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Archive for October, 2009

Here is an interesting piece on mergerlaw from IT Business Edge.

“More frequently than not these days, when two companies operating in the same market space agree to merge or to engage in a strategic partnership, the U.S. Department of Justice or the Federal Trade Commission, or even both agencies, are going to want a closer look. Take Oracle’s acquisition of Sun Microsystems, and the Microsoft-Yahoo agreement in the search arena, for instance. The agencies want to make sure the merger, acquisition or partnership is not going to have an anti-competitive effect on the market such that consumers will be adversely affected.

The number of these inquiries has risen, and will continue to rise in the next few years, I’d imagine, because the Obama Administration has pledged to get serious about antitrust violations. That pledge has garnered mixed reviews, especially in the tech industry, as you can see in this post by our Rob Enderle. I don’t have Rob’s years of experience watching these things unfold, but I don’t know that I would go to such extremes. Yes, the new administration appears to be taking a more hands-on approach in enforcing the law, but at least the agencies responsible are also evaluating whether the guidelines they use to do so are still up to par.

Last week, Compliance Week’s Melissa Klein Aguilar reported that the DoJ and the FTC are considering whether the guidance they use in evaluating the anti-competitive effects of proposed horizontal mergers and acquisitions need updating. To that end, they are asking the public to respond to a 20-question survey on the matter.”

Read the full article here.

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Here is a good piece from WSJ Online.

It’s well known as a major investor in wind- and solar-energy projects. But General Electric Co. also hopes its growing role as a venture capitalist will give it an edge in a broader spectrum of emerging green technologies.

Since its first investment, in lithium-ion battery maker A123Systems Inc. in January 2006, the venture-capital group at GE Energy Financial Services has put $160 million into a portfolio of 20 companies focused on renewable energy, power-grid and energy-efficiency improvements, and, to a lesser extent, advanced oil and gas technologies.

GE sees these later-stage, clean-energy start-ups as a way to get a sneak peek at emerging technologies. Through its venture arm, it also gets a piece of the ones it believes will be ahead of the pack in the global shift to a reduced-carbon economy.

Kevin Skillern, the VC group’s managing director, says it’s too early “to tell if we’ve turned one dollar into two or three dollars.” But at GE, there’s another key metric: technology. Mr. Skillern says GE is also interested in how the portfolio companies can help its businesses.

“This is a vehicle that provides our larger company with a window into what could be a $15 billion to $20 billion industry in emerging energy technologies,” he says.

Mr. Skillern, who grew up in Houston and worked for more than a decade in the oil industry, got his M.B.A. at Stanford University in Palo Alto, Calif. He went back to the oil patch after he graduated, at a time when many of his classmates were pursuing Internet start-ups. But the seed of venture investing had been planted, and GE Energy Financial Services’ venture capital was the perfect new patch to let it grow.

We met with Mr. Skillern at GE Energy Financial Services’ offices in Stamford, Conn., to discuss how the large conglomerate is influencing the clean- technology industry through its venture investing. Excerpts from that conversation follow.”

Read the full article here.

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Here is a good interview from All Things Digital.

“Dell’s acquisition of Perot Systems, the largest in the company’s history, is the first of many such deals, not a simple one-off. In an interview with Bloomberg, company CEO Michael Dell said the PC maker is eyeing more acquisitions as it looks to bolster sales to corporate clients.

“You will see us be reasonably active,” he said. “We have a talented team of people that includes people who have been at Dell a long time and understand the Dell culture in the transactions that we’ve done and know why those have succeeded or not. We are rapidly developing that, and we’ve added some talent to help us do that.”

Read the full article here.

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Here is some good news from TechCrunch.

“Last quarter, based on funding and M&A data we collect in CrunchBase, we signaled that we were cautiously optimistic about the rebound of the tech sector. Q2 trends were no worse than Q1 09: venture financings were up 20% and mergers & acquisitions held steady (excluding Oracle’s acquisition of Sun Microsystems) in comparison to Q1.

