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San Francisco, April, 2016
The Advantages of a “Date-Certain M&A Process” over an “Assignment for the Benefit of Creditors – ABC”
Apart from a formal bankruptcy (Chapter 7 or Chapter 11) there are two basic approaches to maximizing enterprise value for under-performing and/or under-capitalized technology, life science, medical device and solar companies and their Intellectual Property: a “Date-Certain M&A Process” and an assignment for the benefit of creditors (ABC).

Both of these processes have significant advantages over a formal bankruptcy in terms of speed, cost and flexibility. Gerbsman Partners’ experience in utilizing a “Date Certain M&A Process” has resulted in numerous transactions that have maximized value anywhere from 2-4 times what a normal M&A process would have generated for distressed asset(s). With a “Date-Certain M&A Process”, the company’s Board of Directors hires a crisis management/ private investment banking firm (“advisor”) to wind down business operations in an orderly fashion and maximize value of the IP and tangible assets.

The advisor works with the board and corporate management to:

  1.  Focus on the control, preservation and forecasting of CASH.
  2. Develop a strategy/action plan and presentation to maximize value of the assets. Including drafting sales materials, preparing information due diligence war-room, assembling a list of all possible interested buyers for the IP and assets of the company and identifying and retaining key employees on a go-forward basis.
  3. Stabilize and provide leadership, motivation and morale to all employees.
  4. Communicate with the Board of Directors, senior management, senior lender, creditors, vendors and all stakeholders in interest.
  5. The company’s attorney prepares very simple “as is, where is” asset-sale documents. (“as is, where is- no reps or warranties” agreements is very important as the Board of Directors, Officers and Investors typically do not want any additional exposure on the deal).
  6. The advisor then contacts and follows-up systematically with all potentially interested parties (to include customers, competitors, strategic partners, vendors and a proprietary distribution list of equity investors) and coordinates their interactions with company personnel, including arranging on-site visits.

Typical terms for a “Date Certain M&A” asset sale include no representations and warranties, a sales date typically three to five weeks from the point that sale materials are ready for distribution (based on available CASH), a significant cash deposit in the $150,000 plus range to bid and a strong preference for cash consideration and the ability to close the deal in 7 business days. Date Certain M&A terms can be varied to suit needs unique to a given situation or corporation. For example, the Board of Directors may choose not to accept any bid or to allow parties to re-bid if there are multiple competitive bids and/or to accept an early bid.

The typical workflow timeline, from hiring an advisor to transaction close and receipt of consideration is four to six weeks, although such timing may be extended if circumstances warrant. Once the consideration is received, the restructuring/insolvency attorney then distributes the consideration to creditors and shareholders (if there is sufficient consideration to satisfy creditors) and takes all necessary steps to wind down the remaining corporate shell, typically with the CFO, including issuing W-2 and 1099 forms, filing final tax returns, shutting down a 401K program and dissolving the corporation etc.

The advantages of a “Date Certain M&A” approach include the following:

Speed – The entire process for a “Date Certain M&A Process” can be concluded in 4 to 6 weeks. Creditors and investors receive their money quickly. The negative public relations impact on investors and board members of a drawn-out process is eliminated. If circumstances require, this timeline can be reduced to as little as two weeks, although a highly abbreviated response time will often impact the final value received during the asset auction.

Reduced Cash Requirements – Given the Date Certain M&A Process compressed turnaround time, there is a significantly reduced requirement for investors to provide cash to support the company during such a process.

Value Maximized – A company in wind-down mode is a rapidly depreciating asset, with management, technical team, customer and creditor relations increasingly strained by fear, uncertainty and doubt. A quick process minimizes this strain and preserves enterprise value. In addition, the fact that an auction will occur on a specified date usually brings all truly interested and qualified parties to the table and quickly flushes out the tire-kickers. In our experience, this process tends to maximize the final value received.

Cost – Advisor fees consist of a retainer plus an agreed percentage of the sale proceeds. Legal fees are also minimized by the extremely simple deal terms. Fees, therefore, do not consume the entire value received for corporate assets.

