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§ 363 Sales - Representing the Buyer - Part 3
Part 3 - In 363 acquisitions, strategic buyers must decide whether to become the stalking horse bidder. This role offers advantages such as setting the baseline price, negotiating contract terms, and gaining strategic relationships, but also involves significant time and expense with no guarantee of winning the auction. Stalking horses benefit from deal protections like breakup fees (2-5% of the purchase price) and expense reimbursement fees, capped based on due diligence intensity. However, they risk overbidding and facing late, non-conforming bids. Courts scrutinize deal protections to ensure fair competition. The next series will delve into bidding procedures and the auction process.
Duration:
15 minutes 28 seconds
Samuel S. Kohn is a partner in the New York office of Dorsey & Whitney LLP and practices in the
area of business reorganizations, including complex chapter 11 cases and out-of-court restructurings.
He represents large corporate debtors, creditors’ committees, secured lenders, distressed-asset-acquirers,
investment funds and banks. His experience spans a broad range of industries, including airlines, mu-
nicipalities, health care, retail, real estate, food, financial services, energy, telecommunications, enter-
tainment, manufacturing and shipping. Mr. Kohn has been involved in virtually every major municipal
restructuring in recent memory, both in and out of court, including the chapter 9 cases of Detroit and
Jefferson County, Ala. In addition, he has represented major creditors in out-of-court restructurings of
municipalities, including municipal debt issued by Harrisburg, Pa., Scranton, Pa., Atlantic City, N.J.,
and Hartford, Conn. Mr. Kohn has authored numerous articles and is a frequent panelist on issues relat-
ing to municipal restructurings. Prior to becoming a lawyer, he was a Certified Public Accountant in the
State of New York and founded and managed his own accounting firm. Mr. Kohn received his B.A. from
City University of New York, Queens College and his J.D. cum laude from Brooklyn Law School.
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