We continue to work our way through wind downs in the third part of the series from Roger Glovsky. Roger, you have the floor…
The primary responsibility for shutting down operations and liquidating assets falls on the managers and/or owners of the business, at least until or unless the creditors or court system takes over. This could come as a nasty shock to some investors. Many angel investors or even venture capitalists enter a transaction with the intent of just contributing money. They may be surprised to learn some day that the management team for the company they invested in have all resigned and that no one is remaining to wind down the business, sell off the assets, or pay down the liabilities. Suddenly, one day the investor or owner receives a call (most likely from a creditor) asking what they plan to do with their company and how they plan to address the outstanding liabilities. Not a happy call for the investor or owner.
Whether you are a manager or an owner faced with winding down a business, the goal of the person winding down the company is to fulfill his or her fiduciary obligations and preserve the management’s or owner’s business reputation. The first step is to assess the financial situation of the business. The second step is to take note that time is of the essence and the longer it takes to do the first step, the more time, money and reputation it will cost the management or owners.
When you buy an existing business, you typically do what is referred to as "due diligence" to make sure you know what you are buying. Similarly, when you are winding down a business, you must do your due diligence to make sure you know what assets and liabilities the company still has and how best to handle them. This is what I call "reverse due diligence". Reverse due diligence involves all of the same information that a buyer or investor might request for a growing business, but for a different purpose: the purpose is for marshaling assets and managing liabilities to maximize value on the downside. In normal due diligence, a buyer will scrutinize financial information and disclosure schedules looking for hidden liabilities that may detract from the value of the acquired company. In reverse due diligence, the person winding down a business is looking for hidden assets that can maximize value and facilitate the settlement of the company’s obligations.
So, what information do you need?
1. Financial Information. Most importantly, you need to get a good handle on the financial situation. Are there current financial statements (e.g., P&L, balance sheet, cash flow) prepared by an outside accounting firm? If not, start with the most recent tax return and review all information relating to income, balance sheet, assets, liabilities, and capital structure. Are there internal financial statements prepared by the company? Is there a Quickbooks file (or other accounting software) that can print a transaction report for the current or prior years? What might be the "off-balance-sheet" assets? Seek help from the company’s accountant and financial advisors to make sure that the financial information is accurate and up to date.
2. Taxes. Make a list of all states in which the company is obligated to pay taxes. What is the process in each state for submitting final tax returns? What tax good standing certificates are required for dissolution? What are the outstanding tax obligations (e.g., payroll taxes, estimated taxes, annual taxes, sales taxes)? What obligations are coming up in the near future? What tax obligations or tax filings will be required after the company ceases operations? What money will you need to reserve for payment of taxes after dissolution?
3. Hard Assets. List all assets, including both "hard" assets and intangible assets. Hard assets include computers, equipment, furniture, products, and inventory. Are the assets leased or owned? Are the assets worth more sold separately or combined with other assets (such as a product line or customer contract)? You may want to start with the most recent balance sheet to identify major assets that have been capitalized. Which assets are most valuable? Which assets can be sold easily (e.g., using brokers, auctioneers, eBay, or Craigslist)? Are there any strategic assets that may be desired by vendors, partners or competitors?
4. Soft Assets. Soft assets are intangibles that include securities, accounts receivable, contract rights, bank accounts and cash. Intangibles also include intellectual property such as patents, copyrights, trademarks, websites, blogs, and domain registrations. Is there technical information or process know-how that employees (or former employees) could document and make available for sale? What is the value of the brand and how can it be transferred? Is there software or technology (or other IP) that could be licensed? Can customer lists be sold?
5. Potential Buyers. Can you identify a specific list of potential buyers? Who might have a strategic or competitive business interest in some or all of the assets? Consider vendors, contractors, customers, strategic partners and affiliated entities. Would business brokers or investment bankers be able to find potential buyers? If not, are there auctioneers or liquidators who would help fire sale the assets?
6. Lenders. What loans or financings has the company entered into? Are there other credit arrangements? Make sure that you review executed (i.e., final) drafts of all documents. What do the documents require? Which creditors or obligations take precedence? What happens in the event of default? Are there any personal guarantees? Can the loan or financing arrangements be renegotiated?
