Attached files
file | filename |
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8-K - FORM 8-K - MiddleBrook Pharmaceuticals, Inc. | c01315e8vk.htm |
EX-2.1 - EXHIBIT 2.1 - MiddleBrook Pharmaceuticals, Inc. | c01315exv2w1.htm |
EX-99.1 - EXHIBIT 99.1 - MiddleBrook Pharmaceuticals, Inc. | c01315exv99w1.htm |
Exhibit 99.2
UNITED STATES BANKRUPTCY COURT
DISTRICT OF DELAWARE
DISTRICT OF DELAWARE
In re:
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) | Chapter 11 | ||||
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MIDDLEBROOK PHARMACEUTICALS, INC.,1
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) | Case No. 10-11485 (MWF) | ||||
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Debtor.
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) |
INTERIM ORDER ESTABLISHING NOTIFICATION AND HEARING
PROCEDURES FOR TRANSFERS OF EQUITY SECURITIES
PROCEDURES FOR TRANSFERS OF EQUITY SECURITIES
Upon the Motion for Interim and Final Order Pursuant to Sections 105, 362, and 541 of the
Bankruptcy Code and Bankruptcy Rule 3001 Establishing Notification and Hearing Procedures for
Trading in Equity Securities (the Motion), filed by MiddleBrook Pharmaceuticals, Inc., the
above-captioned debtor and debtor in possession, (the Debtor), seeking, among other things, an
order, pursuant to Sections 105(a), 362, and 541 of the Bankruptcy Code, (i) establishing notice
and waiting periods to govern transfers of MiddleBrook Stock and procedures for objecting to such
transfers in certain circumstances (the Securities Trading Procedures) and (i) determining that
any transfer of a beneficial interest in MiddleBrook Stock (as defined herein) in violation of the
Securities Trading Procedures is void ab initio; and the Court having jurisdiction to consider the
Motion and the relief requested therein in accordance with 28 U.S.C. §§ 157 and 1334; and
consideration of the Motion and the relief requested therein being a core proceeding pursuant to 28
U.S.C. § 157(b); and venue being proper before this Court pursuant to 28 U.S.C. §§ 1408 and 1409;
and no official unsecured creditors committee having been appointed, and due and proper notice of
the Motion having been provided; and upon the Declaration of David Becker, the Debtors Executive
Vice
1 | The last four digits of the Debtors taxpayer
identification number are 8264. The Debtors mailing address is 7 Village
Circle, Suite 100, Westlake, Texas 76262. |
President, Chief Financial Officer, and Acting President and Chief Executive Officer of
MiddleBrook Pharmaceuticals, Inc., in Support of Chapter 11 Petition and First Day Motions; and the
Court having determined that the relief sought in the Motion is in the best interests of the
Debtor, its estate and its stakeholders, and all parties in interest, and that the legal and
factual bases set forth in the Motion establish just cause for the relief granted herein; and after
due deliberation and sufficient cause appearing therefor,
THE COURT HEREBY FINDS THAT:
1. The Debtors net operating loss (NOL) carryforwards are property of the Debtors estate
and are protected by the automatic stay prescribed in Section 362 of the Bankruptcy Code.
2. Unrestricted trading of MiddleBrook Stock before the Debtors emergence from Chapter 11
could severely limit the Debtors ability, in connection with its eventual emergence from
bankruptcy, to take future deductions and losses attributable to its NOLs and to utilize its other
tax attributes for U.S. federal and state income tax purposes.
3. The Securities Trading Procedures and restrictions set forth herein are necessary and
proper to preserve the Debtors ability to take future deductions and losses attributable to its
NOLs and to use its other tax assets and are, therefore, in the best interests of the Debtor, its
estate, and its stakeholders.
4. The relief requested in the Motion is authorized under Sections 105(a), 362, and 541 of the
Bankruptcy Code.
IT IS THEREFORE ORDERED THAT
5. The Motion is GRANTED in all respects.
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6. Any transfer of a beneficial interest in MiddleBrook Stock in violation of the Securities
Trading Procedures is void ab initio.
