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Attention: Bill Russell, Chairman
Dear KIT digital Board of Directors,
On November 23, 2012, we sent you a detailed letter describing our
disappointment in the performance of KIT digital Inc.'s
current management team in both administering the business and
capitalizing on strategic opportunities that could have generated significant
value for the Company's shareholders (the "Initial Letter"). In our Initial
Letter, we also outlined our own turnaround plan for KITD and urged you to
immediately engage with us regarding a provisional offer to acquire the
Company.
Since sending the Initial Letter additional information has come to our
attention that paints an even more troubling state of affairs within the
Company than we originally believed. We believe management is confused at the
current crossroads and that the Company is severely limited in its options—a
situation that will likely deteriorate with time.
Your demonstrated lack of urgency regarding alternatives to create value for
shareholders is particularly unacceptable given that:
o KITD has a very low cash balance (less than $7 million of unrestricted
cash available to fund operating activities) and we believe the Company is
operating at a significant cash burn in the near-term — providing an
extremely short runway to solve its manifold issues;
o The Company requires additional capital but the recent, dramatic downward
share price movement and lack of audited financials will make it very
difficult to raise additional financing at anything but terribly dilutive
terms–in fact we believe the Company failed in a desperate attempt
to close a financing even prior to its announcement that it was restating
historical financials and delaying third quarter results;
o The Company appears to have misrepresented the reason for the delayed
release of its 10-Q for the period ending September 30, 2012, and
inappropriately utilized the filing extension granted to companies due to
Hurricane Sandy in an attempt to obfuscate the underlying liquidity issues
and accounting issues afflicting the Company;
o KITD is in material, technical default under its senior secured note
issued to Western Technology Investment ("WTI") due to the Company's
restatement of its historical financials, enabling WTI to pursue all
rights available to it under the secured note agreement to remedy this
default—including foreclosure on all of KITD's assets and intellectual
property globally;
o Based on the current price of KITD common stock, the terms of the Share
Purchase Agreement entered into between KITD and Hyro Limited ("Hyro") on
April 21, 2012 obligate the Company to issue nearly twenty (20) million
new shares to Hyro shareholders within the next 30 days; and
o KITD's current share price and its lack of audited financials puts the
Company at serious risk of running afoul of the NASDAQ continued listing
requirements.
We have also received numerous unsolicited accounts of announcements and
comments made by KITD management last week to employees, vendors and customers
that call into question management's grasp of the Company's challenges or
their ability to navigate the Company out of its dire straits. We believe
these communications included claims that (a) acquisition offers received by
the Company in the past have been too low to be considered; (b) the Company
will pursue a standalone path and will not entertain future acquisition
offers; (c) the Company has not and will not consider filing for bankruptcy
protection; and (d) the Company has enough cash to weather this period and
will be breakeven by January or February. Although we appreciate management's
desire to calm the Company's various constituencies, reckless statements like
these undermine credibility, encourage complacency and prevent the Company
from successfully addressing its myriad challenges.
More importantly, we are aware of numerous strategic and financial parties
interested in the Company that have been ignored, rebuffed and stonewalled in
recent months and weeks by the Company and its financial advisors, or have
been paralyzed for months by standstill provisions included in the form
confidentiality agreement propagated by the Company as a requisite for
entering into any acquisition dialogue.
If any of the foregoing conclusions are based on incorrect information, please
openly correct our understanding.
We fear that KITD's current structural, commercial and liquidity challenges
will worsen and compound—leaving the Company and its shareholders with
limited, if any, options to preserve or generate value for shareholders. As
such, we urge you to take immediate action to the benefit of shareholders and:
o Execute on the operational turnaround plan articulated in our Initial
Letter;
o Clearly explain your balance sheet fortification strategy to KITD
shareholders, specifically how you intend to avoid a foreclosure by WTI or
a similar action taken by a replacement, "last resort" lender;
o Conduct an open and transparent auction of the business (without
discriminating against any prospective bidders) with a reasonable minimum
bid price; and
o Release any party that is currently subject to a standstill provision from
any restrictions on participating within or pursuing a transaction to
acquire the Company.
With respect to our provisional buy-out offer from the Initial Letter, neither
you nor your advisors have engaged with us directly. However, several days
after you received our Initial Letter, we were contacted by an executive of
JEC Capital (the New York hedge fund that currently controls the Company and
for which current KITD CEO Peter Heiland serves as Managing Director), who
stated that you were not taking our offer seriously because you were unsure of
our financial backing, and encouraged us to submit an offer to the board of
KITD using a "customary offer letter format". While we believe this is
a delaying tactic—since we used a standard, conditional offer structure and
you are aware of at least one of our large private equity partners—we have
nevertheless complied with this request. Earlier today, December 5, 2012, we
separately submitted a revised, non-binding offer letter in a customary format
to the Company's board of directors, as well as a draft confidentiality
agreement that we would be prepared to sign in order to pursue a potential
transaction. As part of this documentation, we said we would expect to be able
to reach a definitive and binding acquisition agreement within thirty (30)
days of being granted due diligence access.
Given the current price of KITD stock, compounded by the Company's strategic
drift and worsening liquidity and capital structure issues, we have lowered
our indicative offer to acquire the Company to a range of $1.35 -$1.70 per
share—representing, at the midpoint of the range, a 112% premium to the $0.72
closing price of the Company's shares on Tuesday, December 4, 2012. Our offer
is subject to due diligence, your release of certain parties from standstill
agreements, and a mutually acceptable definitive agreement.
We believe that time is of the essence and are prepared to immediately engage
with the Company and its legal and financial advisors regarding this
transaction. In the absence of a response to this letter by 5pm ET on
Wednesday, December 12, 2012 that generates demonstrable progress towards a
transaction, we will evaluate other options available to us—including, but not
limited, to an offer extended directly to shareholders and/or alternative
entry points into the Company's capital structure.
We look forward to your timely response.
Respectfully,
Kaleil Isaza Tuzman
On behalf of KIT Capital, Ltd.
Contact: Jonathan Cutler
JCUTLER MEDIA GROUP
JC@jcutlermedia.com
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