Maximizing Value of Privately Held Company
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This panel discussion focused on maximizing the value of a privately held company. The panelists discussed the importance of having a solid legal foundation for the business through proper entity formation and shareholder agreements. Common issues with privately held companies like succession planning and conflicts between owners and management were also addressed. The panel recommended preplanning activities like interviewing investment bankers and improving financial reporting to prepare a company for a future transaction. Family law issues when going through a divorce, like fiduciary duties between spouses and valuing a community property business, were also covered.
![ADDITIONAL FIDUCIARY DUTIES
• No Unilateral Transfers of Assets During Marriage:
oNon Compliance gives rise to a claim for breach of fiduciary duty, as well
as a “set-aside” remedy on behalf of the aggrieved spouse.
oAutomatic Temporary Restraining Orders [ATROs], become effective
immediately upon service of summons. The ATROs prohibit each spouse
from:
Transferring, encumbering, hypothecating, concealing, or in any
way disposing of any property, real or personal, whether
community, quasi-community, or separate without the written
consent of the other party or an order of the court, except in the
usual course of business or for the necessities of life.
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![So how would a spouse’s fiduciary duties come into play in the decisionmaking process for the business, prior to or during a dissolution proceeding?
•Right to Manage Community Property
o In general, either spouse has the right to manage and control the
community property subject to an exception regarding business.
o A spouse who is operating or managing a business, or an interest therein,
which is all, or substantially all, community property has:
1.
2.
Primary management and control of that business; and
Can act alone provided he/she gives prior written notice to the
other spouse of any sale, lease, exchange, encumbrance, or
other disposition of all or substantially all of the property used
in the operation of the business.
[Family Code § 1100(D)]
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![IMPACT OF A DISSOLUTION PROCEEDING ON A COMMUNITY
PROPERTY BUSINESS (cont.)
•What if the spouse to whom the business is awarded in a division of assets does not have
the resources to buy-out the other spouse?
o Sell the business to satisfy the court ordered distribution of business assets;
o Award one spouse marital assets equal in value to the spouse’s interest in the
business;
o Long term payout to the spouse of the value of the business, with interest.
[Consider Tammen note].
•How can a spouse who owns a business, either alone or with other business partners,
protect the business and other owners?
o Prenuptial agreement
o Post-nuptial agreement
o Buy-sell agreement
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Maximizing Value of Privately Held Company
- 1. MAXIMIZING THE VALUE OF A PRIVATELY HELD COMPANY MODERATOR: Alexander B. Kasdan, Managing Director, DelMorgan & Co. PANEL: Neil Morganbesser, President and CEO, DelMorgan & Co. William F. Capps, Partner, Chairman, Corporate Department, Jeffer Mangels Butler & Mitchell LLP Harlee M. Gasmer, Partner, The Kolodny Law Group
- 2. Expert Webcast is a sophisticated digital thought leadership platform and an online resource for the professional and business communities. Expert Webcast produces the industry’s leading webcast panels covering corporate, M&A, restructuring and finance topics. Expert Webcast panels address most pressing issues for business owners, C-level executives, corporate advisers and institutional investors. For speaking and sponsorship opportunities, please contact us: Anna Spektor: anna@expertpresence.com Follow Expert Webcast on LinkedIn: www.expertwebcast.com 2
