For companies in financial distress, § 363 of the U.S. Bankruptcy Code is often a preferred tool to effect a sale of a company’s assets or equity interests. Under § 363, a debtor may sell or lease its property outside the ordinary course of business, free and clear of liens, claims and encumbrances. See 11 U.S.C. 363(b),(f). Section 363 sales are often time-sensitive due to deteriorating asset values, but there is no bankruptcy exemption from compliance with the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR). Accordingly, developing a strategy to address the requirements of HSR is critically important in any qualifying transaction.
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