Case 16-12373-KJC Doc 603 Filed 01/20/17 Page 1 of 3 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: BPS US Holdings Inc., et al., 1 Debtors. Chapter 11 Case No. 16-12373 (KJC) Jointly Administered Ref. Docket No. 470 CERTIFICATION OF COUNSEL REGARDING ORDER, PURSUANT TO SECTIONS 105, 363, AND 365 OF THE BANKRUPTCY CODE, (I) APPROVING THE ASSET PURCHASE AGREEMENT FOR THE SALE OF THE SOCCER UNIFORMS BUSINESS AND AUTHORIZING THE SALE CONTEMPLATED THEREIN; AND (II) GRANTING RELATED RELIEF On December 30, 2016, the Debtors filed the Debtors Motion for an Order, Pursuant to Sections 105, 363, and 365 of the Bankruptcy Code, (I) Approving the Asset Purchase Agreement for the Sale of the Soccer Uniforms Business and Authorizing the Sale Contemplated Therein; and (II) Granting Related Relief [D.I. 470] (the Soccer Uniforms Sale Motion ). Objections to the Court s entry of the proposed order attached to the Soccer Uniforms Sale Motion (the Proposed Order ) were due by January 13, 2017 at 4:00 p.m. (ET) (the Objection Deadline ). Prior to the Objection Deadline, the Debtors received informal responses to the Proposed Order from each of the Official Committee of Unsecured Creditors appointed in these chapter 11 cases (the Creditors Committee ), the Official Committee of Equityholders appointed in these 1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor s federal tax identification number or Canadian equivalent, are as follows: BPS US Holdings Inc. (8341); Bauer Hockey, Inc. (3094); Easton Baseball / Softball Inc. (5670); Bauer Hockey Retail Inc. (6663); Bauer Performance Sports Uniforms Inc. (1095); Performance Lacrosse Group Inc. (4200); BPS Diamond Sports Inc. (5909); PSG Innovation Inc. (9408); Performance Sports Group Ltd. (1514); KBAU Holdings Canada, Inc. (5751); Bauer Hockey Retail Corp. (1899); Easton Baseball / Softball Corp. (4068); PSG Innovation Corp. (2165); Bauer Hockey Corp. (4465); BPS Canada Intermediate Corp. (4633); BPS Diamond Sports Corp. (8049); Bauer Performance Sports Uniforms Corp. (2203); and Performance Lacrosse Group Corp. (1249). The Debtors headquarters are located at 100 Domain Drive, Exeter, New Hampshire 03833. 01:21454075.1 1
Case 16-12373-KJC Doc 603 Filed 01/20/17 Page 2 of 3 chapter 11 cases (the Equity Committee ) and the Debtors ABL lenders (the ABL Lenders ). Additionally, the Consumer Privacy Ombudsman appointed in these chapter 11 cases (the Ombudsman ) filed a report with respect to the sale. Subsequent thereto, the Debtors have reached agreement with each of the Creditors Committee, the Equity Committee, the ABL Lenders and the Ombudsman on a form of revised Proposed Order (the Revised Proposed Order ) to address their informal responses and, in the case of the Ombudsman, his recommendations with respect to the sale. In doing so, the Debtors circulated the Revised Proposed Order to each of the Creditors Committee, the Equity Committee, the ABL Lenders and the Ombudsman, as well as the Office of the United States Trustee (the UST ), and none of the parties have objected to entry of the Revised Proposed Order under certification of counsel. As no other objections or responses have been filed or received, the Debtors request entry of the Revised Proposed Order without further notice or hearing. WHEREFORE, the Debtors respectfully request that the Court enter the Revised Proposed Order attached hereto as Exhibit A 2, at the Court s convenience, without further notice or hearing. Dated: January 20, 2017 Wilmington, Delaware YOUNG CONAWAY STARGATT & TAYLOR, LLP /s/ Justin H. Rucki Pauline K. Morgan (No. 3650) Sean T. Greecher (No. 4484) Justin H. Rucki (No. 5304) Shane M. Reil (No. 6195) Rodney Square 1000 North King Street Wilmington, Delaware 19801 Telephone: (302) 571-6600 2 For the Court s convenience, a blackline of the Revised Proposed Order marked against the Proposed Order is attached hereto as Exhibit B. 01:21454075.1 2
Case 16-12373-KJC Doc 603 Filed 01/20/17 Page 3 of 3 Facsimile: (302) 571-1253 -and- PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP Kelley A. Cornish Alice Belisle Eaton Claudia R. Tobler Christopher Hopkins 1285 Avenue of the Americas New York, New York 10019 Telephone: (212) 373-3000 Facsimile: (212) 757-3990 Co-Counsel to the Debtors and Debtors in Possession 01:21454075.1 3
Case 16-12373-KJC Doc 603-1 Filed 01/20/17 Page 1 of 46 Exhibit A Revised Proposed Order 01:21454075.1
