Update to “The Bidding Process, Procedures for the Sale of Dune Medical Devices, Ltd.
Further to Gerbsman Partners sales letter of January 21, 2020 regarding the sale of Dune Medical Devices, Ltd., (“Dune”) I am attaching Appenix A- Dune NDA, Patent and Patent Application information, Dune Data Room due diligence information and Dune Medical IP overview.
Prior to the bid date of February 14, 2020, I would encourage and recommend that all interested parties have their counsel speak with Simon Weintraub, Esq., counsel to Dune, to discuss any questions or comments of a legal nature relating to the transaction. Simon is available at simonw@arnon.co.il and on Israel time, 011 972 3 608 7864.
Please review the “Important Legal Notice” below in that potential purchasers should not rely on any information contained provided by Gerbsman Partners (or their respective staff, agents, and attorneys) in connection herewith, whether transmitted orally or in writing as a statement, opinion, or representation of fact. Interested parties should satisfy themselves through independent investigations as they or their legal and financial advisors see fit.
Ken, Jim and I will be following up to review the updated Bidding Process, schedule due diligence meetings and answer any questions regarding the “Date Certain M&A Process”.
Any and all the assets of Dune will be sold on an “as is, where is” basis and will be subject to “The Bidding Process for Interested Buyers”, outlined below.
Gerbsman Partners – http://gerbsmanpartners.com has been retained by Dune Medical Devices, Ltd. (“Dune” or the “Company”), to solicit interest for the acquisition of Dune Medical Devices Ltd. by way of an asset purchase which would include include all or substantially all of Dune’s assets (including assets of Dune USA), including its Intellectual Property (“IP”), (collectively, the “Dune Assets”) and the option of transferring Dune’s operations, commercial agreements, approvals, authorizations, customer agreement and information, and all which would be required to continue and operate the Dune business (collectively the “Dune Business”).
Dune Medical Devices Ltd. is an Israeli-domiciled medical device company with offices in Caesarea, Israel, and wholly owned subsidiary Dune Medical Devices Inc. (“Dune USA”), with offices in Alpharetta, GA. Dune’s principal business is to design, manufacture, sell and distribute medical devices that differentiate and characterize microscopic tissue for the purposes of identifying normal verses malignant tissue in real-time.
Dune has been privately held since its founding in Israel in 2002. Dune USA the wholly owned subsidiary of Dune was incorporated in Delaware in 2007 and is headquartered in Alpharetta, GA. Over $100 million has been invested in its technology and products by Apax Partners, Aton Partners, The Kraft Group, Canepa Healthcare, other VC’s and private investors. A loan in the amount of $5 million dollars was secured with Oxford Finance LLC (“Oxford”) in October 2015 and remains outstanding. To date, the MarginProbe device has been approved for marketing and sales in the United States, Israel and Europe, although commercialization has been limited to Israel and the United States.
Dune Medical has a “Robust intellectual property portfolio of 60+ patents”.
The Dune Business including all assets and Intellectual Property, are offered for sale by Dune and are all subject to pledges held to the benefit of Oxford, the senior secured lender which are registered with the applicable authorities in Israel and also in the United States. A condition to the sale of the Dune Business is to repay Oxford with the proceeds from the sale of the Dune Business, in exchange for the release of such pledges. Please note that with respect to assets of the Company in Israel, certain mandatory creditors under applicable law may be entitled to receive funds prior to Oxford and these include but are not limited to employees, tax authorities and landlord. The transfer of certain assets particularly IP that was funded by the Israel Innovation Authority (IIA), are further subject to the R&D Law in Israel and require the approval of the State of Israel with respect to transfer of such assets outside of Israel.
The sale is being conducted with the cooperation of Dune. Dune and its employees will be available to assist purchasers with due diligence and assist with a prompt transition and possibility of continued employment by the purchaser.
IMPORTANT LEGAL NOTICE: The information in this memorandum does not constitute the whole or any part of an offer or a contract.