With another quarter of data under our belts, we’re feeling even better about the health of technology startups. The number of new startups, venture fundings and M&A are all on the rise. In addition to decent stats, there are lots of new tech products launching across diverse categories, coming from companies both great and small. The Layoff Tracker and Deadpool have quieted down in our sector. In short, we’re feeling like there’s a more rational and focused market for startups and tech.

Strategic M&A Is Back: 3x Q2 Levels

One of the strongest signals of the quarter was the resumption of activity in mergers and acquisitions. The acquisition market really rebounded in Q3 09 to over $45 billion from 231 deals, 3x greater than Q2’s $15 billion. We haven’t seen M&A activity at this level since Q2 08, which recorded 275 deals totaling $59 billion.

Most encouraging, acquirers are adding strategically to their businesses (Amazon-Zappos, Facebook-Friendfeed, Google-On2, Yahoo!-Xoopit, VMWare-Springsource, RIM-Torch Mobile, Intuit-Mint, etc.) Some acquirers are returning to the market with multiple strategic deals (Adobe, EMC, IBM, Thomson Reuters, Yahoo!, Google, etc.) Deal making was well distributed across business segments (consumer web, retail, mobile, advertising, enterprise, biotech, cleantech)”

Read the full article here.

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Here is some news from Reuters.

“NEW YORK (Reuters) – When it comes to Cisco Systems Inc (CSCO.O) and dealmaking, the prevailing sentiment in Silicon Valley is: You can’t predict what Cisco will buy next, but you can see why it fits.

The world’s largest maker of corporate networking gear is known for its voracious dealmaking appetite, buying dozens of companies every year and digesting them quickly and efficiently to broaden its already wide-ranging business.

Cisco has led the tech industry’s charge out of the recession-induced lull in mergers and acquisitions, announcing two big deals in two weeks: wireless equipment maker Starent Networks (STAR.O) for $2.9 billion and Norwegian video conferencing maker Tandberg for $3 billion.

Analysts expect the San Jose, California-based company, which ended the last quarter with a cash balance of $34 billion, to keep up the dealmaking pace, especially now that some stability has returned to financial markets.

“The ability to expand in markets where we have been strong clearly has been a big part of what we’ve done in the past,” Hilton Romanski, Cisco’s vice president of corporate development, said in an interview on Tuesday.

“But the other major element is new market entry,” said Romanski, a former JPMorgan (JPM.N) banker who joined Cisco in 2000 and runs its global acquisition and venture investment strategy.

Cisco, which was founded in 1984, has spent about $56 billion on 174 deals so far, according to Thomson Reuters data. Along with its in-house team, Cisco occasionally uses a range of outside financial advisers, from Barclays PLC (BARC.L) to Lazard Ltd (LAZ.N).

Many of the acquisitions were start-ups or private companies with assets that bolster Cisco’s core business of making switches and routers that direct computer traffic.

But as the networking business has matured, Cisco has forayed into several new interconnected markets, such as Web-based video conferencing and online video.”

Read the full article here.

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Here is some not-so-exciting news from Businessinsider.

“The third quarter was rough for VCs, with 17 firms raising just $1.6 billion. That’s the fewest firms to raise money since 1994, and it’s the smallest amount of money raised since Q1 2003, says the NVCA and Thomson Reuters.

It’s an 81% drop from a year ago, and a second quarter of declines.

There were three big raises–Andreessen Horowitz with $58.5 million, Vinod Khosla’s fund raised $750 million, and Draper Fisher Jurvetson raised $196 million. Without those funds, it would be a nightmare.”

Read the full article here.

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SALE OF ASSETS OF OMNISONICS MEDICAL TECHNOLOGIES, INC.