7. The following Securities Trading Procedures shall apply to transfers of MiddleBrook Stock:
a. | Definitions: For purposes of this Interim Order: |
i. | "MiddleBrook Stock is any equity security in the
Debtor, including, without limitation, common stock and options. |
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ii. | An option to acquire stock includes all interests
described in Treasury Regulations Section 1.382-4(d)(9), including any
contingent purchase, warrant, convertible debt, put, stock subject to risk
of forfeiture, contract to acquire stock, or similar interest, regardless
whether it is contingent or otherwise not able to be currently exercised. |
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iii. | "beneficial ownership of MiddleBrook Stock shall be
determined in accordance with the constructive ownership rules that apply
for purposes of Section 382 and the Treasury Regulations thereunder, and
shall include, without limitation, indirect ownership (for example, (i) a
holding company is considered to beneficially own stock owned by its
subsidiaries, (ii) a partner in a partnership (or other entity treated as a
partnership for U.S. federal income tax purposes) is considered to
beneficially own a proportionate interest in stock owned by the
partnership, and (iii) persons or entities acting in concert with a holder
to make a coordinated acquisition may be treated as a single entity), and
any variations of the term ownership (for example, own or owner)
shall have correlative meanings; |
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iv. | A Substantial Equityholder is any person or entity
that beneficially owns at least 4,109,315 shares of MiddleBrook Stock,
which represents approximately 4.75 percent of all issued and outstanding
shares of MiddleBrook Stock.2 |
b. | Procedure for Transfers of MiddleBrook Stock: |
i. | Notice of Substantial MiddleBrook Stock Ownership: Any
person or entity (for purposes of the Motion and this Interim Order, as
such terms are defined for purposes of Section 382, and including persons
acting pursuant to a formal or informal understanding among themselves to
make a coordinated acquisition) that beneficially owns, at any time on or
after |
2 | As of the Petition Date, the Debtor had approximately
86,511,898 outstanding shares of common stock. |
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the date this Motion was filed (the Motion Date), MiddleBrook Stock in an
amount sufficient to qualify such person or entity as a Substantial
Equityholder must file with this Court and serve upon the Debtor and counsel
to the Debtor, a notice of such status, in the form attached hereto as
Exhibit A, on or before the later of (A) 20 calendar days after the
effective date of the notice of entry of the Interim Order or (B) 10
calendar days after becoming a Substantial Equityholder. |
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ii. | Acquisition of MiddleBrook Stock: At least 30 calendar
days before the effective date of any transfer of MiddleBrook Stock that
would result in an increase in the amount of MiddleBrook Stock beneficially
owned by a person or entity that is or subsequently becomes a Substantial
Equityholder or would result in a person or entity becoming a Substantial
Equityholder, such person or entity must serve on the Debtor and counsel to
the Debtor, advance written notice, in the form attached hereto as Exhibit
B of the intended transfer of MiddleBrook Stock. |
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iii. | Disposition of MiddleBrook Stock: At least 30 calendar
days before the effective date of any transfer of MiddleBrook Stock that
would result in a decrease in the amount of MiddleBrook Stock beneficially
owned by a person or entity that is a Substantial Equityholder or would
result in a person or entity ceasing to be a Substantial Equityholder, such
person or entity must serve on the Debtor and counsel to the Debtor,
advance written notice, in the form attached hereto as Exhibit C of the
intended transfer of MiddleBrook Stock. |
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iv. | Objection Procedures: The Debtor shall have 30 business
days after receipt of any of the aforementioned notices to file with this
Court and serve on the person or entity providing such notice an objection
to any proposed transfer of MiddleBrook Stock described in the notice on
the grounds that such transfer might adversely affect the Debtors ability
to use its Tax Attributes. If the Debtor files an objection, the
transaction described in the notice shall not be effective unless approved
by a final, nonappealable order of this Court. If the Debtor does not
object within the 30 business day period, the transaction described in the
notice may proceed solely as set forth in the notice. Any further
transactions by the person or entity providing the notice must be the
subject of additional notices as set forth herein, with an additional 30
calendar day waiting period. |
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v. | Noncompliance with the Securities Trading Procedures:
Any purchase, sale, or other transfer of MiddleBrook Stock in violation of
the Security Trading Procedures shall be null and void ab initio and shall
confer no rights on the transferee. |
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vi. | Debtors Right to Waive: The Debtor may waive, in
writing and in its sole discretion, all restrictions, stays, and
notification procedures contained in this Interim Order or in any other
order entered on the Motion. |
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vii. | Confidentiality: The Debtor, its counsel and counsel
for any Creditors Committee (if appointed) shall keep all information
provided in acquisition or disposition notices delivered pursuant to this
Interim and any other order on the Motion strictly confidential and shall
not disclose the contents thereof to any person (including any member of
any Creditors Committee (if appointed)), except (i) to the extent
necessary to respond to a petition or objection filed with the Court, (ii)
to the extent otherwise required by law, or (iii) to the extent that the
information contained therein is already public; provided, however, that
the Debtor may disclose the contents thereof to its professional financial
advisers, who shall keep all such notices strictly confidential and shall
not disclose the contents thereof to any other person subject to further
Court order. To the extent confidential information is necessary to
respond to a petition or objection filed with the Court, such confidential
information shall be filed under seal or in redacted form. |
8. Notwithstanding Rules 6004 and 7062 of the Federal Rules of Bankruptcy Procedure, the terms
and conditions of this Interim Order shall be immediately effective and enforceable upon its entry.