Control – At all times, the Board of Directors retains complete control over the process. For example, the board of directors can modify the auction terms or even discontinue the auction at any point, thus preserving all options for as long as possible.

Public Relations – As the sale process is private, there is no public disclosure. Once closed, the transaction can be portrayed as a sale of the company with all sales terms kept confidential. Thus, for investors, the company can be listed in their portfolio as sold, not as having gone out of business.

Clean Exit – As the sale process is private, there is no public disclosure. Once closed, the transaction can be portrayed as a sale of the company with all sales terms kept confidential. Thus, for investors, the company can be listed in their portfolio as sold, not as having gone out of business.

To this end the insolvency counsel then takes the lead on all orderly shutdown items.
In an Assignment for the Benefit of Creditors (ABC):

In an assignment for the benefit of creditors (ABC), the company (assignor) enters into a contract whereby it transfers all rights, titles, interests, custody and control of all assets to an independent third-party trustee (assignee). The Assignee acts as a fiduciary for the creditors by liquidating all assets and then distributing the proceeds to the creditors. We feel that an ABC is most appropriate in a situation with one or more highly contentious creditors, as it tends to insulate a board of directors from the process. Nevertheless, we have found that most creditors are rational and will support a quick process designed to maximize the value that they receive. A good advisor will manage relationships with creditors and can often successfully convince them that a non-ABC process is more to their advantage. Apart from its one advantage of insulating the board of directors from the process, an ABC has a number of significant disadvantages, including:

  1. Longer Time to Cash – Creditors and investors will not receive proceeds for at least 7 months (more quickly than in a bankruptcy but far slower than with a “date-certain” auction).
  2. Higher Cost – Ultimately, ABCs tend to be more expensive than a date-certain© auction. It is not uncommon for the entire value received from the sale of company assets to be consumed by fees and/or a transaction for maximizing value may not be consummated in a timely fashion.
  3. Loss of Control – Once the assets are assigned to the independent third-party trustee, the board of directors has no further control over the process. It cannot modify the process in any way or discontinue the process. Thus, it is not possible to explore multiple options in parallel.
  4. Higher Public Relations Profile – The longer time frame for the ABC process and the more formal (and public) legal nature of an ABC make it more difficult to put a positive spin on the final outcome.
  5. Messy Exit – Most independent third-party trustees do not perform the services of cleanly shutting down the remaining corporate shell. Thus, investors must either pay another party to do this job or leave it undone, resulting in increased liability.

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 91 technology, medical device, life science, cyber security, digital marketing 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, Virginia/Washington DC, Boston, 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: http://blog.gerbsmanpartners.com

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San Francisco, April , 2013
The Advantages of a “Date-Certain” Mergers and Acquisition Process Over a “Standard Mergers and Acquisitions Process”
Every venture capital investor hopes that all of his investments will succeed. The reality is that a large percentage of all venture investments must be shut down. In extreme cases, such a shut down will take the form of a formal bankruptcy or an assignment for the benefit of creditors. In most cases, however, the investment falls into the category of “living dead”, i.e. companies that are not complete failures but that are not self-sustaining and whose prospects do not justify continued investment. Almost never do investors shut down such a “living dead” company quickly.

Most hope against hope that things will change. Once reality sets in, most investors hire an investment banker to sell such a company through a standard mergers and acquisition process – seldom with good results. Often, such a process requires some four to six months, burns up all the remaining cash in the company and leads to a formal bankruptcy or assignment for the benefit of creditors. In many instances, there are a complete lack of bidders, despite the existence of real value in the company being sold.

The first reason for this sad result is a fundamental misunderstanding of buyer psychology. In general, buyers act quickly and pay the highest price only when forced to by competitive pressure. The highest probability buyers are those who are already familiar with the company being sold, i.e. competitors, existing investors, customers and vendors. Such buyers either already know of the company’s weakness or quickly understand it as soon as they see the seller¥s financials. Once the sales process starts, the seller is very much a wasting asset both financially and organizationally. Potential buyers quickly divide the company’s burn rate into its existing cash balance to see how much time it has left. Employees, customers and vendors grow nervous and begin to disengage. Unless compelled to act, potential buyers simply draw out the process and either submit a low-ball offer when the company is out of cash or try to pick up key employees and customers at no cost when the company shuts down.

