As an accomplished business lawyer with more than 35 years of experience, Mr. Bogen has substantial experience with the following:
Board of Directors Advice
Mr. Bogen often advises Boards of Directors, Trustees, or Managers on their responsibilities, fiduciary obligations, conflicts of interest, and governance issues. He uses his unique capability to “read the room” to deliver his advice in a non-confrontational, constructive, and politically sensitive manner and he is skilled at helping to form a consensus among Board members.
Business Formation and Governance
Mr. Bogen often plays a central role in helping to launch businesses. His mix of business savvy, knowledge of the law and business structures, practical approach, eye to important details, and calm demeanor, all gained from more than 30 years of effectively working with startups and early-stage businesses makes him an ideal fit for new companies. He begins these representations by working closely with his clients to determine their objectives and to identify the legal, compliance, financial, and general business challenges that his clients will face. With that in mind, he helps his clients structure their organizations in the most effective way to achieve the desired outcomes. In most startups, there are multiple stakeholders, including investors, founders, and senior-level management.
Mr. Bogen has extensive experience with helping these participants navigate control, liquidity, restrictions, and other critical aspects of their arrangements and as an excellent draftsman, he prepares comprehensive shareholder, operating, or other agreements that reflect the parties’ arrangements. He is keenly aware of limited budgets and timing considerations, and he guides his clients to make practical decisions focusing on what is truly important without getting sidetracked on red herring issues. Once established, he often fills the role of outside general counsel for these clients.
Commercial Real Estate Leases
Mr. Bogen regularly reviews, drafts, and negotiates commercial real estate leases, including office leases, shopping center leases, and stand-alone buildings and properties. He has represented both landlords and tenants in hundreds of leases, including triple net leases. He is familiar with escalation provisions, including porter’s wage, operating expense, and cost of living clauses. He has worked on many subleases and space licenses and has negotiated assignments of leases with landlords. He has prepared and reviewed estoppel certificates and subordination, non-disturbance, and attornment agreements. Mr. Bogen has negotiated exclusive and non-exclusive broker agreements.
Mr. Bogen works with many clients in highly regulated industries, where compliance with complex federal, state and local laws, rules, regulations and guidance is critical to avoid serious or even catastrophic governmental intervention or prosecution. In particular he has spent the majority of his career working with clients in the strictly regulated health care industry. He also works with clients in other regulated industries such as banking and telecommunications, among others. Mr. Bogen is well aware of the regulatory issues that may arise and the general constraints and compliance guidelines. If, the issues are very arcane or require extensive research, he has a strong network of attorneys who focus only on these issues that he can turn to for more deep analysis and opinions. He also has experience working directly, or in concert with other white collar criminal defense or regulatory attorneys, with government agencies and prosecutors when issues arise, including responding to investigations. In addition, he has overseen negotiation and implementation of corporate integrity plans.
Dispute Resolution and Litigation Oversight
While Mr. Bogen is not a litigator, he often works to avoid litigation by analyzing the merits of the parties’ respective positions and the costs (financially and otherwise) of litigating and then advocating for sensible compromises that will result in settling disputes. He has ample experience drafting and negotiating settlement agreements, including mutual or one-way releases, payment plans, and other components of settlements. Mr. Bogen is well aware that, unfortunately, at times litigation is necessary either as a strategy to induce a settlement or because the parties are too entrenched in their respective positions to reach a compromise. In those cases, he has overseen numerous complex litigations, working closely with the litigators to devise the best litigation strategies, to fact check the litigation documents, to ensure that viable legal arguments are not overlooked and are stated as persuasively as possible and that deadlines are not missed. He also understands the need for litigation budgeting.
Employment / Independent Contractor / Consulting Relations
Mr. Bogen has drafted, reviewed, and negotiated hundreds of employment, independent contractor, and consulting agreements and arrangements, including options to acquire equity, sophisticated incentive compensation arrangements, restrictive covenants, and severance arrangements. This has occurred in many contexts including in connection with mergers and acquisitions, startups, and straightforward transitions to new employers. He counsels Boards of Directors on Senior Management employment arrangements, including not-for-profit companies. Many employers and employees have utilized his judgment, negotiating skills, and experience with respect to resolving disputes between employers and employees, including preparation and negotiation of separation and termination agreements and severance payments, together with releases.