- 3. Alexander B. Kasdan, Managing Director, DelMorgan & Co., has more than twenty years of investment banking, real estate, corporate law and corporate strategy experience. Mr. Kasdan has executed over 100 domestic and cross-border transactions totaling more than $10 billion in overall volume in a variety of industries. Prior to joining DelMorgan, Mr. Kasdan founded Convergence Capital Partners, LLC, a boutique investment banking advisory and real estate investment firm and was an investment banker at Peter J. Solomon Company, Credit Suisse First Boston and Merrill Lynch, in New York and Moscow, Russia. 100 Wilshire Blvd. Suite 750 Santa Monica, CA 90401 (310) 980-1718 ak@delmorganco.com www.delmorganco.com Mr. Kasdan practiced law with O’Melveny & Myers LLP (formerly O’Sullivan Graev & Karabell LLP) and Paul, Hastings, Janofsky & Walker LLP (formerly Battle Fowler LLP), where he specialized in mergers and acquisitions, private equity and corporate finance transactions. In addition, Mr. Kasdan served as Corporate Counsel in charge of business development at Schlumberger Ltd., a global oilfield and information services company. Mr. Kasdan graduated magna cum laude from Middlebury College with a B.A. degree in Economics and Italian and was elected to Phi Beta Kappa during his junior year. In addition, he holds a J.D. degree from Columbia University Law School and has studied at the University of Florence in Italy. Mr. Kasdan is admitted to the Bar in the State of New York. Mr. Kasdan is a Senior Advisor to Governance and Transactions LLC, an advisory firm established in 2003 by Mr. James L. Gunderson, former Secretary and General Counsel of Schlumberger Limited, to assist boards, management and owners with corporate governance, compliance, structuring and strategic transactions. 3
- 4. Neil Morganbesser is co-Founder and President & CEO of DelMorgan & Co. where he provides senior leadership within the firm and helps oversee all client engagements. Mr. Morganbesser is also CEO of Globalist Capital LLC, DelMorgan’s broker-dealer affiliate. Mr. Morganbesser has over 20 years of experience providing financial and strategic advice to a full range of clients, including entrepreneurs, large corporations, governments, family businesses, private equity funds, and special committees of public companies. Mr. Morganbesser has been affiliated with some of the leading institutions in the world, and his experience ranges from representing the offshore owners in the sale of a small, private U.S. company for $10 million to representing the special committee of a large, public company in a $9 billion negotiated management buyout with a highly complex financial structure. 100 Wilshire Blvd. Suite 750 Santa Monica, CA 90401 (310) 319-2000 nm@delmorganco.com www.delmorganco.com Mr. Morganbesser has truly global experience with the most sophisticated transactions, across a broad range of industries and in a large number of jurisdictions, as the lead banker on a wide variety of transactional and other advisory assignments, including domestic and cross-border mergers, acquisitions, joint ventures, sales and divestitures, restructurings, special committee assignments, unsolicited acquisitions and hostile defense. With transactional experience in over 30 countries, Mr. Morganbesser has successfully advised on over 75 transactions. Until May 2008, Mr. Morganbesser was the head of West Coast and Asia Mergers & Acquisitions at Bear Stearns & Co., as a Senior Managing Director based in Los Angeles. Prior to joining Bear Stearns in May 2001, Mr. Morganbesser was an investment banker in the Mergers, Acquisitions and Restructuring Department at Morgan Stanley (in New York from 1993-1998 and in Los Angeles from 1998-2001). From 1990-1993, Mr. Morganbesser was a corporate and M&A attorney at the preeminent New York law firm of Wachtell, Lipton, Rosen & Katz. Mr. Morganbesser graduated with an A.B. magna cum laude in Applied Mathematics / Economics from Harvard University (Phi Beta Kappa) in 1986 and received his J.D. and M.B.A. degrees (Order of the Coif, with honors) from Stanford University in 1990. 4
- 5. Bill Capps is a partner and chairman of the Corporate Department. He represents some of the Firm's higher visibility corporate and banking clients in many business matters, with particular emphasis on securities matters (including mergers and acquisitions and representation of Special Committees), international matters, real estate and building materials companies, corporate finance, franchising, executive compensation planning, litigation management and health care transactions. His experience includes serving substantial corporate clients in all business matters. In addition, Bill is a licensed real estate broker. 1900 Avenue of the Stars7th Floor Los Angeles, CA 90067 (310) 201-3513 Wcapps@JMBM.com www.JMBM.com Bill holds a J.D. degree from Boalt Hall School of Law, University of California, Berkeley, 1973, and a B.A. degree with high honors from Whittier College, 1968. Representative Experience: •Representation of Fortune 500 companies in all aspects of international transactions •Representation of building materials industry •Representation of significant families in Southern California in business and personal planning including succession planning •Strategic litigation management for major disputes 5
