Roquette Freres, S.A. filed with the U.S. Bankruptcy Court an objection to Terravia Holdings’ motion approving bidding procedures for sale of Debtor’s assets, approving stalking horse bid protections, scheduling auction for and a hearing to approve, and sale of Debtor’s assets. The objection asserts, “Debtors’ form of NDA categorically denies access to confidential information to any party that competes in any way with TerraVia in the manufacture, sale, distribution or use of algae products. ‘In the case where Company is a Receiving Party, Company shall not disclose any Confidential Information to any Affiliate that manufactures, sells or distributes algae products, uses algae to produce or enhance products or provides services similar to or competitive with TerraVia without the prior written consent of TerraVia e-mail consent shall suffice.’ ….If the Debtors are truly concerned about maximizing value, Roquette suggests that the Bid Deadline should be set no earlier than the close of business on September 7, 2017, which would still afford the Debtors several days prior to a September 11 Auction commencement (which presumably could be deferred to September 12th if circumstances warranted) in which to evaluate Qualified Bids.…As currently drafted, the Bidding Procedures disincentive participation by Qualified Bidders at the Auction because a Qualified Bidder that is designated at the conclusion of the Auction as having made an ‘Alternate Bid’ (i.e., a backup bid) has little predictability or control over when its Bid will be deemed to have expired and when its Good Faith Deposit (required to be 10% of its cash purchase price) will be returned. Conceivably, the Debtors and the Successful Bidder could extend the closing of the Successful Bidder’s transaction for months at substantial opportunity cost and inconvenience to the locked-in Alternate Bidder. At minimum, the Bidding Procedures must clearly express that any Alternate Bidder has the right after 30 days to motion the Court on an expedited basis to withdraw its Bid and obtain the full amount of its Good Faith Deposit.”
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