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San Francisco, January, 2014
The Black Swan Pushes Events to the Tipping Point-Maximizing Enterprise Value in the upcoming Crisis
This article was published by Steven R. Gerbsman and Robert Tillman in May, 2007.

Please read, enjoy and “be prepared”.

Best regards,
Steve Gerbsman

We are currently in one of the best economic times in our country’s history. The stock market is at all time highs, unemployment is at all-time lows, interest rates are low, money is plentiful and deal valuations are high and getting higher. There are, of course, many worrisome trends: terrorism, excessive government spending, trade deficits, high oil prices, immigration and over the longer term, such issues as an aging population and (possibly) global warming. Although problems and worries always exist, in historical terms, times are very good indeed.

The big questions for us as specialists in maximizing enterprise value are:

Will it end?

Yes. Of course. Even fundamentally healthy economies experience frequent and often violent corrections. The current world economy has evolved in many ways over the past decade. All large businesses are international. The primary economies of the world are very tightly linked together. Money is far more liquid and moves around the world with far less “friction” than it did in the past. The pace of technical change continues to increase. Nevertheless, we do not believe that the laws of history, and especially, the laws of human nature, have been repealed.

As always, “The more things change, the more that they remain the same.”

When will it end?

Unfortunately, no one knows the answer to this question. In historical terms, the current economic expansion has continued for a very long time and has survived numerous shocks, including war, a doubling of energy prices, natural disasters and localized economic downturns, such as the bursting of the sub-prime mortgage bubble. It appears to be “ripe” for a downturn. On the other hand, inherently unstable situations often persist for far longer than anyone could believe possible. During the 2000 Internet bubble, it seemed to us for quite some that the old rules of business no longer applied and that 25 year-old CEOs knew something us old guys did not know. When the crash occurred, we were relieved to find out that we were not so obsolete after all.

We did, however, underestimate the staying power of technically insolvent companies with broken or non-existent business models. Many of these companies had significant cash on the balance sheet (offset, of course, by significant liabilities) and investors who continued to infuse more cash far beyond the point of reason. Today, there exist immense pools of uncommitted cash, much of it in the hands of entities, such as private equity funds and hedge funds that are subject to minim al regulatory scrutiny and whose operations are obscured from the public view. In addition, the weakness of the dollar against both the Euro and the Pound Sterling makes U.S. assets a relative bargain. These factors tend to mitigate against an economic downturn. For how much longer they will continue to do so we do not know (and if we did know, we would certainly would not tell).

How will it end?

Fast, hard and unexpectedly. Two recent books shed a great deal of light on the process:

The first book, The Tipping Point by Malcolm Gladwell describes how human behavior causes events to cascade rapidly once a certain critical mass (the “Tipping Point”) has been achieved. Examples in the business world include periodic economic “panics” and the spread of certain technologies and products, such as personal computers, iPods, cell phones, etc. It is very difficult to predict in advance when the “tipping point” in any situation will be reached, but history has shown that, once it has been reached, events proceed very quickly.

The second book, The Black Swan: The Impact of the Highly Improbable by Nassim Nicholas Taleb describes how highly improbable, and hence unpredictable, events periodically create massive change. The title of the book derives from the observation that the existence of even a single black swan disproves the assertion that all swans are white. Historical examples include the Fall of France at the beginning of World War II, the rise of the Internet and 9/11.

There are many obvious candidates for a “black swan” event that pushes the world economy over “the tipping point” into a downturn – a war with Iran, a nuclear terrorist attack or a worldwide bird flu or small pox epidemic, but generally, it is what you do not see that gets you. We are fundamentally optimists about the long-term prospects of the world economy. In many highly measurable ways, the wor ld really is improving, driven by technological innovation, a lowering of barriers to trade and increasing economic integration. Nevertheless, we are old enough to have lived through many “bumps” along the road and know that such discontinuities will always occur. We believe that we will see a significant economic event sometime over the next 12-18 months, either localized to a particular sector or geographic region or globally.

Our Advice?

