PLEASE TAKE NOTICE that, on March 8, 2023 (the “Petition Date”), the above-captioned debtors and debtors in possession (collectively, the “Debtors”) each filed a voluntary petition for relief, electing to proceed under Subchapter V of chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”) in the United States Bankruptcy Court for the District of Delaware (the “Court”), commencing these chapter 11 cases (the “Chapter 11 Cases”).
PLEASE TAKE FURTHER NOTICE that, on March 9, 2023, the Debtors filed a motion [D.I. 10] (the “Bidding Procedures Motion”) seeking entry of (a) an order (the “Bidding Procedures Order”), (i) authorizing and approving bidding procedures (the “Bidding Procedures”)2 in connection with one or more sales or dispositions (collectively, the “Sale”) of all or substantially all of the Debtors’ assets (the “Assets”), (ii) authorizing the Debtors to enter into and perform under an asset purchase agreement (the “Stalking Horse Agreement”) between the Debtors and the Stalking Horse Bidder, subject to the solicitation of higher or otherwise better offers for the Debtors’ Assets, (iii) establishing certain dates and deadlines for the sale process, including scheduling an auction of the Assets (the “Auction”), if applicable, in accordance with the Bidding Procedures, and the hearing with respect to the approval of the Sale (the “Sale Hearing”), (iv) approving the form and manner of notice of the Auction, if any, the Sale and the Sale Hearing, (v) approving procedures for the assumption and assignment of certain executory contracts and unexpired leases in connection with the Sale and approving the form and manner of notice thereof, and (vi) granting related relief; and (b) one or more orders (each, a “Sale Order”), as applicable, authorizing and approving: (i) the Sale of the Assets to the Stalking Horse Bidder or other Successful Bidder(s), as applicable (the “Purchaser”), free and clear of all liens, claims, interests, and encumbrances to the extent set forth in the Stalking Horse Agreement or asset purchase agreement(s) with the otherwise Successful Bidder(s), as applicable (the “Asset Purchase Agreement”), (ii) the assumption and assignment of the Assigned Contracts as set forth in the Asset Purchase Agreement, and (iii) granting related relief.
PLEASE TAKE FURTHER NOTICE that, on May 24, 2023, the Court entered the Bidding Procedures Order [D.I. 61], approving, among other things, the Bidding Procedures, which establish key dates and times relating to the Sale and the Auction. All interested bidders should carefully read the Bidding Procedures Order and the Bidding Procedures in their entirety.3
The Bidding Procedures set forth in detail the requirements for submitting Qualified Bids, and any person interested in making an offer to purchase the Assets must comply strictly with the Bidding Procedures. Only Qualified Bids that are submitted in accordance with the Bidding Procedures will be considered by the Debtors.
Objections to the Sale or conduct of the Auction, if any, must (i) be in writing and specify the nature of such objection, (ii) comply with the Bankruptcy Code, the Bankruptcy Rules, the Local Rules and all orders of the Court entered in the Chapter 11 Cases, (iii) be filed with the Court by the Sale Objection Deadline or Adequate Assurance Objection Deadline, as applicable, and (iv) be served upon the following parties (collectively, the “Objection Notice Parties”): (a) proposed counsel to the Debtors, Pashman Stein Walder Hayden, P.C., 1007 North Orange Street, 4th Floor, Suite #183, Wilmington, Delaware, 19801-1242, Attn: Joseph C. Barsalona II ([email protected]) and Richard C. Solow ([email protected]); (b) the Subchapter V Trustee, Brown McGarry Nimeroff LLC, 919 N. Market Street, Suite 420, Wilmington, Delaware, 19801, Attn: Jami Nimeroff ([email protected]); (c) counsel to Settle, Bryan Cave Leighton Paisner LLP, One Wells Fargo Center, 301 S. College Street, Suite 2150, Charlotte, NC, 28202, Attn: Jarret P. Hitchings ([email protected]); (d) counsel to the Stalking Horse Bidder, VC2 Law, 8985 South Eastern Avenue, Suite 100, Las Vegas, Nevada 89123, Attn: Michael Van ([email protected]); (e) the Office of the United States Trustee for the District of Delaware (the “U.S. Trustee”), 844 N. King Street, Wilmington, Delaware 19801, Attn: Jane M. Leamy ([email protected]); and (f) any Successful Bidders.
ANY PARTY WHO FAILS TO MAKE A TIMELY SALE OBJECTION ON OR BEFORE THE SALE OBJECTION DEADLINE OR, SOLELY WITH RESPECT TO OBJECTIONS RELATED TO THE IDENTITY OF THE SUCCESSFUL BIDDER(S) (OTHER THAN THE STALKING HORSE BIDDER) OR ADEQUATE ASSURANCE OF FUTURE PERFORMANCE PROVIDED BY THE SUCCESSFUL BIDDER(S) OTHER THAN THE STALKING HORSE BIDDER, ADEQUATE ASSURANCE OBJECTION DEADLINE, AS APPLICABLE, IN ACCORDANCE WITH THE BIDDING PROCEDURES ORDER SHALL BE FOREVER BARRED FROM ASSERTING ANY SALE OBJECTION, INCLUDING WITH RESPECT TO THE TRANSFER OF THE ASSETS FREE AND CLEAR OF ALL LIENS, CLAIMS, ENCUMBRANCES AND OTHER INTERESTS.
The Sale will be free and clear of, among other things, any claim arising from any conduct of the Debtors prior to the closing of the Sale, whether known or unknown, whether due or to become due, whether accrued, absolute, contingent or otherwise, so long as such claim arises out of or relates to events occurring prior to the closing of the Sale. Accordingly, as a result of the Sale, the Purchaser will not be a successor to any of the Debtors by reason of any theory of law or equity, and the Purchaser will have no liability, except as expressly provided in the Purchaser’s Asset Purchase Agreement, for any liens, claims, encumbrances and other interests against or in any of the Debtors under any theory of law, including successor liability theories.
Copies of the Bidding Procedures Motion, the Bidding Procedures, the Bidding Procedures Order, the Stalking Horse Agreement and all other documents filed with the Court can be requested by emailing the Debtors’ proposed counsel Joseph C. Barsalona II ([email protected]) and Richard C. Solow ([email protected]).
FAILURE TO ABIDE BY THE BIDDING PROCEDURES, THE BIDDING PROCEDURES ORDER, OR ANY OTHER ORDER OF THE COURT IN THE CHAPTER 11 CASES MAY RESULT IN THE REJECTION OF YOUR BID.
Dated: March 27, 2023
PASHMAN STEIN WALDER
/s/ Joseph C. Barsalona II
Joseph C. Barsalona II (No. 6102)
1007 North Orange Street, 4th Floor, Suite 183
Wilmington, DE 19801-1242
Telephone: (302) 592-6496
Email: [email protected]
Richard C. Solow (admitted pro hac vice)
The Woolworth Building
233 Broadway, Suite 820
New York, New York 10279
Email: [email protected]
Proposed Counsel to the Debtors and
Debtors in Possession
DailyDAC™ is the oldest, most trusted, and most widely used provider of public notices of asset sales and case commencements, and other important notices involving companies in financial distress in the United States and Canada. DailyDAC™ public notices are used by bankruptcy trustees, chapter 11 debtors in possession, federal and state court receivers, and secured parties disposing of their collateral under Article 9 of the Uniform Commercial Code or other state law trust (and their respective auction firms, law firms, and other agents). Learn more.
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