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

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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.
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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.
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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 Stars
7th 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
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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.
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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.
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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
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9. PRIVATELY HELD COMPANY TRANSACTIONAL CONSIDERATIONS
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•
•
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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
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10. Illustrative Transaction Timeline
Feb
Mar
Apr
May
June
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
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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
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Maximizing value of a private held company
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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
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Maximizing value of a privately held company
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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
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Maximizing the Value of a Private Held Company
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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?
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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.
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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.
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17. DUTY OF HIGHEST GOOD FAITH BETWEEN SPOUSES
(cont.)
• Duties/Responsibilities include:
o Providing each spouse access at all time to any books regarding a
transaction for purposes of inspection and copying;
o Rendering upon request, true and full information of all things affecting
any transaction which concerns the community property;
o Accounting 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.
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18. ADDITIONAL FIDUCIARY DUTIES
• No Unilateral Transfers of Assets During Marriage:
o Non Compliance gives rise to a claim for breach of fiduciary duty, as well
as a “set-aside” remedy on behalf of the aggrieved spouse.
o Automatic 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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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)]
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20. IMPACT OF A DISSOLUTION PROCEEDING ON A COMMUNITY
PROPERTY BUSINESS
• What value to assign to the business? Will require expert involvement
o
o
o
o
CPA, Accountant
Business broker / investment banker
Real estate broker or agent
Industry specialist
• How to divide the business between spouses?
o Award the business to one spouse when only that spouse is capable of operating/
managing the business;
o Award the business to the spouse who was not the operating/managing spouse; or
o Award the business to both spouses and have them operate/manage the business
together.
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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
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