Case 16-12373-KJC Doc 603-1 Filed 01/20/17 Page 2 of 46 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE ) In re: ) Chapter 11 ) BPS US Holdings Inc., et al., 1 ) Case No. 16-12373 (KJC) ) Debtors. ) (Jointly Administered) ) ) ) Ref. Docket No. 470 ORDER, PURSUANT TO SECTIONS 105, 363, AND 365 OF THE BANKRUPTCY CODE, (I) APPROVING THE ASSET PURCHASE AGREEMENT FOR THE SALE OF THE SOCCER UNIFORMS BUSINESS AND AUTHORIZING THE SALE CONTEMPLATED THEREIN; AND (II) GRANTING RELATED RELIEF Upon consideration of the motion (the Motion ) 2 of the above-captioned debtors and debtors-in-possession (collectively, the Debtors ) for entry of an order, pursuant to sections 105(a), 363, and 365 of title 11 of the United States Code (the Bankruptcy Code ) and Rules 2002, 6004, 6006, and 9014 of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules ), (i) approving the asset purchase agreement (the APA ) with Saverio Michielli (the Owner or Mr. Michielli ) and a corporation to be incorporated by Saverio Michielli (the Buyer ), in substantially the form annexed hereto as Exhibit 1, for the assets of the Debtors soccer uniform business as provided for in the APA (the Soccer Uniforms Assets ) and authorizing the transactions contemplated therein; and (ii) granting related relief; and it 1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor s federal tax identification number or Canadian equivalent, are as follows: BPS US Holdings Inc. (8341); Bauer Hockey, Inc. (3094); Easton Baseball / Softball Inc. (5670); Bauer Hockey Retail Inc. (6663); Bauer Performance Sports Uniforms Inc. (1095); Performance Lacrosse Group Inc. (4200); BPS Diamond Sports Inc. (5909); PSG Innovation Inc. (9408); Performance Sports Group Ltd. (1514); KBAU Holdings Canada, Inc. (5751); Bauer Hockey Retail Corp. (1899); Easton Baseball / Softball Corp. (4068); PSG Innovation Corp. (2165); Bauer Hockey Corp. (4465); BPS Canada Intermediate Corp. (4633); BPS Diamond Sports Corp. (8049); Bauer Performance Sports Uniforms Corp. (2203); and Performance Lacrosse Group Corp. (1249). The Debtors headquarters are located at 100 Domain Dr., Exeter, New Hampshire 03833. 2 Capitalized terms not defined herein shall have the meanings provided to them in the Motion. 149265.01600/104696328v.2
Case 16-12373-KJC Doc 603-1 Filed 01/20/17 Page 3 of 46 appearing that this Court has jurisdiction to consider the Motion pursuant to 28 U.S.C. 157 and 1334 and the Amended Standing Order of Reference from the United States District Court for the District of Delaware dated as of February 29, 2012; and it appearing that venue of this chapter 11 case and the Motion in this District is proper pursuant to 28 U.S.C. 1408 and 1409; and it appearing that this matter is a core proceeding pursuant to 28 U.S.C. 157(b) and the Court may enter a final order on this matter in accordance with Article III of the U.S. Constitution; and this Court having determined that the relief requested in the Motion is in the best interests of the Debtors and their estates; and this Court having found that the relief requested in the Motion is justified by the facts and circumstances; and it appearing that proper and adequate notice of the Motion has been given and that no other or further notice is necessary; and after due deliberation thereon; and good and sufficient cause appearing therefor, IT IS HEREBY FOUND AND DETERMINED THAT: A. The findings and conclusions set forth herein constitute this Court s findings of fact and conclusions of law pursuant to Bankruptcy Rule 7052, made applicable to this proceeding pursuant to Bankruptcy Rule 9014. B. This Court has jurisdiction over the Motion and over the property of Debtors, including the Soccer Uniform Assets to be sold, assigned, transferred, conveyed, or delivered pursuant to the APA, pursuant to 28 U.S.C. 157 and 1334. This is a core proceeding pursuant to 28 U.S.C. 157(b)(2) and the Court enters this Order as a final order consistent with Article III of the U.S. Constitution. Venue of this chapter 11 case and the Motion in this district and Court is proper under 28 U.S.C. 1408 and 1409. C. This Order constitutes a final order within the meaning of 28 U.S.C. 158(a). Notwithstanding Bankruptcy Rules 6004(h) and 6006(d), and to any extent necessary 149265.01600/104696328v.2 2
Case 16-12373-KJC Doc 603-1 Filed 01/20/17 Page 4 of 46 under Bankruptcy Rule 9014 and Rule 54(b) of the Federal Rules of Civil Procedure, as made applicable by Bankruptcy Rule 7054, this Court finds that there is no just reason for delay in the implementation of this Order, and directs entry of judgment as set forth herein. D. The Soccer Uniforms Assets constitute property of Debtors estates, and title thereto is vested in Debtors estates within the meaning of section 541(a) of the Bankruptcy Code. E. Due and adequate notice of the Motion, the hearing with respect thereto, and the subject matter thereof has been provided to all parties in interest herein, and no other or further notice is necessary. A reasonable opportunity to object or be heard with respect to the Motion and the relief requested