Before such an event occurs:

As a board member, investor or stakeholder:

1.  Implement tight cash flow, receivables and inventory reporting so that you are alerted to problems early.
2.  Focus on the control, preservation and forecasting of CASH on a weekly, monthly and quarterly basis.
3.  Require “bottoms up” forecasting for all aspects of revenue and expense. Have the CEO and CFO defend ALL numbers.
4.. Hold the CEO responsible and accountable for Performance. If you are off the business plan/forecast, re-forecast based on the reality of “what is” today.
5.  Communicate frequently with all parties at interest. Check that the CEO is providing leadership, motivation and morale to the management team and employees.
6.  Review all companies in your portfolio. Identify and define action plans to fix weaknesses now.
7.  Utilize professional resources to assist in maximizing enterprise value, when appropriate.
When such an event occurs:

Face up to reality and act quickly. When things are going bad, waiting seldom improves them. We have never seen a board of directors act too quickly when faced with a crisis. We have all too frequently seen a board act slowly or not at all.
Call for assistance early. The earlier professionals can get involv ed in the process, the better the potential outcome in maximizing enterprise value. Many times boards request assistance only after a company has run out of cash. Many more options exist to maximize enterprise value if a company has some running room.
About Gerbsman Partners

Gerbsman Partners focuses on maximizing enterprise value for stakeholders and shareholders in under-performing, under-capitalized and under-valued companies and their Intellectual Property. Since 2001, Gerbsman Partners has been involved in maximizing value for 79 technology, medical device, life science, digital marketing/social commerce and solar companies and their Intellectual Property and has restructured/terminated over $810 million of real estate executory contracts and equipment lease/sub-debt obligations. Since inception, Gerbsman Partners has been involved in over $ 2.3 billion of financings, restructurings and M&A transactions.

Gerbsman Partners has offices and strategic alliances in San Francisco, New York, Boston, Orange County, VA/DC, Europe and Israel.

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GERBSMAN PARTNERS
Phone: Cell: +1 415 505 4991
Email: steve@gerbsmanpartners.com
Web: www.gerbsmanpartners.com
BLOG of Intellectual Capital: blog.gerbsmanpartners.com

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Bidding Process Procedures for the Sale of certain Assets and Intellectual Property of Spinal Restoration, Inc.    
Further to Gerbsman Partners e-mail of December 3, 2013 regarding the sale of certain assets of Spinal Restoration, Inc., I attach the draft legal documents that we will be requesting of bidders for certain Assets and Intellectual Property of Spinal Restoration, Inc.  All parties bidding on the assets are encouraged, to the greatest extent possible, to conform the terms of their bids to the terms and form of the attached agreement.  Any and all of the assets of Spinal Restoration, Inc. will be sold on an ‘as is, where is’ basis and will be subject to “The Bidding Process for Interested Buyers”, outlined below.

I would also encourage all interested parties to have their counsel speak with Erik S. Romberg, Esq., counsel to Spinal Restoration, Inc.

For additional information please contact Erik S. Romberb Esq, 512 320 9278
erikromberg@andrewskurth.com

Please review in detail, the “Bidding Process for Interested Buyers” below.

The key dates and terms include:

The Bidding Process for Interested Buyers

Interested and qualified parties will be expected to sign a nondisclosure agreement (attached hereto as Exhibit A) to have access to key members of the management and intellectual capital teams and the due diligence “war room” documentation (the “Due Diligence Access”). 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 an opportunity to inspect and examine the Spinal Restoration 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 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 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 Spinal Restoration Assets. Sealed bids must be submitted so that it is actually received by Gerbsman Partners no later than Friday, January 10, 2014 at 3:00 p.m. Central Daylight Time (the “Bid Deadline”) at Spinal Restorations’ office, located at 9600 Great Hills Trail Ste. West 150 Austin, Tx. 78759. Please also email steve@gerbsmanpartners.com with any bid.

Bids should identify those assets being tendered for in a specific and identifiable way.

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 where applicable. All bids must be accompanied by a refundable deposit check in the amount of $200,000 (payable to Spinal Restoration, Inc.).  The winning bidder will be notified within 3 business days of the Bid Deadline. Unsuccessful bidders will have their deposit returned to them within 3 business days of notification that they are the unsuccessful bidder.

Spinal Restoration reserves the right to, in its sole discretion, accept or reject any bid, or withdraw any or all of the 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.

Spinal Restoration will require the successful bidder to close within a 7 day period. Any or all of the assets of Spinal Restoration 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 Spinal Restoration Assets shall be the sole responsibility of the successful bidder and shall be paid to Spinal Restoration at the closing of each transaction.

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

Steven R. Gerbsman

Gerbsman Partners

steve@gerbsmanpartners.com

Kenneth Hardesty

Gerbsman Partners

ken@gerbsmanpartners.com

Philip Taub

Gerbsman Partners

phil@gerbsmanpartners.com

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San Francisco, October, 2013
Successful “Date Certain M&A” of a Software-as-a-Service (SaaS) provider of digital marketing suites company, its Assets and Intellectual Property.
Steven R. Gerbsman, Principal of Gerbsman Partners, Kenneth Hardesty and James Skelton, members of Gerbsman Partners Board of Intellectual Capital, announced today their success in maximizing stakeholder value for a venture capital backed, Software-as-a-Service (SaaS) provider of digital marketing suites company, its Assets and Intellectual Property.

