Kodak, Hostess, MF Global, Lehman, SP Newsprint: Bankruptcy
(This report contains items about companies both in bankruptcy and not in bankruptcy. Adds Hostess, MF Global and Madoff in Updates; Circus & Eldorado and CST Industries in Watch List; Jefferson County and Enron in Briefly Noted; Advance Sheets item.)
Jan. 17 (Bloomberg) -- Eastman Kodak Co. either does or doesn't need Chapter 11 to complete a sale of intellectual property, according to who's doing the talking.
“If you buy this pre-petition, the likelihood that you get sued is pretty darn high,” said Jim Bromley a partner with Cleary Gottlieb Steen & Hamilton LLP whose firm orchestrated the process where Nortel Networks Inc. sold 6,000 patents for $4.5 billion in a bankruptcy auction that saw the price increase 500 percent.
Bromley was referring to the threat of a fraudulent transfer suit if someone buys technology to find Kodak filing bankruptcy later. Once in bankruptcy, creditors might alleged that the price was less than market value, thus making the sale a fraudulent transfer even if there was no intent to defraud creditors.
Ken Luskin, president of Intrinsic Value Asset Management Inc., points out how Kodak recently sold two divisions, in his opinion proving that buyers aren't concerned about fraudulent transfer suits.
Bromley sees virtues in a sale under auspices of bankruptcy court because “certain elements of the auction process are hard to duplicate outside” bankruptcy. Even if a buyer outside bankruptcy is willing to take on the fraudulent transfer risk, Bromley said the purchaser may negotiate for indemnities or holdbacks to stand behind Kodak's assurances that it owns what it's selling.
Bromley said “a secured indemnity is a fraudulent conveyance waiting to happen” and a holdback “is a similar problem.”
Luskin, whose clients own 6 million Kodak shares, believes Kodak can avoid bankruptcy because it's close to a licensing agreement with Research in Motion Ltd. to bring in about $500 million. Luskin admitted that if Kodak does nothing, “money would get tight” in four or five months.
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