therein has been afforded to all interested persons and entities. F. The relief requested in the Motion is in the best interest of the Debtors and their estates. The Debtors have demonstrated good, sufficient, and sound business purposes and justifications for the relief requested in the Motion. G. The APA was negotiated and proposed in good faith, from arms -length bargaining positions, and without collusion. The Buyer is a good-faith purchaser within the meaning of section 363(m) of the Bankruptcy Code and is entitled to the protection thereof. The Buyer meets the standards of good faith that were enumerated by the United States Court of Appeals for the Third Circuit in In re Abbotts Dairies of Pennsylvania, Inc., 788 F.3d 143 (3d Cir. 1986). Neither the Debtors nor the Buyer have engaged in any conduct that would cause or permit the sale to the Buyer, pursuant to the APA and this Order, to be avoided under section 363(n) of the Bankruptcy Code. H. The consideration provided by the Buyer to the Debtors (i) is fair and reasonable, (ii) is the highest or best offer for the Soccer Uniforms Assets, (iii) will provide a 149265.01600/104696328v.2 3
Case 16-12373-KJC Doc 603-1 Filed 01/20/17 Page 5 of 46 greater recovery for the Debtors estates than would be provided by any other available alternative, and (iv) constitutes reasonably equivalent value and fair consideration under the Bankruptcy Code and under the laws of the United States, any state, territory, or possession. I. The Debtors are authorized to sell, or assume and assign, the Soccer Uniforms Assets free and clear of all liens, claims, interests, and encumbrances of any kind or nature whatsoever, because one or more of the standards set forth in sections 363(f)(1)-(5) of the Bankruptcy Code have been satisfied. Those holders of liens, claims, interests, and encumbrances who did not object to the Motion or the relief requested therein, or who interposed and then withdrew their objections, are deemed to have consented to the APA and this Order pursuant to section 363(f)(2) of the Bankruptcy Code. J. The Debtors and the Buyer have, to the extent necessary, satisfied the requirements of section 365 of the Bankruptcy Code in connection with the sale or assumption and assignment of the Soccer Uniforms Assets to the extent provided under the APA. K. The Debtors are under investigation (the Regulatory Investigations ) by certain United States and Canadian regulators, including the U.S. Securities and Exchange Commission (the SEC ), and certain of the Debtors shareholders commenced a class-action securities lawsuit against the Debtors in May 2016, alleging, among other things, that the Debtors made false or misleading statements about its historical and forecasted earnings (the Class Action Lawsuit ). In connection with the Regulatory Investigations and the Class Action Lawsuit, the Debtors instituted a document hold, the most recent of which was dated June 3, 2016 and has been provided to the Owner and Buyer under separate cover (the Document Hold ), pursuant to which the Debtors preserved documents in the Debtors custody or control that relate to the Regulatory Investigations and the Class Action Lawsuit. The APA provides 149265.01600/104696328v.2 4
Case 16-12373-KJC Doc 603-1 Filed 01/20/17 Page 6 of 46 that the Buyer shall keep and maintain the Debtors documents and records for seven (7) years, and it will make the same available for inspection and copying by the Debtors. L. Notice of the Motion was adequate, fair, and equitable under the circumstances and complied in all respects with section 102(1) of the Bankruptcy Code and Bankruptcy Rules 2002, 6004, and 6006. NOW, THEREFOR, IT IS HEREBY ORDERED THAT: 1. The Motion is granted as set forth herein. 2. Any and all objections and responses to the Motion that have not been withdrawn, waived, settled, or resolved, and all reservations of rights included therein, are hereby overruled and denied on the merits. 3. The APA attached hereto as Exhibit 1, and all of the terms and conditions thereof, and all transactions contemplated therein, are hereby approved in all respects. 4. Pursuant to section 363(b) of the Bankruptcy Code, the Debtors, acting by and through their existing agents, representatives, and officers, are authorized and empowered to take any and all actions necessary or appropriate to: (a) consummate and close the APA; (b) execute and deliver, perform under, consummate, and implement the APA and all additional instruments and documents that may be reasonably necessary or desirable to implement the APA, or as may be reasonably necessary or appropriate to the performance of the obligations as contemplated by the APA and such other ancillary documents. 5. This Order shall be binding in all respects upon the Debtors, their estates, all creditors, all holders of equity interests in the Debtors, all holders of any interests or claims (whether known or unknown) against the Debtors, any holders of interests or claims against or on all or any portion of the Soccer Uniforms Assets transferred under the APA, Mr. Michielli 149265.01600/104696328v.2 5