Because he has represented banks and other lending institutions in many instances and borrowers in other instances, Mr. Bogen understands well what issues are important to both sides of the lending transaction and what issues are likely not negotiable. He knows where the loopholes are hidden in boilerplate documents and what are the key points that make a loan transaction attractive or not to the parties. He is a careful draftsman and reader of loan documents so that he can ensure that important issues are not overlooked or improperly addressed, yet he will not “over lawyer” the documents on red herring issues that are either non-negotiable, are highly unlikely to become real issues, or that are of little consequence in the “grand scheme of things” even if they do arise. He also understands that relationships between lenders and borrowers are often of equal or even greater importance than the documentation itself. Among other things, Mr. Bogen’s experience includes secured and unsecured discretionary credit facilities, working capital lines, acquisition financing, bond transactions, debtor-in-possession “DIP” financing, and mortgages, including construction loans. He has considerable experience with UCC and mortgage issues and with related ancillary matters such as subordination and inter-creditor agreements and work-outs.
General Counsel Services
Given the wide range of his experience, his extensive network of other lawyers specializing in various matters, Mr. Bogen is very valuable to clients who engage him either formally or informally as their General Counsel who is their first stop when any legal related issues arise and because his representations require him to understand the business dealings of his clients, they often seek his judgment and input on business matters.
Joint Ventures, Strategic Alliances
Mr. Bogen is well aware of the considerations that are critical to forming and maintaining successful partnerships among businesses including proper alignment of interests and incentives, restrictive covenants, control issues, clear responsibilities, and exit strategies. In addition, he advises his clients on the appropriate structures, such as jointly owned limited liability companies, partnerships, limited partnerships, corporations, or contractual relationships, for joint ventures. As a result, he has guided numerous clients through the process of establishing and then continuing numerous strategic alliances and he often becomes the legal counsel for the joint venture itself.
Mergers and Acquisitions
Clients benefit most from Mr. Bogen’s extensive experience with mergers, acquisitions, consolidations, and reorganizations by engaging him at the earliest stage before the parties commit to a structure or deal points that then become entrenched in the deal. He then prepares and negotiates letters of intent, exclusivity (standstill), non-circumvention, and due diligence documents and agreements, before proceeding to negotiate the definitive documentation and closing the deals. Over his more than 30 years of practice, Mr. Bogen has closed over 500 acquisition transactions ranging in size from $50,000 to $2 billion. He has also led teams of attorneys in industry roll-ups where the client may have multiple transactions pending concurrently in multiple locations or for multiple targets. Acquirers and targets have included publicly-held, private, and not-for-profit companies, and companies in heavily regulated industries such as health care, education, and banking. He has navigated many acquisitions and dispositions through bankruptcies proceedings. He is familiar with the advantages and disadvantages for buyers and sellers when the consideration to be provided for an acquisition includes stock or other equity (including lock-up, registration, anti-dilution rights, and valuation issues), earn-outs, debt, or other assets. He also recognizes the importance and drawbacks of restrictive covenants in acquisition transactions.
Real Estate Purchase and Sale Transactions
Mr. Bogen represents his clients in stand-alone commercial real property acquisitions and dispositions and frequently, as a component of merger and acquisition transactions. His experience includes review and negotiation of real property purchase and sale agreements, reviewing and negotiating title insurance documents and mortgage financing arrangements, including subordination, non-disturbance and attornment agreements and mortgage consolidations.
Sophisticated, Novel and Template Contracts
Mr. Bogen is adept at helping his clients identify the specific objectives and critical issues for novel or complicated contractual relationships. He takes into account the overall importance of the arrangement to the client, the intended results and potential consequences to carefully craft and skillfully negotiate the contracts. In doing so, he seeks to simplify the contracts to put them in a form that will raise as few unnecessary objections as possible from the other parties. In some cases, he crafts unique contracts that are particular to a specific set of circumstances. In other cases, he creates templates that can be used over and over by a client and that draw out the few areas of the contractual relationship that the client will be willing to negotiate. Mr. Bogen excels at closely reading sophisticated contracts drafted by others and breaking them down to the important aspects for his client’s consideration. He then utilizes his many years of experience and keen judgment to provide his clients with solid advice regarding which issues are likely negotiable and the best strategies for doing so.