Leveraging Section 363 in Mergers and Acquisitions

Analyzing the Evolving Risks and Benefits of Buying and Selling Distressed Assets

Recording of a 90-minute CLE webinar with Q&A

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Conducted on Wednesday, December 2, 2009

Recorded event now available

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Course Materials

This CLE seminar will discuss strategies for counsel involved in Section 363 sales and acquisitions, including a thorough briefing of the evolving risks and benefits and best practices for executing a distressed company M&A deal.


Acquisitions of distressed businesses inside and outside of bankruptcy reached record levels this year and continue to soar as strategic buyers take advantage of opportunities. However, the new investment opportunities present a myriad of legal and financial considerations.

Section 363 allows for a more expeditious and efficient sale than a Chapter 11 plan. Acquisitions that occur under section 363 or through Chapter 11 pose additional legal hurdles for both buyers and sellers.

Counsel for the buyer and seller must understand the opportunities and challenges in distressed M&A transactions to strategically plan in negotiating a deal that maximizes the value of the troubled business to their clients’ respective benefits.

Listen as our authoritative panel reviews the Section 363 bankruptcy sale process, examines the associated risks and opportunities, and offers best practices for buyers and secured creditors involved in Section 363 sales.



  1. Asset sales
    1. Standards for approval under Section 363
    2. Sale procedures
  2. Risks
    1. Lack of standard contractual protections
    2. Unwanted liabilities
  3. Opportunities
    1. In bankruptcy, leave unwanted liabilities behind
    2. Expeditious sale of assets, clear of liens and encumbrances
    3. Assumption of contracts with anti-assignment provisions
  4. Best practices
    1. Due diligence
    2. Third party valuation of the assets
    3. Releases/waivers


The panel will review these and other key questions:

  • What risks do buyers and sellers face in 363 sales? What steps can the parties take to minimize those risks?
  • What are some of the potential legal pitfalls in negotiating distressed M&A deals?
  • What are the best practices for counsel on both sides of the deal to tailor terms in distressed transactions?


Robert L. Eisenbach, III
Robert L. Eisenbach, III

Of Counsel
Cooley Godward Kronish

He focuses his practice on bankruptcy and restructuring matters. He represents unsecured creditors' committees in...  |  Read More

Jennifer Fonner DiNucci
Jennifer Fonner DiNucci

Cooley Godward Kronish

She focuses primarily on mergers and acquisitions, representing public and private companies from various industries as...  |  Read More

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