INTRODUCTION
Gerbsman Partners (www.gerbsmanpartners.com) has been retained by Emigrant Bank (“Emigrant”) to solicit interest for the acquisition of all, or substantially all, assets of OmniSonics Medical Technologies, Inc. (“OmniSonics”).  OmniSonics was a leader in commercializing technology that uses ultrasound technology to break up blood clots.
A copy of the proposed purchase agreement is attached as Exhibit A, as well as a confidential information memorandum and related documents.  A Purchaser who wishes to participate in the auction must submit a sealed bid which is actually received by Emigrant no later than Friday, November 6, 2009 (the “Bid Deadline”).

The assets of OmniSonics are attractive for a number of reasons:

· FDA approved product indicated for the removal of thrombus in the peripheral vasculature and the infusion of physician specified fluids.
· Intellectual Property: a comprehensive patent estate which includes 20 issued patents and 16 pending patent applications in the U.S., as well as 6 issued patents and 13 pending patent applications outside of the U.S. Many of the key patents which cover apparatus, methods and uses do not expire until 2022.  A list of the intellectual property is attached as Exhibit B.
· Preliminary Prospective, Registry Patient Data Set for removal of thrombus in patients with Deep Vein Thrombosis (DVT) Sonic I.
· Preliminary Prospective, Registry Patient Data Set for removal of thrombus in patients with Acute Limb Ischemia) Sonic II.
· Manufacturing, Design and Calibration Equipment.
· Relationships with Third Party Manufacturers that can assist with the production of saleable product.

OmniSonics  Company Profile

Founded in 1999, OmniSonics was a private, Wilmington, MA-based revenue stage medical device company. Over the past 10 years, OmniSonics raised approximately $100MM in equity and debt from leading venture capital firms including GE Asset Management, Nomura Phase4 Ventures, Domain Associates, H&Q Asset Management and Canaan Partners.

Bankruptcy Case. On March 23, 2009, OmniSonics filed a chapter 7 bankruptcy case in the United States Bankruptcy Court for the District of Massachusetts.  John J. Aquino is Trustee. Emigrant’s affiliate, Life Sciences Capital, LLC, was a prepetition lender to OmniSonics and Emigrant has entered into a transaction with the Trustee to purchase substantially all of the assets of OmniSonics, including its intellectual property. Emigrant has retained Gerbsman Partners to conduct a sale of these assets.  Some of the former employees of OmniSonics may be available to assist purchasers with due diligence and a prompt, efficient transition to new ownership. Notwithstanding the foregoing, former employees or officers of OmniSonics and the Trustee should not be contacted directly without the prior consent of Gerbsman Partners.

Assets Being Sold. The assets which are being sold consist of substantially all of the intellectual property of OmniSonics including issued patents and trademarks, related records, patent applications, and certain equipment.   These are referred to as the “Assets.”

IMPORTANT LEGAL NOTICE

The information in this memorandum does not constitute the whole or any part of an offer or contract.

The information contained in this memorandum relating to the Assets has been supplied by former executive officers of OmniSonics and the Trustee. It has not been independently investigated or verified by Gerbsman Partners or their respective agents.

Prospective purchasers should not rely on any information contained in this memorandum or provided by Gerbsman Partners (or their respective staff, agents, and attorneys) in connection with the proposed sale, whether transmitted orally or in writing as a statement, opinion, or representation of fact. Interested parties must satisfy themselves through independent investigations and due diligence as they see fit.

Gerbsman Partners, and their respective staff, agents, and attorneys: (i) disclaim any and all implied warranties concerning the truth, accuracy, and completeness of any information provided in connection with the proposed sale and (ii) do not accept liability for the information, including that contained in this memorandum, whether that liability arises by reasons of OmniSonics’ or Gerbsman Partners’ negligence or otherwise.

Any sale of the OmniSonics Assets will be made on an “as-is,” “where-is,” and “with all faults” basis, without any warranties, representations, or guarantees, either express or implied, of any kind, nature, or type whatsoever from, or on behalf of OmniSonics, Gerbsman Partners, Emigrant or the Trustee. Without limiting the generality of the foregoing, the foregoing parties and their respective staff, agents, and attorneys,  hereby expressly disclaim any and all implied warranties concerning the condition of the Assets and any portions thereof, including, but not limited to, environmental conditions, compliance with any government regulations or requirements, the implied warranties of habitability, merchantability, or fitness for a particular purpose.

