatment of such information in advance, prior to making any disclosure, and shall seek confidential treatment of such information; (ii) as part of its normal reporting or review procedure to its parent company, its auditors and its attorneys, provided such parent company, auditors and attorneys agree to be bound by the provisions of this paragraph; or (iv) to the extent necessary to permit the performance of obligations under this Agreement.

1.3 Additionally, neither party may refer to the fact of the relationship between them in publicity material or publicize the terms of this Agreement without the prior written consent of the other, which shall not be unreasonably withheld or delayed, regarding both the contents and timing of any such announcement.

1.4 Any technology developed by «X Company» under this Agreement shall be the property of «X Company». Any technology developed by «Y Company» under this Agreement shall be the property of «Y Company». Any technology jointly developed by «X Company» and «Y Company» under this Agreement shall be jointly owned by «X Company» and «Y Company» with each party holding an undivided one-half interest in such jointly developed technology. Neither party may use such jointly developed technology outside of the Product without permission of the other party which permission shall not be unreasonably withheld.

what is a due diligence

For those who does not know what is a due diligence, here is a little overview of this matter.
You will see that behind this double ducth, it is something quite easy to understand...

When a specific operation that might have important financial consequences is planned, you often need to get in touch with your lawyers in order to organize and formalize the negotiations.
Therefore you will start what we call in our jargon a "due diligence".

see below the way it happens and most of all, the main step of such porcess:

I) INTRCOUDCTION: TOPICS TO BE COVERED

What is a due diligence?
Why and when do you conduct a due diligence?
How to conduct a due diligence? (what is the process).
The due diligence report.
Conclusion

II) What is a due diligence

It is essentially an investigation to manage risks.
Broadly defined the term "Due diligence" is universally applied to investigations of information provided by a potential seller to a potential buyer.

III) Why and when do you conduct a due diligence?

Why? Transactions involve substantial financial obligations.
A characteristic of our business environment is to always present the best picture.
Essential to determine the undisclosed risks which are attached to the transaction as this may result in the transaction being aborted or affect the purchase price or terms of the agreement.


IV) When?

Merger and acquisitions
Joint ventures
Privatization of sate organizations
Commercial undertakings for example, stock exchange listings, financing projects and performance based commercial agreements.


V) How / What is the due diligence process?

Appointment of the team
Skills/ expertize
Clear and define mandate
Costs
Confidentiality agreements

VI) How / What is the due diligence process (cntd)?

Data room and access to the room
Due diligence questionnaire and checklist
one on one interviews with management from the target company
Investigative mode of inquiry which will includes searches of public registers.

VII) The due diligence report

This report should contain:
An outline of the scope of the review.
An analysis of the documentation and information revealed


VIII) The due diligence report (CNTD)

A list of all the information disclosed by investigations (public record searches).
Limitations and disclaimers of liability
An executive summary which outlines the lega issues identified and advises on the legal implications of proceeding with the transaction (risks and liabilities).

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IX) Conclusion

Now fix it up
Fast food and late nights
prevents unsound business transactions

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During my young career, I have already executed four due diligences.

I have been involved with our lawyers into a pretty big capital increase of 32 M € last year...I don't know if I have already specified that I was currently working in a listed company, therefore our shares are in scripted in a stock market of course.

In addition, I have already started two acquisitions procedure on two international and well known company in order to evaluate the relevance of these potential acquisition.

And my last due diligence was in relation to a financial operation with convertible bonds issuance.
That was very interesting. Due diligence are gripping aspect of business law...you have to evaluate synergies between two activities and entities, you need to understand the operational consequences in addition to the financial potential benefit.

Frankly speaking, I think that data room' process and all the paperwork analysis has to be performed by young lawyers with minimum legal competences.
What you only expect from them is to synthesis the business through the documentation analyze. Once that this job has been done, you have all the relevant tool to make up your mind and to take time to decide on the opportunity...

That's the business...

Legal Affairs

I have decided today to create my first blogg in order to develop and discuss about the legal affairs.

I am currently working in a middle firm size and I am specialized in business law and litigation.

Currently, my company is facing some financial difficulties due to the economical context…it goes beyond my scope of activity.

There are so many parameters that are really difficult to take into custody; internet web 2.0 development; intensification of communication infrastructure, credit availability etc.

I feel stressed but humanely, I can’t do anything except support my organization as best as I can…

As everybody’s know, the consumer electronic industry is a very competitive sector in constant growth. Everybody is talking about the “Media convergence”.

Everybody has heard about Sony, Apple, Samsung, LG etc. These well known companies have one common point with my organization: they have international market ambition and keep running after innovation and new technology. Therefore, I have this chance (I don’t know if I can talk about chance when I think about some stressing situation) to perform my legal service in this innovative world.

We will see the next episode.