Bovarnick 

                                                                                                                  AND ASSOCIATES LLC

     ATTORNEYS  AT LAW

 

    JUST IN CASE

    An e mail newsletter from Bovarnick & Associates                                      October 2007

 

Firm News

 

 

Bovarnick and Associates was retained by an individual who was accused of violating the federal trademark laws by purchasing and selling questionable merchandise from an overseas source.  The Firm was able to negotiate a prompt, and very fair, settlement without the need of litigation.

 

Rob was asked to serve on the Board of Directors of the Entrepreneur's Forum of Greater Philadelphia.

 

Rob is one of the course planners for the Pennsylvania Bar Institute seminar titled "The Intersection of Divorce and Bankruptcy Law", which will be presented in Philadelphia, Mechanicsburg and Pittsburg during November.

 

 

 

Partner Spotlight

 

 

Every other month the Firm will profile a strategic partner or resource that we feel our clients would benefit from. 

 

This month we have interviewed Jeff Gilmore, president/CEO of GFO Consulting, LLC

www.gfoconsulting.com) one of the regions top management and operations consulting firms.  Jeff, who has a BS in accounting from Albright College and an MBA from LaSalle University, serves on the board of directors of such organizations including Boys & Girls Clubs of Philadelphia and the Cradle of Liberty Boy Scout Council

 

Why did you start GFO Consulting?

 

"In 2002 I was looking for a job and couldn't find one with my name on it.  I fell into a couple of consulting gigs, liked what I was doing, and decided I wanted to make this my career. From that grew the concept of owning my own business.  In early 2005 I launched GFO Consulting LLC and began putting a team together. We have been growing ever since."

 

What is the company's mission?

 

"Our mission is to help small to medium size companies achieve their goals by providing hands on operational and financial management expertise."

 

What is GFO's greatest strength?

 

"Our people!  The varied experiences and wealth of knowledge about M&A, leverage buyouts, financial management, and turnarounds. Our people have been there and done that.  They are former Controllers and CFOs of larger entities who have demonstrated the ability to lend their experiences to smaller growth oriented businesses."

 

Where have you had the most success?

 

"We have the greatest impact in building out financial operations where there were none and in rebuilding or restructuring financial operations of poorly managed businesses.  We are that third leg of that three legged stool.  The other legs being sales and operations."

 

What types of companies can you have the biggest impact on?

 

"We have the most significant impact with Companies that recognize that they need and are willing to make change.  We have been referred into companies that need to make change, but it wasn't embraced.  It hinders out ability to be effective.  A client has to admit they are in pain and has to be committed to taking the necessary measures to resolve that pain."

 

What geographic area do you cover?

 

"We market ourselves in southeastern, Pennsylvania, New Jersey and Delaware.  However; we will go where needed.  In fact we worked with a client in Alaska."

 

What industries do you work best with?

 

"We work best with manufacturing, transportation, distribution and professional services."

 

What is the average experience of your fellow consultants?

 

"Our people have to have at least 15 years experience as a CFO or controller and the average experience is 25 years."

 

 

What has been your biggest success to date?

 

"A $25 million services company, were we helped turn their business around by reorganizing their operations, restructuring their balance sheet, and renegotiating contracts with their vendors and their clients."

 

What is the biggest problem companies' deal with today?

 

"Poor management!  Whether the businesses are small or large, most of their issues are caused by inadequate management.  The challenge is recognizing it and determining how to resolve the issue.  This is precisely where we come in by providing experienced hands to rebuild the business and get it to the next level."

 

 

What is the risk of joining

a private company board?

 

  AS SEEN IN ROB'S MONTHLY EVENEING BULLETIN COLUMN

 

"ASK THE ATTORNEY"

 

I have been asked to serve on the board of directors of a privately held company.  Is that a good idea?

 

Joining and serving on a board of directors can and should be a challenging, exciting and rewarding experience.  However, it requires an investment of time and attention.  Once you join, you have the legal duties of care and loyalty.  These are "fiduciary duties."  Before you join a board, you should satisfy yourself that you can handle the responsibility of serving.  Normally, directors of privately held companies have some ownership interest in the company, but that is not a requirement.  You should ask if the company has an attorney that you can turn to if there is a legal issue.  Note that the attorney for the company can also be the attorney for a director.  However, that attorney is required to advise both the company and the director of the dual representation and that there is the possibility of a conflict. 

 

Generally speaking, the board of directors is charged with managing the business and affairs of the company.  However, the actual day to day decisions are usually made by the president of the company, who reports to the board.  It is important that you remember that your duty runs to what is in the best interest of the company, even if it is contrary to your personal interest.  Each director is charged with fiduciary duties to act in the best interest of the company and its shareholders.  The duty generally falls into two categories, the duty of care and the duty of loyalty.  The duty of care essentially requires a director to be attentive and informed about all material facts regarding a decision before taking action.  The duty of loyalty generally requires that the actions of directors be motivated solely by the best interests of the company and its shareholders.

 

Generally, a director does not owe any duty to creditors of the company.  However, sometimes you may find yourself serving as a director on a company that is not financially sound.  As companies become financially unsound, they go to what is known as the "zone of insolvency."  The "zone of insolvency" makes the creditors the principal constituency injured by any fiduciary breaches that diminish the value of the company.

 

Over the years, many cases addressed the issue as to whether a creditor can raise a claim against a director when the company is in the "zone of insolvency."  A recent decision by the Delaware State Supreme Court seems to have resolved that issues.  The Court held that the creditors of a Delaware corporation that is either insolvent or in the zone of insolvency, have no right, as a matter of law, to assert direct claims against its directors.  However, when the company is insolvent, creditors do have the right to bring a  "derivative claim" (one on behalf of the company) against the directors.

 

While the case is only the law in Delaware, it may become the law in other states.  So, before you decide to join a board of directors, make sure the company is on solid financial footing.

 

As a final note, most corporations purchase directors' liability insurance covering (i) the corporation for any payment of indemnification and advances for expenses and (ii) directors if the corporation is unwilling to pay indemnification or advancement obligations or is unable to pay such obligations.  If you are asked to serve on a board of directors you should always ask if the company has this type of insurance.

 

 

I enjoy being able to share with everyone the Firm's continuous growth and development.  Whenever you get the chance, pick up the phone or send me an email and let me know how you are as well.

 

 

Sincerely,

Rob

 

 

 

 

 

Bovarnick and Associates, LLC. | Two Penn Center Plaza | 1500 J.F.K. Boulevard | Suite 1310 | Philadelphia | PA | 19102