From the category archives:

M&A

Guest Post by Mitchell C. Littman, Esq.

 

 

So, what is a Secondary Market Transaction?

A Secondary Market Transaction is a negotiated private sale of restricted securities of an Issuer whose securities are not publicly traded. Some transactions are effected directly from Seller to Buyer and in some instances one or both parties may be represented by a broker-dealer who may earn a commission on the transaction.

Who are the Issuers?

The Issuers that have attracted the most market attention have been social networking and technology firms that have chosen to remain private but that have (i) used equity and equity-linked reward systems in attracting and incentivizing employees and (ii) received private equity or venture capital investments from some combination of angels and institutional investors.

Who are the Sellers?

The overwhelming majority of Sellers have been founders or early-stage employees that have left the employ of the Issuer, though there has been some selling by early stage investors (primarily angels, rather than VCs who have tended to participate in follow-on rounds). Ex-employees have typically obtained their Shares through the exercise of stock options or by receipt of restricted stock grants.

What securities are they selling?

Most sales are of Common Stock, though there have been some sales of Preferred Stock. Some Issuers have two classes of Common Stock – a class with super-voting rights and a plain vanilla class of Common Stock. In such cases, the vanilla class is invariably the security being sold. All such shares are typically deemed to be ‘restricted securities’ under applicable Federal and state securities laws.

Additional Hurdles to Effecting a Purchase and Sale: ROFR’s and Co-Sale Rights

In addition to the outright prohibition on Transfers, most Restricted Stock Purchase Agreements or Option Exercise Agreements include provisions granting a “Right of First Refusal” (a “ROFR”) under which the Issuer (or its designee), within a prescribed period of time after receipt of a Transfer Notice, may elect to purchase the Shares on substantially the same terms as those proposed in the Transfer Notice.

In some instances, particularly where the Shares to be transferred consist of Preferred Stock, other early stage investors in the Issuer may also have ROFR’s and/or Co-Sale rights entitling them to also sell Shares along with the Seller.

The exercise of any of these rights by the Issuer or another stockholder effectively derails the purchase by the Buyer.

Virtually all ROFR and Co-Sale provisions provide that, in the event the rights are NOT exercised, the Seller has a fixed number of days in which to complete the Transfer to the Buyer. In the event the transaction is not completed within the allotted time, any subsequent attempt at Transfer must once again pass through the ROFR and/or Co-Sale process.

Effecting the Purchase and Sale: The Stock Transfer Agreement

The core document for effecting the purchase and sale of the Shares is the “Stock Transfer Agreement” (also sometimes called a “Stock Purchase Agreement”) (the “STA”).

The typical STA contains:
• The principal terms of the sale, i.e., number of Shares to be sold, price and the like
• Representations and warranties of the Seller include Title to Shares; Absence of any lien or encumbrance; Power and authority to sell.
• Representations, warranties and covenants of Buyer include Power and authority; Sale was not effected through any public advertising or general solicitation; Buyer is taking for investment intent; Buyer is sophisticated and has sufficient access to information
• Buyer absolves Seller for any liability due to the fact that Seller may have superior information regarding the Issuer Buyer agrees to be bound by same restrictions as were applicable to the Shares in the hands of the Seller

Closing Mechanics

Assuming the ROFR is not exercised, the parties may proceed to a closing. Generally speaking, the Seller and Buyer execute and deliver the STA to the Issuer for its approval.

Seller delivers Stock Certificates to the Issuer or its Transfer Agent.
(Some Issuers actually require that all Stock Certificates be held in escrow by Issuer’s counsel to facilitate transfer in the event of a ROFR exercise. In that case, the other parties will only receive photocopies of the certificates.)

Once approved, a virtual closing is conducted, with the Purchase Price being wired by the Buyer to the Seller and the STA signatures and the opinion of Seller’s counsel being released to the parties. Subsequently, the Issuer issues a new Stock Certificate in the name of the Buyer.

About Mitchell C. Littman, Esq.

Mitchell Littman is a founding partner of Littman Krooks LLP and heads the firm’s corporate and securities department. His practice includes public and private offerings, broker-dealer and investment banking matters, secondary market transactions, venture and private equity capital investments and mergers and acquisitions

About Wedbush Securities Private Shares Group
The Private Shares Group of Wedbush Securities covers the growing base of privately traded securities, with an emphasis on those in the social media space. The mandate of the group is to build our trading network in all private shares, source deal flow in the space (including “initial private offerings”), and to build funds and create other alternative investment opportunities across private shares for our institutional and accredited retail clients.

