This is a good article. Brian Farrell and His crew Jason Rubin and Jason Kay killed this company. Farrell was a lame duck CEO for a long time.
U.S. Bankruptcy Judge Mary F. Walrath at a hearing today in Wilmington, Delaware, sided with creditors that said the proposed sale process didn’t give potential buyers enough time. Walrath found the video-game maker’s efforts to market the company for sale before bankruptcy weren’t sufficient for her to allow the aggressive sale process.
“I have problems concluding that the pre-petition sale process was fulsome,” Walrath told lawyers at the hearing, noting THQ “did not even put out to the public that it was for sale” until potential buyers signed non-disclosure agreements
I guess my “hunch” about Jason Rubin and his team are not alone.
From Court Docs
D. The Debtors Have Failed to DiscloseInformation in Violation of the Local Rules
Via Facsimile & Federal Express & Email
Acting United States Trustee
Office of the United States Trustee
Newark Center, Suite 2100
Newark, NJ 07102
Re: REQUEST FOR APPOINTMENT OF
OFFICIAL COMMITTEE OF EQUITY INTEREST HOLDERS
In re: THQ Inc, et. al. , 12-13398 through 12-13402
Dear Ms. DeAngelis:
On behalf of Ad hoc committee (the “Shareholder”), we hereby request that you appoint an official committee of equity interest holders (an “Equity Committee”) of THQ Inc et.al (“THQ” collectively with its affiliated debtors and debtors in possession the “Debtors”). The Shareholder currently holds about 400,000 shares which represents in excess of five percent of the issued and outstanding stock of THQ (6.86 Million), is willing to serve on the Equity Committee should one be appointed, and believes that other shareholders have an interest in serving on the Committee as well.
The Debtors each filed separate, voluntary petitions for relief pursuant to chapter 11, of
title 11, of the United States Code (the “Bankruptcy Code”) on December 19th, 2012. According
to the petitions, the Debtors collectively list approximately $248 million liabilities and $204 million
in assets. However, a review of the Debtors’ public filings available through the Securities and Exchange Commission (“SEC”) indicates equity is “in the money,” Attached hereto are copies of the Debtors’ most recent consolidated lOK and lOQ as filed with the SEC. In addition, attached are the most recent 8Ks filed by the Debtors with the SEC. A cursory review of these documents will demonstrate that equity does exist in these Debtors and circumstances indicate that such equity will not be adequately represented in these chapter 11 cases.
Office of the United States Trustee
January 3, 2012
These cases are at a critical stage and time is of the essence. We believe all of the criteria
for appointment of an Equity Committee under section 1102(a)(1) of the Bankruptcy Code are
(a) the case is large and complex;
(b) the stock is widely held and actively traded;
(c) the interests of shareholders are not otherwise adequately represented;
(d) the Debtors are not hopelessly insolvent, such that the Shareholders appear
to have a real economic interest at stake; and
(e) the timing of the request is appropriate.
In re Johns-Manville Corp.. 68 B.R. 155 (S.D.N.Y. 1986); In re Kalvar Microfilm. 195 B.R. 599 (Bankr. D.Del. 1996); In re Wang Laboratories. Inc.. 149 B.R. 1 (Bankr. D.Mass. 1992) (appointing equity committee over objections of United States Trustee and official committee of unsecured creditors even while debtor had negative book equity of several hundred million
dollars); In re Beker Indus. Corp.. 55 B.R. 945 (Bankr. S.D.N.Y. 1995) (equity committee
appointed); In re Evans Products Co.. 58 B.R. 572 (S.D. Fla. 1985); In re Emons Indus.. Inc.. 50
B.R. 692 (Bankr. S.D.N.Y. 1985); In re Exide Technologies. Case No. 02-11125 (Bankr, D.Del.
2002) (appointing equity committee over objections of debtor and official committee of
The legal requirements for appointment of an official equity committee are present.
These cases are large and complex. In their petitions, the Debtors list approximately $248
million in liabilities and approximately $204 million in assets. In addition, the Debtors own and
operate four studios in the United States and owns equities in 2 Canada studios, and other overseas studios. The Debtors are seeking to restructure approximately $100 million of notes and other liabilities as stated in 8k. The vast size and complexity of these cases is not in question.
The stock is widely held and actively traded. As of Wednesday, January 3, 2012, shares
of THQ were actively trading for approximately 22 cents, down about 7 cents from the prior day’s trading.
Office of the United States Trustee
January 3, 2010
This request comes on a timely basis. The Debtors are in the process of finalizing a “pre -negotiated” Plan of an asset sale, The Plan calls for an approximately $60 million asset sale to Space Investors a subsidiary of Clear Lake Capital. We do not believe the sale was done in good faith and believe that this has been planned by THQ board of directors as a tactical move to take the company private in the expense of shareholders. Centerview was hired by THQ to handle the asset sale. Shareholders believe that there is a major conflict between THQ executive management Jason Rubin and Jason Kay (THQ executives), and Skip Paul a principal at Centerview who have made millions of dollars together on a private equity deal concerning the sale of accompany named “Flexor”. One or Both of THQ executives stand to benefit of sale to Space Investors. We also believe THQ NOL of $932 million dollars stated in company 10Q have value. UbiSoft (video game company) has publicly expressed interest in THQ assets. The appointment of an Equity Committee would help to expedite the approval and eventual consummation of the Plan.
