08.2015

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Articles

In most bankruptcy cases, once a decision has been made to conduct a going-concern sale of the debtor’s business under Section 363 of the Bankruptcy Code, the emphasis is on maximizing the value of the business assets in order to return the largest distribution to the creditors. Indeed, the majority of recently filed Chapter 11 cases have resulted in going-concern sales. Experienced insolvency professionals have mastered the sale process and achieved extraordinary results, often under difficult circumstances. One common characteristic of all successful sales is the provision of adequate information about the assets and the operation of the debtor’s business in order to encourage prospective bidders to make the highest and best offers. By contrast, a lack of adequate information leads to uncertainty, undervaluation, and generally a poor sale. The corollary principle to adequate disclosure of information is that the winning bidder gets what it pays for – exclusive ownership of the assets and business it bought. All others who had an opportunity to review confidential information must refrain from using it to their competitive advantage. This article describes the techniques often used to reconcile these two disparate goals: the need to provide adequate information for potential purchasers and the need to protect the winning bidder from other potential purchasers' misuse of the confidential portions of that information. Click here to continue reading.