Case 16-12373-KJC Doc 603-1 Filed 01/20/17 Page 7 of 46 and the Buyer, and all successors and assigns of each of the foregoing, and any trustees, examiners, or other fiduciary under any section of the Bankruptcy Code, if any, subsequently appointed in the Debtors chapter 11 cases or upon a conversion to chapter 7 under the Bankruptcy Code of the Debtors cases. The terms and provisions of the APA and this Order shall inure to the benefit of the Debtors and their estates, and Mr. Michielli and the Buyer, and the respective affiliates, successors and assigns of each, notwithstanding any subsequent appointment of any trustee(s), party, entity, or other fiduciary under any section of any chapter of the Bankruptcy Code, as to which trustee(s), party, entity, or other fiduciary such terms and provisions likewise shall be binding. 6. Pursuant to sections 105(a), 363(b), 363(f), 365(b), and 365(f) of the Bankruptcy Code, upon the Closing of the APA and except as expressly noted in the APA or this Order, the Soccer Uniforms Assets shall be transferred to the Buyer free and clear of all encumbrances, claims, interests and asserted ownership rights, and liens, including mortgages, restrictions, hypothecations, charges, indentures, loan agreements, instruments, leases, licenses, options, deeds of trust, security interests, other interests, conditional sale or other title retention agreements, pledges, and other liens (including mechanics, materialman s, and other consensual and non-consensual liens and statutory liens, judgments, demands, encumbrances, rights of first refusal, offsets, contracts, recoupment, rights of recovery, claims for reimbursement, contribution, indemnity, exoneration, products liability, alter ego, environmental, or tax, decrees of any court or foreign or domestic governmental entity, or charges of any kind or nature, if any, including any restriction on the use, voting, transfer, receipt of income or other exercise of any attributes of ownership, debts arising in any way in connection with any agreements, acts, or failures to act, whether known or unknown, choate or inchoate, filed or unfiled, scheduled or 149265.01600/104696328v.2 6
Case 16-12373-KJC Doc 603-1 Filed 01/20/17 Page 8 of 46 unscheduled, noticed or unnoticed, recorded or unrecorded, perfected or unperfected, allowed or disallowed, contingent or non-contingent, liquidated or unliquidated, matured or unmatured, material or non-material, disputed or undisputed, whether arising prior to or subsequent to the commencement of this bankruptcy case, and whether imposed by agreement, understanding, law, equity or otherwise, including claims otherwise arising under doctrines of successor liability (collectively, the Interests or Claims ), with all such Interests or Claims to attach to the cash proceeds of the sale in the order of their priority, with the same validity, force, and effect that they now have as against the Soccer Uniform Assets, subject to any claims and defenses the Debtors may possess with respect thereto. 7. The proceeds from the sale of the Soccer Uniforms Assets will be disbursed in accordance with the terms of the Debtors postpetition debtor-in-possession financing facilities and that certain Final Order (I) Authorizing the Debtors to Obtain Post- Petition Secured Financing Pursuant to 11 U.S.C. 364, (II) Authorizing the Debtors Use of Cash Collateral Pursuant to 11 U.S.C. 363; (III) Granting Adequate Protection to Prepetition Secured Lenders Pursuant to 11 U.S.C. 361, 362, 363 and 364; and (IV) Granting Related Relief [Docket No. 229] (the Final DIP Order ). 8. This Order shall be construed and shall constitute for any and all purposes a full and complete general assignment, conveyance, and transfer of the Soccer Uniforms Assets or a bill of sale transferring good and marketable title in such Soccer Uniforms Assets to the Buyer pursuant to the terms and allocations set forth in the APA. 9. Subject to the terms and conditions of the APA and this Order, the transfer of the Soccer Uniforms Assets to Buyer pursuant to the APA does not require any further consents; constitute a legal, valid, and effective transfer of the Soccer Uniforms Assets; and shall 149265.01600/104696328v.2 7