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In February 2010, Salesforce CEO Marc Benioff wrote a guest post on Techcrunch.   He started by saying:

“I quit my job at Oracle in 1999 because I couldn’t stop thinking about a simple question: “Why isn’t all enterprise software like Amazon.com?  Why couldn’t applications be run from a simple website, without software or hardware to install, and pricy consultants to hire? Why couldn’t we just compute in the Internet, or the cloud, and get away from the data center and all its complexity. Simply put, I wanted to simplify the enterprise. It was a pretty straight-forward idea, but from the confines in which I sat, there wasn’t anything close to a straight-forward solution.  That vision led to the founding of salesforce.com. “

He continued:

“In this decade, I’ve become obsessed with a new simple question: “Why isn’t all enterprise software like Facebook?” As we were focused on bringing enterprise computing into the modern age, Facebook redefined the values of consumer computing and helped ignite the social phenomenon. The compelling aspect of feeds, profiles, and groups, amplify the service’s stickiness. So does its functionality on a mobile device like an iPhone—necessary to secure a service’s status as a “killer app.” Facebook is where I start my day to find out what my friends and family are doing. It’s where I go to see the important events in my social life. Everything I care about and need to know is pushed to me—and it requires no work on my part.  What does the social revolution mean for business, though?

New real-time cloud applications, platforms, and infrastructure offer the path to redefine the future of collaboration. Now in beta, Salesforce Chatter takes the best of Facebook, Twitter, and other social leaders, for instance, and applies it to enterprise collaboration—making people more productive and businesses more competitive…..We are on the precipice of a major shift in our industry. It stems from a change we badly needed and the once-in-a-decade question we had to ask. And this time, we are all ready for the answers. Luckily, this time, I don’t have to leave my job to find out what they are.”

 

With that context, it is not a surprise that Salesforce continued to aggressively extend its social capabilities by acquiring Radian6 for $326 million.  The acquisition unites the leader in enterprise cloud computing with a leading social media monitoring.  At a revenue run rate of $35, the 9X revenue multiple is not cheap, but given Adobe’s recent acquisition of Omniture for $1.8 billion, the acquisition may look prescient if Salesforce can leverage Radian6’s toolset into a broad range of data applications that become as mission critical as Salesforce’s core applications.  Explaining the deal, Salesforce’s Press Release notes:  “The first phase of cloud computing was about leveraging technologies that were low cost, fast and easy to use on your desktop. Cloud 2 represents the next generation of cloud computing, one that is inherently social, mobile and open. “

 

Radian6’s core offering provides corporations with the ability to engage with customers’ interactions.   Salesforce will integrate Radian6 with its Chatter feeds to enable clients to monitor and analyze customer communications occurring on Facebook pages, Twitter, and across the blogosphere.

 

Salesforce is leading the charge into social in response to a client base that is demanding tools to gain transparency into what has become a core focus for businesses.

While we revere Marc Benioff, and his unique forward looking capabilities, we believe that Salesforce is a First Internet company, trying to evolve in to a Second Internet (Social Internet) company, with social at the core.  We believe that is a remarkably difficult transformation for any organization, and believe that other enterprise software companies, like Jive Software, that started as a Second Internet company have a distinct advantage over Salesforce.

 

We remain convinced that enterprise represents a monstrous opportunity for Second Internet companies, we also recognize that First Internet enterprise companies are not going quietly in to the night.  Fasten your seat belts, it’s a going to be a bumpy ride.

 

 

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SocialBeat’s Dean Takahashi reports that Digital Sky Technologies (DST) has agreed to pay AOL $187.5 million for ICQ, the largest instant messaging service in Russia, and a number of other markets.  According to Time Warner, ICQ has over 100 million accounts registered, and more than 32 million unique visitors per month, which was started in 1996 by Israeli firm Mirabilis, which AOL acquired for $407 million back in 1998.

While DST for a long time has been an owner in Eastern block countries of significant social media assets, more recently they have become known as a secondary investor in companies like Facebook, Zynga, Groupon and Tencent.  Yuri Milner, CEO of DST, said “the acquisition of ICQ is a strategic enhancement of our business in Russia and Eastern Europe.”

So does this acquisition of ICQ position them as a competitor, or better yet – frenemy, to their existing or future social media investments?  Although DST has been an owner operator largely in the Eastern block countries, and it now appears they have more global aspirations, so it will be interesting to see how the market reacts to DST in future investment opportunities.

In a BusinessWeek interview in February 2010, Yuri Milner says “I am making big investments… You just have to be personally involved.”  He goes on to say, “I’d like to see DST as a significant global investment company in the Internet arena.”

As we understand it, DST hasn’t taken board seats in their late stage deals at companies such as Facebook and Zynga, but its hard to believe that their hundreds of millions of dollars of investment hasn’t yielded them with a wealth of confidential information that Facebook, Zynga and others wouldn’t want their competitor to get a hold of.  And now DST could just be that competitor?

Sure, Facebook and others probably aren’t worried about ICQ as a competitor, but DST has certainly proven that they have access to nearly unlimited capital and they’re willing to pay a premium or above, so what’s next on their acquisition horizon and how much are they willing to pay?  Were they paying premiums in these companies for a strategic reason we didn’t quite see at the time?  Is this something their current or future portfolio companies should be worried about?  Did Mark Zuckerberg miss the writing on the wall?  Tell us what you think.

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