Please refer in the Confidential Information Memorandum to the section on Legal Considerations for further information about these matters, and the section on Bidding Procedures for information about bidding procedures.


BIDDING PROCEDURES

1. Each person or entity who is or may be interested in bidding for and purchasing all or some of the Assets shall be referred to as “Purchaser.” Each Purchaser who executes the Confidentiality Agreement may request access to former personnel of OmniSonics who may be made available and access to the “Data Room” which includes various documents (the “Diligence Access”).  Any Purchaser seeking access to OmniSonics personnel or who wishes to request additional information should contact Gerbsman Partners.  Each Purchaser who executes the Confidentiality Agreement and obtains the Diligence Access (whether or not such Purchaser has obtained all or some portion of the personnel and access materials) shall be deemed to acknowledge and represent:  (a) that it is bound by the bidding procedures described herein; (b) that it has had an opportunity to inspect and examine the Assets and to review pertinent documents and information with respect thereto; (c) that it is not relying upon any written or oral statements, representations, or warranties of Gerbsman Partners or Emigrant; and (d) all such documents and reports have been provided solely for the convenience of the interested party, and Gerbsman Partners and Emigrant do not make any representations as to the accuracy or completeness of the same.

2. A Purchaser who wishes to participate in the auction must submit a sealed bid, which is to be received by Emigrant no later than Friday, November 6, 2009 (the “Bid Deadline”), to Karen Wold, Emigrant Bank, 6 East 43rd Street, 20th Floor, New York, New York 10017 and e-mailed to:  Woldk@emigrant.com and steve@gerbsmanpartners.com.  The bid shall contain:  (a) a list or identification of the Assets such Purchaser wishes to purchase; (b) the amount of the bid; (c) any proposed changes to the Purchase Agreement and all exhibits and schedules, with redline to show all such changes and (d) any other information that Purchaser deems relevant.  All bids must be accompanied by a refundable deposit check in the amount of $50,000 (payable to Emigrant).

In addition:

(a) Bids may be made for all or any portion of the Assets.

(b) Any Purchaser making a bid must be prepared to provide independent confirmation that it possesses the financial resources to complete the purchase.

(c) Emigrant reserves the right to, in its sole discretion, extend the Bid Deadline, accept or reject any bid, or withdraw any or all Assets from the sale.

(d) Emigrant shall determine the highest and best bid and may contact Purchasers regarding their bids prior to the final determination.  The winning bidder will be notified as soon as possible after the Bid Deadline. Unsuccessful bidders will have their deposits returned to them.

(e) A successful Purchaser with regard to some or all of the Assets will be required to increase its deposit to $200,000 within 24 hours of being notified it is a successful Purchaser and be prepared to close within seven (7) days of being notified that its bid has been accepted. All sales, transfer, and recording taxes, stamp taxes, if any, relating to the sale of the Assets shall be the sole responsibility of the successful bidder and shall be paid to Emigrant at the closing of each transaction.  If the successful bidder fails to close, Emigrant may retain the deposit, exercise any remedies under applicable law and subsequently sell to another party.

(f) Any Purchaser who bids shall have no remedy against Emigrant or Gerbsman Partners or any other person except for the return of its deposit; provided, that, any Purchaser who enters into an Asset Purchase Agreement shall have all remedies under such Agreement and under applicable law.

(g) Copies of all bids should be sent by e-mail to steve@gerbsmanpartners.com

CONTACTS

For additional information, please do not contact OmniSonics or the Trustee directly; instead please contact:

For additional information, please see below and/or contact:

Steven R. Gerbsman
(415) 456-0628
steve@gerbsmanpartners.com

Dennis Sholl
(415) 457-9596
dennis@gerbsmanpartners.com

Kenneth Hardesty
(408) 591-7528
ken@gerbsmanpartners.com

Other covering this topic include: Xconomy, Taragana.

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