Case 16-12373-KJC Doc 603-1 Filed 01/20/17 Page 9 of 46 vest Buyer with right, title, and interest of the Debtors in and to the Soccer Uniforms Assets as set forth in the APA, free and clear of all Interests or Claims of any kind or nature whatsoever. 10. Upon consummation of the APA, if any person or entity that has filed financing statements, mortgages, mechanic s liens or other documents or agreements evidencing Interests or Claims against or in the Soccer Uniforms Assets shall not have delivered to the Buyer or Debtors prior to the Closing, in proper form for filing and executed by the appropriate parties, termination statements, instruments of satisfactions, releases of all Interests or Claims that the person or entity has with respect to the Soccer Uniforms Assets, or otherwise, then (a) the Buyer is hereby authorized to execute and file such statements, instruments, releases, and other documents on behalf of the person or entity with respect to the Soccer Uniform Assets and (b) the Buyer is hereby authorized to file, register, or otherwise record a certified copy of this Order, which, once filed, registered or otherwise recorded, shall constitute conclusive evidence of the release of all Interests or Claims in the Soccer Uniform Assets of any kind or nature; provided, that, notwithstanding anything to the contrary, the provisions of this Order shall be self-executing, and neither the Debtors nor the Buyer shall be required to execute or file releases, termination statements, assignments, consents, or other instruments in order to effectuate, consummate, and implement the provisions of this Order. For the avoidance of doubt, upon consummation of the APA, the Buyer is authorized to file termination statements, lien terminations, or other amendments in any required jurisdiction to remove and record, notice filings or financing statements recorded to attach, perfect, or otherwise notice any lien or encumbrance that is extinguished or otherwise released pursuant to this Order under section 363 and the related provisions of the Bankruptcy Code. 149265.01600/104696328v.2 8
Case 16-12373-KJC Doc 603-1 Filed 01/20/17 Page 10 of 46 11. All entities and persons, including all lenders; debt security holders; equity security holders; governmental, tax, and regulatory authorities; parties to executory contracts and unexpired leases; customers; employees and former employees; dealers and sale representatives; and trade or other creditors holding Interests or Claims of any kind or nature whatsoever relating to the Soccer Uniform Assets against or in the Debtors or the Soccer Uniforms Assets subject to the APA arising under or out of, in connection with, or in any way relating to, the Soccer Uniforms Assets or the assumption and assignment or sale of the Soccer Uniforms Assets to the Buyer, hereby are forever barred, estopped, and permanently enjoined from asserting any Interests or Claims of any kind or nature whatsoever against the Buyer and its successors, designees, permitted assigns, or property, or the Soccer Uniforms Assets conveyed in accordance with the APA, except as set forth in the APA or this Order. 12. Pursuant to sections 105, 363, and 365 of the Bankruptcy Code and the terms of the APA, the Debtors are hereby authorized to assume and assign or sell the Debtors interests in the Soccer Uniforms Assets to the Buyer. 13. The Soccer Uniforms Assets shall be transferred to, and remain in full force and effect for the benefit of, the Buyer in accordance with the terms of any agreements relating to the Soccer Uniforms Assets, notwithstanding any provision in any such agreement that prohibits, restricts, or conditions such assignment or transfer. 14. The outstanding cure obligations ( Cure Costs ) of the Debtors and Buyer relating to the Soccer Uniforms Assets, and the Cure Costs for the Soccer Uniforms Assets, are hereby fixed at the amounts set forth in Schedule 1.01(g) to the APA; the Buyer and the Debtors shall have no further liability for any Cure Costs for the Soccer Uniforms Assets; provided, however, that from the date of Closing forward the Buyer shall have both the benefits and the 149265.01600/104696328v.2 9
Case 16-12373-KJC Doc 603-1 Filed 01/20/17 Page 11 of 46 burdens of the Soccer Uniforms Assets, and shall honor in the ordinary course any obligations under the Soccer Uniforms Assets that first become due and payable after entry of this Order, regardless of when accrued, and the Debtors shall be relieved from any further liability with respect to the Soccer Uniforms Assets. 