The second reason for this sad result is a misunderstanding of the psychology and methods of investment bankers. Most investment bankers do best at selling “hot” companies, i.e. where the company’s value is perceived by buyers to be increasing quickly over time and where there are multiple bidders. They tend to be most motivated and work hardest in such situations because the transaction sizes (i.e. commissions) tend to be large, because the publicity brings in more assignments and because such situations are more simply more fun. They also tend to be most effective in maximizing value in such situations, as they are good at using time to their advantage, pitting multiple buyers against each other and setting very high expectations. In a situation where “time is not your friend”, the actions of a standard investment banker frequently make a bad situation far worse. First, since transaction sizes tend to be much smaller, an investment banker will assign his “B” team to the deal and will only have such team spend enough time on the deal to see if it can be closed easily. Second, playing out the process works against the seller. Third, trying to pit multiple buyers against each other and setting unrealistically high valuation expectations tends to drive away potential buyers, who often know far more about the real situation of the seller than does the investment banker.

“Date Certain” M&A Process The solution in a situation where “time is not your friend” is a “date-certain” mergers and acquisitions process. With a date-certain M&A process, the company’s board of directors hires a crisis management/ private investment banking firm (“advisor”) to wind down business operations in an orderly fashion and maximize value of the IP and tangible assets. The advisor works with the board and corporate management to:

1.  Focus on the control, preservation and forecasting of CASH.
2.  Develop a strategy/action plan and presentation to maximize value of the assets. Including drafting sales materials, preparing information due diligence war-room, assembling a list of all possible interested buyers for the IP and assets of the company and identifying and retaining key employees on a go-forward basis.
3.  Stabilize and provide leadership, motivation and morale to all employees,
4.  Communicate with the Board of Directors, senior management, senior lender, creditors, vendors and all stakeholders in interest.
5.  The company’s attorney prepares very simple “as is, where is” asset-sale documents. (“as is, where is- no reps or warranties” agreements is very important as the board of directors, officers and investors typically do not want any additional exposure on the deal). The advisor then contacts and follows-up systematically with all potentially interested parties (to include customers, competitors, strategic partners, vendors and a proprietary distribution list of equity investors) and coordinates their interactions with company personnel, including arranging on-site visits. Typical terms for a date certain M&A asset sale include no representations and warranties, a sales date typically two to four weeks from the point that sale materials are ready for distribution (based on available CASH), a significant cash deposit in the $100,000 range to bid and a strong preference for cash consideration and the ability to close the deal in 7 business days.

Date certain M&A terms can be varied to suit needs unique to a given situation or corporation. For example, the board of directors may choose not to accept any bid or to allow parties to re-bid if there are multiple competitive bids and/or to accept an early bid. The typical workflow timeline, from hiring an advisor to transaction close and receipt of consideration is four to six weeks, although such timing may be extended if circumstances warrant. Once the consideration is received, the restructuring/insolvency attorney then distributes the consideration to creditors and shareholders (if there is sufficient consideration to satisfy creditors) and takes all necessary steps to wind down the remaining corporate shell, typically with the CFO, including issuing W-2 and 1099 forms, filing final tax returns, shutting down a 401K program and dissolving the corporation etc.

The advantages of this approach include the following:

Speed – The entire process for a date certain M&A process can be concluded in 3 to 6 weeks. Creditors and investors receive their money quickly. The negative public relations impact on investors and board members of a drawn-out process is eliminated. If circumstances require, this timeline can be reduced to as little as two weeks, although a highly abbreviated response time will often impact the final value received during the asset auction.

Reduced Cash Requirements – Given the date certain M&A process compressed turnaround time, there is a significantly reduced requirement for investors to provide cash to support the company during such a process.