9. The Final Hearing on the Motion is scheduled for June 2, 2010 at 2:00 p.m. (prevailing
Eastern Time) (the Final Hearing Date), and any objections or responses to the Motion shall be
filed on or before five (5) business days before the Final Hearing Date and served on the parties
as required by Rule 9006-1(c)(ii) of the Local Rules for the United States Bankruptcy Court for the
District of Delaware.
10. As soon as reasonably possible, but not later than five business days after entry of this
Interim Order, the Debtor shall serve a notice in substantially the form attached hereto as Exhibit
E describing the authorized trading restrictions and notification requirements (the Notice of
Order) on (a) the United States Trustee, (b) the United States Securities and Exchange Commission,
(c) the Office of the United States Attorney General for the District of
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Delaware, (d) the Internal Revenue Service, (e) the Debtors thirty largest unsecured
creditors on a consolidated basis, (f) any identified Substantial Equityholder, and (g) American
Stock Transfer & Trust Company (the Stock Transfer Agent).. The Debtor will also file a copy of
the Interim Order as an exhibit to a report on Form 8-K filed with the Securities and Exchange
Commission
11. The Stock Transfer Agent, and any other agent for any MiddleBrook Stock shall serve the
Notice of Order on all holders of more than 2 millions shares of MiddleBrook Stock registered with
such agent (the Registered Holders) no later than five business days after being served with the
Notice of Order; provided, however, that if the Stock Transfer Agent or any other agent for the
MiddleBrook Stock provides the Debtor with the names and addresses of all holders of such shares of
MiddleBrook Stock registered with it no later than three business days after being served the
Notice of Order, the Debtors shall serve the Notice of Order on such holders. Such names and
addresses shall be delivered in writing to the attorney for the Debtor (at the address listed
below).
12. As soon as reasonably possible, but not later than five business days after entry of the
Final Trading Order (as defined in the Motion), the Debtor shall serve the Notice of Order on (a)
the United States Trustee, (b) the United States Securities and Exchange Commission, (c) the Office
of the United States Attorney General for the District of Delaware, (d) the Internal Revenue
Service, (e) the Debtors thirty largest unsecured creditors on a consolidated basis, (f) any
identified or known holder of more than 2% of MiddleBrook Stock, and (g) the Stock Transfer Agent.
The Debtor will also file a copy of the Final Order as an exhibit to a report on Form 8-K filed
with the Securities and Exchange Commission
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13. The requirements set forth in this Interim Order are in addition to the requirements of
Bankruptcy Rule 3001(e) and applicable securities, corporate, and other laws, and do not excuse
compliance therewith.
14. The relief provided in this Interim Order is in addition to, and not in lieu of, any and
all other rights and remedies available to the Debtor.
15. This Court shall retain jurisdiction with respect to all matters arising from or relating
to the interpretation or implementation of this Interim Order.
Dated: May 4, 2010
Wilmington, Delaware
Wilmington, Delaware
/s/ Mary F. Walrath | ||||
MARY F. WALRATH | ||||
UNITED STATES BANKRUPTCY JUDGE | ||||
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