The U.S. Trustee assigned to the Unilife case filed with the U.S. Bankruptcy Court an objection to the Company’s motion to retain Protiviti as financial advisor.
The Trustee asserts, “Although Protiviti states that the terms of its engagements with each ‘Confidential Client’ prohibit the disclosure of the client’s name, it has provided no specific evidence that any of its clients implicated here have such an agreement. But even if it could produce such evidence, Protiviti’s private contractual agreements do not and cannot supersede the ethics and disclosure requirements of the Bankruptcy Code and Rules. Client confidentiality is a common concern with other professionals, including law firms which are also bound by the duties of professional responsibility and confidentiality, yet other professional firms routinely satisfy their disclosure requirements.”
Separately, Amgen filed an objection to Unilife’s asset purchase agreement and motion for an order authorizing the sale of substantially all of the Debtors’ assets. Amgen asserts, “Absent Amgen’s consent or Amgen’s receipt of sale proceeds in an amount equal to the Note Obligations, the Debtors cannot satisfy the requirement of section 363 (f) with regard to the Amgen Liens. First, applicable non-bankruptcy law does not permit the sale of the Amgen Collateral free and clear of the Amgen Liens absent payment of the Note Obligations in full in cash….Second, Amgen does not consent to the sale of the Amgen Collateral free and clear of the Amgen liens….Third, the Amgen Collateral cannot be sold free and clear of the Amgen Liens unless the Amgen Collateral is being sold for net cash proceeds paid to Amgen equal to the Note Obligations. Section 363(f)(3) requires that the sales price exceed the face amount of all liens in order for the sale to be free and clear of such liens.”
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