Value Maximized – A company in wind-down mode is a rapidly depreciating asset, with management, technical team, customer and creditor relations increasingly strained by fear, uncertainty and doubt. A quick process minimizes this strain and preserves enterprise value. In addition, the fact that an auction will occur on a specified date usually brings all truly interested and qualified parties to the table and quickly flushes out the tire-kickers. In our experience, this process tends to maximize the final value received.

Cost – Advisor fees consist of a retainer plus an agreed percentage of the sale proceeds. Legal fees are also minimized by the extremely simple deal terms. Fees, therefore, do not consume the entire value received for corporate assets.

Control – At all times, the board of directors retains complete control over the process. For example, the board of directors can modify the auction terms or even discontinue the auction at any point, thus preserving all options for as long as possible.

Public Relations – As the sale process is private, there is no public disclosure. Once closed, the transaction can be portrayed as a sale of the company with all sales terms kept confidential. Thus, for investors, the company can be listed in their portfolio as sold, not as having gone out of business.

Clean Exit – Once the auction is closed and the consideration is received and distributed, the advisor takes all remaining steps to effect an orderly shut-down of the remaining corporate entity. To this end the insolvency counsel then takes the lead on all orderly shutdown items.

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 76 Technology, Medical Device, Life Science 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 Boston, New York, Washington, DC, San Francisco, Europe and Israel.

Unknown

Steven R. Gerbsman
Principal
Gerbsman Partners
steve@gerbsmanpartners.com
http://www.gerbsmanpartners.com

BLOG of Intellectual Capital
http://blog.gerbsmanpartners.com
Skype: thegerbs

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By Stephen O’Neill, Esq. – Murray & Murray law firm

I was recently in Bankruptcy Court and I was having a discussion with a Bankruptcy Judge regarding “worst case scenarios”. On the way back to the office, I started to think about “worst case scenarios” and I realized that all of my clients, their management, directors and advisers need to start thinking about “worst case scenarios” because over the next twelve months “worst case scenarios” will become the norm not the exception. Here are the facts as I see them:

  1. Banks and Venture Lenders have dramatically reduced their lending.
  2. Banks and Venture Lenders are reviewing their loan portfolios to determine which of their clients are in the “danger zone” and they are taking aggressive actions to protect their positions.
  3. Venture Capital Firms have communicated to their portfolio companies not to expect further investments to fund negative cash flow and continuing losses.
  4. Economic conditions will significantly impact sale projections — bottom line, yesterday’s conservative projections are now very aggressive.
  5. Management of venture backed companies are by nature optimistic and almost never think of the “worst” case scenarios. Many management teams probably do not have experience, bandwidth or skills to deal effectively with distress.

What should Board members be concerned about and what should they do:

  1. The Board should scrutinize the Company’s cash position and projected cash flow/burn rate. The Board should drill down on the basic assumptions regarding the Company’s cash flow. The Board should consider hiring an outside party to conduct an independent evaluation of the Company’s cash flow and verify or refute Management’s analysis and assumptions.
  2. The Board should assess liabilities, both known and contingent, and the fair value of both tangible assets and intangible assets (for example, technology or supplier/customer relationships, lease rejection claims, severance claims). Again, the Board should consider hiring an outside consultant to guide them through the potentially unfamiliar territory of distress.
  3. If the Board determines that the Company has less than six months of cash, the Board should do the following:
    1. Obtain the advice of counsel, including insolvency counsel, to advise the Board and management of their fiduciary duties;
    2. The Board should expect in the current economic environment that further equity investment will not be forthcoming, and if sustainable cash break-even looks problematic, the Company should immediately formulate a set of options to avoid a forced crisis, including a sale process that will maximize enterprise value; and
    3. If the Company finds itself with less than six months of cash, a normal M&A process will not work. The Company should implement a “date certain” sale process, i.e., sale of the Company or its assets will have to close by a certain date due to the cash constraints of the Company. The Board should direct management or outside consultants to prepare a wind down budget which will allow the Company to sell its assets and wind down in an orderly fashion rather than a fire sale.
  4. Understand which constituencies the Board is representing (stockholders, creditors), and how those duties may or may not change depending on the Company’s financial status:
    1. Analyze the tradeoffs implied by each strategic alternative between creditors’ interests and stockholders’ interests;
    2. Confirm that the record reflects a sufficiently deliberative process and the Board’s awareness of its duties to stockholders and/or creditors. Document specifically the scope of fund-raising efforts and alternatives to financings (such as a merger, asset sale or reduction of operations to conserve cash);
    3. Actions that are implemented to increase stockholders’ value but put creditors at risk should be thoroughly scrutinized;
    4. One creditor or one class of creditors should not be given preference over another;
    5. Transactions that would constitute a preferential payment should be closely scrutinized;
    6. f) Exercise care in approving transactions that leave the Company inadequately capitalized even if the Company is solvent at the time; and
    7. Scrutinize all insider transactions.
  5. Assess likelihood of claims regarding breach of fiduciary duties.
  6. Confirm that indemnification agreements are in place (but note that unless adequate D&O insurance is in place, an insolvent company is unlikely to be able to satisfy its indemnity obligations as it lacks cash).