The shareholders (other than the members of THQ management) are one of the only constituencies that have not had ample time to review the terms of the Plan, let alone participate in its formulation. Therefore, the timing is perfect to appoint an Equity Committee as it would give such a committee sufficient time to review the proposed Plan and provide the Debtors and other parties-in-interest with comments to the Plan. This is especially important given that debtors, the various ad hoc committees of noteholders and other parties-in-interest have been fully and adequately represented in this process for the past 2 weeks.
Moreover, the Plan on its face demonstrates that the Debtors are not hopelessly insolvent, and in fact, supports the proposition that equity is in the money as the current shareholders are to maintain a stake in the Debtors pursuant to the Plan. We believe there may be additional factors justifying the appointment of an Equity Committee as well.
In sum, the Shareholder believes it would be grossly unjust to permit the Debtors to prosecute the pre-negotiated plan without the input of the minority shareholders. For the foregoing reasons, we respectfully request that you appoint an Equity Committee at your earliest possible opportunity.
Creditors Blast Bankrupt Game Maker THQ’s Sale Plan
Law360, Wilmington (January 02, 2013, 10:24 PM ET) — Creditors of video game producer THQ Inc. asked a Delaware bankruptcy judge Wednesday to reject its bid procedures, arguing that the proposed terms for the Chapter 11 auction were crafted not to maximize value but to ensure a sale to stalking-horse bidder Clearlake Capital Group LP.
California-based THQ entered court protection Dec. 19 with a prepackaged plan envisioning a $60 million sale to private equity firm Clearlake, but an ad hoc committee of the company’s noteholders claims the terms of the proposed Section 363 sale will serve to chill competitive bidding rather than promote it.
Bid procedures should promote a robust auction, the committee said, but those proposed by the debtor — including an “unjustifiably accelerated sale timeline” calling for a Jan. 9 auction, Jan. 10 sale hearing and a closing by Jan. 15 — would have the opposite effect and “appear to have been designed specifically to thwart any potential bidders from stepping forward to compete with Clearlake’s bid.”
Representing creditors holding 41 percent of the $100 million in senior notes that make up the lion’s share of THQ’s debt, the committee holds that a title-by-title sale of the company’s video game lines would provide a greater return to investors.
The committee blasted a sale provision that would allow THQ to reject any offer that does not include substantially all of the company’s assets, “notwithstanding that there is reason to believe that more value may be generated by a sale of the debtors’ assets on a ‘piecemeal’ basis.”
At a first-day hearing, THQ counsel Jeffrey C. Krause said the hurried sales process was made necessary by the terms of its debtor-in-possession financing package as well as the fact that the company would run out of cash by Jan. 15 even with the added financing.
The time line, while not ideal, offered the only alternative to a complete shutdown and breakup of the company, Krause said, and it would be “better to sell at these terms than be forced to liquidate.”
U.S. Trustee Roberta A. DeAngelis also took issue with the proposed bid procedures, filing a separate objection Wednesday that voiced additional concerns regarding the auction conditions.
Besides echoing the committee’s concerns about the expedited schedule, the trustee said the provision requiring the first bid to top Clearlake’s offer by at least $2.75 million would further restrict competition and should be removed.
“Such a sizeable initial overbid may chill bidding by discouraging potential bidders from participating in the proposed auction,” the trustee said.
The procedures also violate the local rule requiring that auctions be conducted openly with all creditors permitted to attend, the trustee said, claiming they seek to limit attendance to representatives of the qualified bidders, debtors, DIP lenders and any statutorily appointed committees.
“There does not appear to be justification for waiver of this requirement in this case,” the trustee said.
A hearing on the bid procedures and the final DIP order will be held Friday before U.S. Bankruptcy Judge Mary F. Walrath.
THQ, which designs and publishes video games for home consoles, computers and other platforms, sought court protection along with its four U.S. subsidiaries Dec. 19 citing a prolonged cash crunch made worse Nov. 7 when lender Wells Fargo Capital Finance LLC declared an event of default, which Krause said “created much bigger indirect issues.”
The company’s product line includes wholly owned franchises “Saints Row” and “Company of Heroes” and its World Wrestling Entertainment games produced under a licensing agreement, and it currently is developing a game based on “South Park” set to be released in 2013, as well as a new title from the creator of the successful “Assassin’s Creed” series.
The ad hoc committee is represented by Paul N. Silverstein, Jonathan I. Levine and Jeremy B. Reckmeyer of Andrews Kurth LLP.