Gerbsman Partners provided Crisis Management and Investment Banking leadership, facilitated the sale of the business unit’s assets and its associated Intellectual Property. Due to market conditions, the board of directors made the strategic decision to maximize the value of the business unit and Intellectual Property. Gerbsman Partners provided leadership to the company with:

1.  Crisis Management and technology/digital marketing domain expertise in developing the strategic action plans for maximizing value of the business unit, Intellectual Property and assets;
2.  Proven domain expertise in maximizing the value of the business unit and Intellectual Property through a Gerbsman Partners targeted and proprietary “Date Certain M&A Process”;
3.  The ability to “Manage the Process” among potential Acquirers, Lawyers, Creditors Management, Advisors and the Receiver;
4.  Communicate with the Board of Directors, senior management, senior lender, creditors, vendors and all stakeholders in interest.
About Gerbsman Partners

Gerbsman Partners focuses on maximizing enterprise value for stakeholders and shareholders in under-performing, under-capitalized and under-valued companies and their Intellectual Property. Since 2001, Gerbsman Partners has been involved in maximizing value for 79 Technology, Life Science, Medical Device, Solar and Digital Marketing companies and their Intellectual Property and has restructured/terminated over $810 million of real estate executory contracts and equipment lease/sub-debt obligations. Since inception in 1980, Gerbsman Partners has been involved in over $2.3 billion of financings, restructurings and M&A transactions.

Gerbsman Partners has offices and strategic alliances in San Francisco, Boston, New York, Washington, DC, McLean, VA, Europe and Israel.

GERBSMAN PARTNERS
Phone: +1.415.456.0628, Cell: +1 415 505 4991
Email: steve@gerbsmanpartners.com
Web: www.gerbsmanpartners.com
BLOG of Intellectual Capital: blog.gerbsmanpartners.com

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San Francisco, October, 2013

Intellectual Property/Patent Acquisition Opportunity from Bell & Howell

As part of Gerbsman Partners (http://gerbsmanpartners.com) focus for maximizing value of Intellectual Property, I am attaching for your review and potential interest, two Patents for acquisition from the owner, Bell & Howell, LLC (http://bellhowell.net).  The Patents (US Patent Nos. 6,157,924 and 6,701,315, see attached) cover the same technology, which enables users to select and manage his/her preferences for receiving information from a business.

Bids for the sale of the patents will be due on November 8, 2013 and will be subject to “The Bidding Process” which will be forwarded in a separate email.

Patents (US Patent Nos. 6,157,924 and 6,701,315
Title:     Systems, Methods, and Computer Program Products for Delivering Information in a Preferred Medium  (US Patent Nos. 6,157,924 and   6,701,315)

Inventor: Pamela Sue Austin

Assignee/Owner: Bell and Howell, LLC

Abstract: The ‘924 Patent and the ‘315 Patents relate to data processing systems, methods and computer program products for delivering information in medium (or media) as selected by a customer (“user”) of a business.

Description: The ‘924 Patent and the ‘315 Patents cover the same technology. The technology enables a user to select and manage his/her preference for receiving information from a business.  The user can pick one or more communication methods for delivery, including methods such as printed material,  e-mail, HTML (browser readable), FAX, or any other method.  The solution works by allowing a user to set up a profile in a preference management system with the information provider which reflects his preference. The system will automatically reformat the information, for each user that setup a profile, to be able to deliver via the preferred delivery method.  In addition, the integrity of information delivered to a user is verified to ensure a record of delivery is available.

Innovation: The invention allows a business to deliver information and messages via one or many messaging formats based on the preference of each individual user.  In a nutshell, it allows a business to provide the information a user wants, how they want it.

Advantages: Alternative messaging via print and electronic mediums has become necessary for businesses to stay competitive, be able to satisfy customer preferences, and stay current with emerging technologies. The invention facilitates alternative messaging between businesses and a user wherein a variety of delivery media can be utilized to communicate information.