7. Employees. What are the current payroll obligations? How should they be managed during the wind down process? What bonuses, vacation pay [Ed. Note: and sales commissions] and accrued expenses are owed? What payroll taxes will be due? What employee benefit plans need to be cancelled or terminated? How will this affect employees on COBRA? Can you save money by switching to a Professional Employer Organization (PEO)? Are there any other forms of compensation (stock, deferred compensation or other incentives) that have not been documented or paid? What employment contracts exist and what restrictions will remain enforce? Can you or a potential buyer solicit employees? Are you treating all employees fairly and equally? How will your actions affect employees that you might want to hire again for a future venture?
8. Customers. Make a list of all current customers, past customers, and prospective customers. Which customers have outstanding receivables? Are there open orders? Should open orders be cancelled or delivered? Which customers have you collected money from but won’t be able to deliver products or services? What prepayments from customers should be refunded? How much of the receivables can be collected after the company ceases operation? Which receivables should be written off as uncollectable? At what point should you notify customers that you intend to cease operations? How long can you hold out for a bu
yer to take over a product line or business? Are there any long term agreements for services? What goodwill can be salvaged or business reputation maintained by transferring unfinished projects to another service provider?
9. Vendors. Make a list of all suppliers and contractors. Be sure to review current versions of all agreements, including any addendums or renewals. Which vendors do you owe money? What leases are there for real estate or equipment? Are there any long term contracts? Can you negotiate an earlier termination or buy-out of the contracts? Can you get the contract modifications in writing? What are the notice requirements and other obligations upon termination? How many days in advance must notice be given? Are some notice requirements sooner than others? Are there any security deposits or prepayments (e.g., insurance) that will be repaid to the company?
10. Records; Compliance. Review all corporate records, paying particular attention to obligations upon dissolution or liquidation of the company’s assets. Make sure that you have current copies of all corporate (or LLC) records including charter, bylaws, stockholder agreements (or in the case of an LLC, the Operating Agreement). Are there any security, investment or other financing documents that affect the owners’ rights or the distribution of assets? Are there any documents that assign responsibility or indemnification upon default of obligations? Are there regulatory filings or other compliance obligations? What licenses or registrations does the company have and how should they be withdrawn or terminated? Are there any environmental issues or other compliance obligations that will continue after operations cease?
Review all of the assets and liabilities carefully. Are the assets worth more or less than the company paid for them? Are there any assets with hidden value (such as websites with significant traffic or popular domain names)? We have had some clients sell domain names alone for more than $500K. Some of these assets may have more value to competitors than they do to the failed business.
After you have gathered the information above, you should be able to make a preliminary assessment as to whether the company’s net worth is positive or negative. Be sure to review the assessment with the company’s accountant, attorney and other professional advisors in order to determine when to cease operations and to plan for the orderly liquidation of assets. The professionals can help to structure and guide the wind down strategy. There are many financial and legal pitfalls for the unwary. It does not have to be time consuming or expensive, but the assessment does require a trained eye to avoid potential issues that might arise later after the assets have been liquidated and the proceeds disbursed.
The above list is just a sample of the most common items to consider before winding down a business. There are many more items that would be included on a typical due diligence checklist. The financial information and due diligence should be performed with the utmost care and accuracy to make sure valuable assets or significant liabilities are not overlooked. Are there may major items that we have failed to mention? What information did you find the most useful in winding down a business?
Roger Glovsky is a founding partner of Indigo Venture Law Offices, a business law firm based in Massachusetts, which provides legal counsel to entrepreneurs and high-tech businesses. Mr. Glovsky is also founder of LEXpertise.com, a collaboration and networking site for lawyers, and writes blogs for iLaw2.com and The Virtual Lawyer.
Part 1: How to Wind Down Your Company
Part 2: When to Shut Down Your Company
The above content is intended to serve as a general discussion of the subject matter and is provided for informational purposes only. It is not legal advice and should not be construed as such. Do not act upon this information without seeking professional advice or rely on this website or use the content as a substitute for consultation with professional advisors.