mehdi,
as i have commented on earlier, and which this article supports,
"the buyer takes the bad with the good in a debtor corporation stock purchase transaction. For example, the buyer will assume any liabilities of the debtor corporation, including any debtor corporation contingent liabilities."
so, in order for lampert to obtain the nols under a stock purchase scenario (the benefits of which would stretch over a number of years), he would have to take on the immediate creditor liabilities. i would think that after lampert has purchased substantially all of the go forward assets of shc (free of liens and other obligation) that clean slate he just got would be put at risk via an after the fact stock purchase deal.
am sure that's why his lawyers are being paid well over $1k/hour and we are out here picking shit with the chickens, but it seems like it would not be a good trade for him.
as to whether or not the tax attributes are with lampert yet, once the closing occurs it seems they will be. would you expect the closing to drag out until lampert gets a tax opinion and ruling? language below (depending on the por effective date) suggests lampert's decision about the nols could drag out until december 2019.
this language is from section 2.12 of the APA:
Buyer may, at any time on or before the earlier of (i) 15 days prior to the effective date of the Bankruptcy Plan and (ii) December 1, 2019, elect, by providing to Sellers written notice of its election, to treat one or more of the transactions (each, a “Designated Sale Transaction”) set forth in this Agreement as not qualifying as a Tax Reorganization, which election shall be effective unless Designated Tax Advisor cannot provide a Tax Opinion that such Designated Sale Transaction can be completed in a manner that would not be treated as a “reorganization” within the meaning ofsection 368 of the Code; provided, however, that in connection with any such Buyer election to treat all the transactions described in this Article II as Designated Sale Transactions
(resulting in no transfer of Sellers’ Tax attributes to Buyer), the Parties shall, if requested by Sellers in writing, identify a business of the Sellers that would become part of the Excluded Assets and
consider in good faith any other changes to the structure of the transaction that are reasonable and necessary as a commercial, bankruptcy law and other legal matter to achieve that result
AI