THQ is represented by Michael R. Nestor, M. Blake Cleary and Jaime Luton Chapman of Young Conaway Stargatt & Taylor LLP and Jeffrey Krause, Jonathan Layne, Ruth Fisher, Oscar Garza and Cromwell Montgomery of Gibson Dunn & Crutcher LLP.
The case is In re: THQ Inc., case number 1:12-bk-13398, in the U.S. Bankruptcy Court for the District of Delaware.
–Editing by Richard McVay.
Bond holders this time around hold the cards in their favor. Stock is crushed and decimated by the moves that BOD and Farrell made in the past.
It’s unreal how Farrell still has a job. In past Shareholder meetings he said he would take 100% responsibility and looks forward to the challenge ahead.
He is either a shyster or is completely incompetent. I am going with the latter. The Board of Director ( James Whimes , Jeffery Griffiths, Henry Denero,Brian Dougherty and Lawerence Burstein of THQ have clearly have broken their fiduciary responsibilites by keeping Brian Farrell on as CEO when THQ stock is at an all time low. The company has come down from $2.6 billion dollar market cap to an $8 million dollar market cap. Guess when Brian Farrell, Jason Kay, and Jason Rubin are looking to raise money ? yes, when the stock is at an all time low price in THQ history.
With zero confidence in management has the best interest of shareholders why should I trust their decision to go with Centerview? I know that Jason Kay and Jason Rubin were partners at one time with Charles Paul at Centerview. Since Jason and Jason don’t own a single share in THQ and management overall incompetence I am assuming they are making a deal that is best for Management and not shareholders.
The company is currently looking to raise money at the worse moment in THQ history with the stock price at a historic low. Charles Paul sat on the board of directors at 3do Inc., another company that I lost money on and is now defunct. Trip Hawkins said the ultimate demise of the company was the unfavorable financing they entered into, it is a common term referred to as “Death Spiral debt.” JasonRubin said he came across THQ when he was looking for his next venture. Maybe THQ is it, but under a newly restructured company without pesky shareholders.
As the largest individual shareholder in THQ I am very concerned about the future of our investment. I hope that all shareholders stay vigilant and protect their investment because I strongly don’t believe management will.
THQ Dilution of shareholders was announced. Details still have not been released but we do know dilution will happen. Why go with one investor exclusively ? Didn’t they want to shop for the very best deal for shareholders and the company? I think most investors new that Brian Farrell and Jason Rubin would dilute stock when Jason came on board. If you go 2 minutes into this video that was made in June of 2012 Jason talks about new monies that come into the company, but it was not clear because in July during an interview he says that THQ is financially strong. Question with the lack of performance of Jason Rubin, Jason Kay and Brian Farrell will their options and compensation be adjusted ?
Management and BOD
You decide if they have been fulfilling their fiduciary responsibility. If managment does not buy when the maket cap is less than 30 million why should anyone? If management gave the percepetion and wrote the below when the stock was much higher and than changed the rules when it is much lower, what does that say about management and the BOD?
On May 13, 2008, the Board adopted ownership guidelines for non-employee director and Chief Executive Officer stock ownership. The guidelines provide that each non-employee director must own an amount of the Company’s common stock equal to at least ten times (10x) the director’s annual retainer and the Company’s Chief Executive Officer must own an amount of the Company’s common stock equal to at least five times (5x) his or her annual salary. Directors have until May 13, 2013*** to meet these ownership guidelines and Mr. Farrell, our Chief Executive Officer, has until May 13, 2012*** to meet such guidelines. Satisfaction of the ownership guidelines will be disclosed annually in the Company’s proxy statement. New directors will have five years from the time they are named to a qualifying position to meet the ownership guidelines and a new Chief Executive Officer will have four years from the time he or she is named in such position to meet the ownership guidelines.
*** On January 31, 2012, the Board suspended the ownership guidelines. The Board believes that due to the recent stock price performance of the Company’s common stock, it would be unduly burdensome to require the non-employee directors and the Chief Executive Officer of the Company to purchase enough shares of the Company to satisfy the guidelines.
Is the BOD doing their job?????
OVERVIEW – THE ROLE OF THE BOARD OF DIRECTORS
It is the paramount duty of our Board to oversee management in the long-term interests of THQ and our stockholders. To satisfy that duty, the Board takes an active role in THQ’s affairs and serves as the ultimate decision-making body of THQ, except for those matters reserved to or shared with the stockholders.
The Board’s responsibilities include:
• Reviewing the performance of our Chief Executive Officer and other senior executives in achieving corporate goals and objectives;
• Hiring the Company’s Chief Executive Officer and determining the compensation of the Company’s Chief Executive Officer and other senior executive officers, as well as implementing the Board approved CEO succession plan;
• Reviewing and approving our major financial objectives and strategic operating plans, business risks and actions; and
• Overseeing the processes for maintaining our integrity with regard to our financial statements and other public disclosures, and compliance with law and ethics.
In fulfilling these responsibilities, directors bring to THQ a wide range of experience, knowledge and judgment. These varied skills mean that the Board has the ability to effectively monitor the policies and decisions of THQ’s management, including the execution of THQ’s strategies.