Market Potential & Application Domain: The ‘924 Patent and ‘315 Patent are very attractive to any business delivering information or communications to its customers in multiple formats.  Potential market segments that could benefit from use of the invention include:

1.         Credit card companies (Billing, membership solicitations, special offers, etc)

2.         Travel companies (Airlines, travel agencies, etc)

3.         Music and book clubs

4.         Corporations (Annual and Quarterly reports, SEC documents, proxies, meeting announcements, etc)

5.         Banks (Statements, notifications, etc)

6.         Insurance companies (Statements, solicitations, etc.)

7.         Utilities (Statements, etc)

8.         Universities (Acceptances and rejections, fund raising solicitations, course listings, grades, statements, etc)

9.         Large charities (Museums, orchestras, religious charities, benefit organizers, etc)

10.      Retailers (Catalogs, special offers, credit card solicitations, etc)

11.      Professional societies (IEEE, APS, ACS, etc)

12.      Political parties

13.      The US and state governments

14.      United States Postal Service

Technological Key Words: Alternative messaging; preference and enrollment database

Market Key Words: Alternative messaging; one-to-one marketing, multi-channel messaging, electronic delivery, EBPP

About Bell and Howell, LLC

Bell and Howell is a leading global provider of multi-channel communications solutions, providing messaging technologies for print, Web and mobile delivery.  They are dedicated to drive positive growth for their customers, and their suite of solutions are designed to be open, flexible, solve unique customer needs, and enable the highest quality and lowest cost production of highly relevant customer communications. Supporting these solutions is one of the largest dedicated service organizations in the industry. Headquartered in Research Triangle Park, N.C., the company maintains development and manufacturing facilities in Wheeling, Ill., Bethlehem, Pa., Rochester, N.Y., Dallas, Texas, and Waterloo, Ontario, Canada. For further information, please visit http://www.bellhowell.net.

About Gerbsman Partners

Gerbsman Partners is a private investment bank focused on maximizing value for stakeholders of Intellectual Property companies.  Gerbsman Partners and its Board of Intellectual Capital has helped maximize Intellectual Property stakeholder value for 79 technology, medical device, digital marketing, social commerce, life science and solar companies through our proprietary “Date Certain M&A Process” and has restructured/terminated over $ 810 million of prohibitive real estate and equipment leases, sub-debt and creditor issues. Since 1980, Gerbsman Partners has been involved in over $ 2.3 M&A, financing and restructuring transactions.

If you have any interest in the acquisition of these Patents, please call:

Steven R. Gerbsman (415) 505 4991 steve@gerbsmanpartners.com

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

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Bidding Process – Procedures for the Sale of certain Assets and Intellectual Property of Optify, Inc.

Further to Gerbsman Partners e-mail of September 9, 2013 and September 16, 2013 regarding the sale of certain assets of Optify, Inc., I attach the draft legal documents and wire transfer information that we will be requesting of bidders for certain Assets and Intellectual Property of Optify, Inc.  All parties bidding on the assets are encouraged, to the greatest extent possible, to conform the terms of their bids to the terms and form of the attached agreement and provide the wire transfer prior to the bid date.  Any and all of the assets of Optify, Inc. will be sold on an “as is, where is” basis and will be subject to “The Bidding Process for Interested Buyers”, outlined below.

I would also encourage all interested parties to have their counsel speak with Stephen O’Neill, Esq., counsel to Optify, Inc.

For additional information please contact Stephen O’Neill, Esq, 650 843 2719         oneill.stephen@dorsey.com

Please review in detail, the “Bidding Process for Interested Buyers” below.

The key dates and terms include:

The Bidding Process for Interested Buyers
Interested and qualified parties will be expected to sign a Confidential Disclosure Agreement (attached hereto as Appendix A) to have access to key members of management and intellectual capital teams and the due diligence “war room” documentation (“Due Diligence Access”). 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 Optify, Inc. 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 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 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 Optify, Inc. assets. Each sealed bid must be submitted so that it is received by Gerbsman Partners no later than Friday, October 4, 2013 at 3:00pm Pacific Time (the “Bid Deadline”) at Opitfy, Inc.’s office, located at 712 2nd Avenue, Seattle, Washington 98104.  Please also email steve@gerbsmanpartners.com with any bid.

Bids should identify those assets being tendered for in a specific and identifiable way. In particular, please identify separately certain equipment or other fixed assets.

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 Optify, Inc.).  The deposit should be wired to Optify, Inc.’s attorneys Murray & Murray, A Professional Corporation.  The winning bidder will be notified within 3 business days of the Bid Deadline. The deposit will be held in trust by Optify’s counsel.  Unsuccessful bidders will have their deposit returned to them within 3 business days of notification that they are an unsuccessful bidder.

Optify, Inc. 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.

Optify Inc. will require the successful bidder to close within a 7 day period. Any or all of the assets of Optify, Inc. 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 Optify, Inc. assets shall be the sole responsibility of the successful bidder and shall be paid to Optify, Inc. at the closing of each transaction.

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