Stephen O’Neill is a partner in the law firm of Murray & Murray, A Professional Corporation. Mr. O’Neill specializes in advising financially distressed companies that are financed by venture capital. Mr. O’Neill was named a “Super Lawyer” by San Francisco Magazine in 2006, 2007 and 2008. Mr. O’Neill is also a frequent lecturer to professional organizations on all aspects of insolvency law.

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. In the past 60 months, Gerbsman Partners has been involved in maximizing value for 51 Technology, Life Science and Medical Device companies and their Intellectual Property and has restructured/terminated over $770 million of real estate executory contracts and equipment lease/sub-debt obligations. Since inception, Gerbsman Partners has been involved in over $2.2 billion of financings, restructurings and M&A transactions.

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

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Here is a good article by Scott Austin at WSJ Online on a subject we brought up last week.

“Start-up companies appear to be giving into investor demands of a harsher funding deal term that gained notoriety after the tech bubble burst in the early part of the decade.

According to two separate quarterly reports issued last week from law firms Fenwick & West and Cooley Godward Kronish, venture capital firms are more frequently receiving multiple liquidation preferences that protect them from losing out on investments.

Venture capital firms almost always receive preferred stock when they invest in companies, giving them certain rights over common stock holders, usually the founders and executives. One of these standard rights is a liquidation preference, which gives preferred stock holders the right to get their money back from a company before other common stock holders in an unfavorable sale or liquidation.

But with more companies in trouble, investors are inserting multiple liquidation preferences into term sheets, meaning they could get two times or more the amount of capital they invested. That can create nightmarish capital structures for companies but give them more incentive for them to become successful.”

Read the full article here.

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Venture companies explore new demands with unusual technologies and services. However at present, consumption grows at a sluggish pace under a stagnant economy due to the high cost of raw materials and the subprime loan issue. Under this circumstance, many venture companies do not have reliable asset resources and a firm business infrastructure. Small companies are struggling to raise funds under a tough environment.

Read more here.

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Steven R. Gerbsman, Principal of Gerbsman Partners and James McHugh, a member of Gerbsman Partners Board of Intellectual Capital, announced today their success in maximizing stakeholder value for a medical device company that focuses on flexible endoscopic technologies that enable surgical procedures through the body’s natural openings.

For more – click here

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With this latest move, Apple continues to grab for the portable media market. The latest addition is that consumers will be able to purchase recent releases on iTunes on the same day as it is released on DVD. At a $14.99 price tag Apple is likely to continue its grab for marketshare.

Here is a good analysis from Om Malik: “Given its history, the odds of Apple replicating the success it’s had with music in the movie download business are pretty high. The near ubiquity of its iTunes software and easy download process render it a good candidate for making a habit out of downloading movies. There is, of course, one problem when buying and download movies online: It takes forever.”

This is good news for the ISP´s, whom now have more upsell arguments and branding opportunities when sellling broadband connections. On the bad side, VOD Online DVD rental outlets might face some challanges that will shake up their business models quite hard.

Click here to read more

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