- 6. 9100 Wilshire Boulevard Ninth Floor, West Tower Beverly Hills, CA 90212 310.271.5533 Ext. 257 gasmer@kolodnylawgroup.com www.kolodnylawgroup.com Harlee M. Gasmer, a partner with Kolodny Law Group, began her law career in 1985, and by 1991, was devoting her practice almost exclusively to family law. In 1995, she helped found Kolodny & Anteau, where she remained a partner until 2004, at which time she left to co-run EJM Development, her family’s real estate development company. At EJM, she obtained firsthand knowledge of commercial financing, underwriting and the estate planning issues involved in a multi-generational business. In 2013, Harlee joined Kolodny Law Group as a partner and resumed her family law practice. Harlee holds a B.S. degree from UCLA and a J.D. from Loyola Law School, Los Angeles. 6
- 7. Anna Spektor is organizer and host of Expert Webcast, a sophisticated digital thought leadership platform and an online resource for the professional and business communities. Expert Webcast produces the industry’s leading webcast panels covering corporate, M&A, restructuring and finance topics. 100 Wilshire Blvd. Suite 750 Santa Monica, CA 90401 (310) 995-6579 anna@expertpresence.com www.expertpresence.com Expert Webcast panels address most pressing issues for business owners, C-level executives, corporate advisers and institutional investors. Anna is also a seasoned business development consultant and founder of Expert Presence, a leading management consultancy dedicated to helping professionals and senior executives effectively reach and engage target audiences, develop and solidify stakeholder relationships and increase brand awareness locally and nationwide. 7
- 8. MAJOR TOPICS •Preparing for personal eventualities: o Preserving the value of the business o Estate and succession planning o Family law issues o Insurance •Corporate law and business planning: o Corporate documents o Buy-sell agreements o Unresolved legal issues (e.g., environmental, litigation) •Financial issues: o Capitalization o Accounting and financial reporting o Valuation •Management •Boards of Directors / Advisors •Customer management •Preparing for a sale or recapitalization •Selection of professional advisors 8
- 9. PRIVATELY HELD COMPANY TRANSACTIONAL CONSIDERATIONS •Drivers of private company deals •Planning for the exit •Succession planning issues •Strategic v. financial buyers •Due diligence and access to information •Transaction timing and process •Transaction considerations and structures: strategic, legal, tax, accounting •Post-transaction planning •Assembling the deal team •Case studies 9
- 10. Illustrative Transaction Timeline Feb Mar Apr May J une Week Beginning 02/20 02/27 03/06 03/13 03/20 03/27 04/03 04/10 04/17 04/24 05/01 05/08 05/15 05/22 05/29 06/05 06/12 Preparation Phase Engagement of DelMorgan & Co. DelMorgan due diligence Preparation of teaser (pre-marketing material) Preparation of investor presentation Preparation of financial model Set up and populate virtual data room Draft all necessary pre-marketing phase documents Marketing Phase Initial discussions with potential investors/acquirers Teaser sent out / meeting scheduling Interested parties to sign a confidentiality agreement Investor/acquirer due diligence Request term sheets (subject to due diligence) Review term sheets and notify selected parties Due Diligence and Execution Phase Compilation of due diligence materials Provide access to confirmatory due diligence materials Preparation of legal documentation Final term sheet Negotiate final terms with selected parties Signing Announce transaction Approvals File for regulatory approval Obtain regulatory approval Closing Note: Timeline is subject to change (shorter or longer) based on availability of information and market response. 2/18/2014 CONFIDENTIAL 10
- 11. 1. Building on a Solid Legal Foundation Business model is legal and well understood (e.g. werentforyou.net) Choice of legal entity and form of business (e.g. when LLC is not appropriate) Shareholder agreements regarding: -- Management -- Capitalization -- Restrictions on transfer -- Sale or disposition of company 1 Maximizing value of a private held company 11
- 12. 2. Common issues and problems Conflict between passive owners and active management Succession planning in large families Parents who are "too old" Team members who are playing for the other team Resolving problems in the business Lender and landlord consents 2 Maximizing value of a privately held company 12