The information contained in this memorandum relating to Dune Assets has been supplied by third parties and obtained from a variety of sources. Nothing contained herein has been independently investigated or verified by Dune, Gerbsman Partners or their respective agents.
Potential purchasers should not rely on any information contained in this memorandum or provided by Dune or Gerbsman Partners (or their respective staff, agents, and attorneys) in connection herewith, whether transmitted orally or in writing as a statement, opinion, or representation of fact. Interested parties should satisfy themselves through independent investigations as they or their legal and financial advisors see fit.
Dune, and 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 herewith and (ii) do not accept liability for the information, including that contained in this memorandum, whether that liability arises by reasons of Dune or Gerbsman Partners’ negligence or otherwise. Consultants, 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 herewith and (ii) do not accept liability for the information, including that contained in this memorandum, whether that liability arises by reasons of Seller’s, Consultants’ or Gerbsman Partners’ negligence or otherwise.
Any sale of the Dune Business or Dune Assets will be made on an “as-is,” “where-is,” and “with all faults” basis, without any warranties, representations, or guarantees, either expressed or implied, of any kind, nature, or type whatsoever from, or on behalf of Dune and Gerbsman Partners. Without limiting the generality of the foregoing, Dune and Gerbsman Partners and their respective staff, agents, and attorneys, hereby expressly disclaim any and all implied warranties concerning the condition of the Dune 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.
This memorandum contains confidential information and is not to be supplied to any person without Gerbsman Partners’ prior consent. This memorandum and the information contained herein are subject to the Non-Disclosure Agreement attached hereto as Appendix A.
The Bidding Process for Interested Buyers
Interested and qualified parties will be expected to sign the Non-Disclosure Agreement (attached hereto as Appendix A) to have access to key members of management and intellectual capital teams and the due diligence data room documentation (“Due Diligence Access”), and the AirXpanders Video. Each interested party, as a consequence of the Due Diligence Access granted to it, shall be deemed to acknowledge and represent (i) that it is bound by the bidding procedures described herein; (ii) that it has had an opportunity to inspect and examine the Dune Business and Assets and to review all pertinent documents and information with respect thereto; (iii) that it is not relying upon any written or oral statements, representations, or warranties of Dune or Gerbsman Partners, or their respective staff, agents, or attorneys; and (iv) all such documents and reports have been provided solely for the convenience of the interested party, and Dune and Gerbsman Partners (and their respective staff, agents, or attorneys) do not make any representations as to the accuracy or completeness of the same.
Following an initial round of due diligence, interested parties will be invited to participate with a sealed bid, for the acquisition of the Dune Business Assets. Each sealed bid must be submitted so that it is received by Gerbsman Partners no later than February 14, 2020 (the “Bid Deadline”) at Dune’s corporate office located at 6120 Windward Parkway, Suite 160, Alpharetta, GA 30005. Please also email steve@gerbsmanpartners.com with any bid.
Any person or other entity making a bid must be prepared to provide independent confirmation that they possess the financial resources to complete the purchase. All bids must be accompanied by a refundable deposit in the amount of $200,000 payable to Dune Medical Devices, Ltd. Refundable deposit wiring instructions will be provided at a later date. The winning bidder will be notified within three (3) business days of the Bid Deadline. Unsuccessful bidders will have their deposit returned to them within three (3) business days of notification that they are an unsuccessful bidder.
Dune reserves the right to, in its sole discretion, accept or reject any bid, or withdraw any or all assets from sale. Interested parties should understand that it is expected that the highest and best bid submitted will be chosen as the winning bidder and bidders may not have the opportunity to improve their bids after submission.
Dune will require the successful bidder to close within a seven (7) day period. Any or all of the Dune Assets will be sold on an “as is, where is” basis, with no representation or warranties whatsoever.
All sales, transfer, and recording taxes, stamp taxes, or similar taxes, if any, relating to the sale of the Dune Assets shall be the sole responsibility of the successful bidder and shall be paid to Seller at the closing of each transaction.
For additional information, please see below and/or contact:
Steven R. Gerbsman
Kenneth Hardesty
Blog of Intellectual Capital 