- 13. 3. Preplanning activities Make contact and interview investment bankers -- investment bankers will have good ideas about the drivers of value in the company -- your attorney should know all of the relevant investment bankers Improve the financial reporting and controls in the business -- very common problem is the lack of a sophisticated accounting firm or process Resolve issues with executive personnel -- owner may have to incentivize management -- replace obstacles 3 Maximizing the Value of a Private Held Company 13
- 14. FAMILY LAW ISSUES ARISING FROM A PRIVATELY HELD COMPANY • WHAT ISSUES MUST THE PRIVATELY HELD BUSINESS OWNER CONSIDER WHEN DIVORCE IS INVOLVED? o PRIOR to o DURING and o AND POST-SEPARATION • WHAT IS THE STANDARD OF CARE BETWEEN SPOUSES IN DEALING WITH EACH OTHER AND THEIR ASSETS? 14
- 15. STANDARD OF CARE BETWEEN SPOUSES • Until the mid-1970s, the “good faith” standard was imposed upon married persons. • This standard has since evolved into the higher “confidential duty” and “fiduciary duty” standards. • On January 1, 1994, Family Code § 721 became operative which significantly changed the duties owed between spouses. 15
- 16. DUTY OF HIGHEST GOOD FAITH BETWEEN SPOUSES • Family Code § 721(b): o This section imposes a fiduciary duty of the highest good faith and fair dealing on each spouse, such that neither shall take any unfair advantage of the other. o The fiduciary relationship between spouses is subject to the same rights and duties of non-marital business partners, as provided in the Corporations Code. 16
- 17. DUTY OF HIGHEST GOOD FAITH BETWEEN SPOUSES (cont.) • Duties/Responsibilities include: oProviding each spouse access at all time to any books regarding a transaction for purposes of inspection and copying; oRendering upon request, true and full information of all things affecting any transaction which concerns the community property; oAccounting to the spouse, and holding as a trustee, any benefit or profit derived from any transaction by one spouse without the consent of the other spouse which concerns the community property. 17
- 18. ADDITIONAL FIDUCIARY DUTIES • No Unilateral Transfers of Assets During Marriage: oNon Compliance gives rise to a claim for breach of fiduciary duty, as well as a “set-aside” remedy on behalf of the aggrieved spouse. oAutomatic Temporary Restraining Orders [ATROs], become effective immediately upon service of summons. The ATROs prohibit each spouse from: Transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community, quasi-community, or separate without the written consent of the other party or an order of the court, except in the usual course of business or for the necessities of life. 18
- 19. So how would a spouse’s fiduciary duties come into play in the decisionmaking process for the business, prior to or during a dissolution proceeding? •Right to Manage Community Property o In general, either spouse has the right to manage and control the community property subject to an exception regarding business. o A spouse who is operating or managing a business, or an interest therein, which is all, or substantially all, community property has: 1. 2. Primary management and control of that business; and Can act alone provided he/she gives prior written notice to the other spouse of any sale, lease, exchange, encumbrance, or other disposition of all or substantially all of the property used in the operation of the business. [Family Code § 1100(D)] 19
- 20. IMPACT OF A DISSOLUTION PROCEEDING ON A COMMUNITY PROPERTY BUSINESS •What value to assign to the business? Will require expert involvement oCPA, Accountant oBusiness broker / investment banker oReal estate broker or agent oIndustry specialist •How to divide the business between spouses? oAward the business to one spouse when only that spouse is capable of operating/managing the business; oAward the business to the spouse who was not the operating/managing spouse; or oAward the business to both spouses and have them operate/manage the business together. 20
- 21. IMPACT OF A DISSOLUTION PROCEEDING ON A COMMUNITY PROPERTY BUSINESS (cont.) •What if the spouse to whom the business is awarded in a division of assets does not have the resources to buy-out the other spouse? o Sell the business to satisfy the court ordered distribution of business assets; o Award one spouse marital assets equal in value to the spouse’s interest in the business; o Long term payout to the spouse of the value of the business, with interest. [Consider Tammen note]. •How can a spouse who owns a business, either alone or with other business partners, protect the business and other owners? o Prenuptial agreement o Post-nuptial agreement o Buy-sell agreement 21