15. The transfer of the Debtors interest in the Soccer Uniforms Assets as provided in the APA is AS IS-WHERE IS, without any representations, warranties or conditions of any kind from the Debtors except as expressly set forth in the APA and cannot be implied as to description, fitness for purpose, book value, quantity, quality thereof, state, condition or location thereof or in respect of any matter or thing whatsoever (other than title of the Debtors). Notwithstanding anything to the contrary in the Motion or the APA, the Buyer acknowledges and agrees that it is familiar with the tangible personal property forming part of the Soccer Uniform Assets, and that it has relied upon its own investigations and inspection of such assets in entering into and completing the transaction contemplated herein. 16. After the Closing Date, the Owner and Buyer shall, and shall cause its employees to, until the seventh (7th) anniversary of the Closing Date, retain all books, records and other documents pertaining to the Soccer Uniforms Assets in existence on the Closing Date, unless an extension is required by applicable law, and shall make the same available for inspection and copying by the Debtors and their successors and assigns (including any regulatory agency designated by the Debtors, or a chapter 7 plan trustee or other liquidating trustee or estate fiduciary overseeing the liquidation of the Debtors or their estates or any part of them) for any reasonable business purpose during normal business hours of the business upon reasonable request and upon reasonable notice, in each case at such entity s own expense. For purposes hereof, a reasonable business purpose includes, among other things, the Regulatory 149265.01600/104696328v.2 10
Case 16-12373-KJC Doc 603-1 Filed 01/20/17 Page 12 of 46 Investigations and the liquidation and defense or prosecution of claims by the Debtors or their estates after the Closing Date. In addition, the Buyer shall, and shall cause its employees to, retain all books, records and other documents within the scope of the Document Hold for as long as necessary to carry out the purpose of the Document Hold. 17. Notwithstanding anything to the contrary in the Motion or the APA, the Buyer shall indemnify and save harmless the Debtors and each of their affiliates, officers, and directors, employees, and officers, from and against all costs, expenses, losses, claims or liabilities, including legal fees and disbursements, suffered or incurred by the Debtors or any such other person arising out of or in any way connected with the Assumed Liabilities (as defined in the APA). For the avoidance of doubt, Buyer shall have no obligation to indemnify and save harmless the Debtors and each of their affiliates, officers, directors, and employees from and against all costs, expenses, losses, claims or liabilities, including legal fees and disbursements, suffered or incurred by the Debtors or any such other person that does not arise out of or is not in any way connected with the Assumed Liabilities. 18. Notwithstanding anything to the contrary in the Motion or the APA but subject to the provisions of paragraph 7 of this Order, for the avoidance of doubt, without limitation, nothing in the APA shall be determinative of the issue of allocation of sale proceeds, or prejudice the rights of parties in interest related thereto. 19. Notwithstanding anything to the contrary in the Motion or the APA, if any portion of the covenants and agreements contained in Section 5.04 of the APA, or the application thereof, is construed to be invalid or unenforceable, then the other portions of such covenant(s) or agreement(s) or the application thereof shall not be affected and shall be given full force and effect without regard to the invalid or unenforceable portions. If any covenant or agreement in 149265.01600/104696328v.2 11
Case 16-12373-KJC Doc 603-1 Filed 01/20/17 Page 13 of 46 Section 5.04 is held to be unenforceable because of the area covered, the duration thereof, or the scope thereof, then the court making such determination shall have the power to reduce the area and/or duration and/or limit the scope thereof, and the covenant or agreement shall then be enforceable in its reduced form. 20. Notwithstanding anything to the contrary in the Motion or the APA, Buyer must abide by the terms and representations set forth as Exhibit 2 hereto, and shall deliver an executed copy of such representations to the Debtors prior to Closing as a condition to Closing. 21. Notwithstanding the provisions of Bankruptcy Rules 6004(h), 6006(d), or 7062 or any applicable provisions of the Local Rules of Bankruptcy Practice and Procedure of the United States Bankruptcy Court for the District of Delaware, this Order shall not be stayed after the entry hereof, but shall be effective and enforceable immediately upon entry, and the 14- day stay provided in Bankruptcy Rules 6004(h) and 6006(d) is hereby expressly waived and shall not apply. 22. The Court shall retain exclusive jurisdiction to resolve any dispute arising from or relating to the transaction or this Order. Dated: Wilmington, Delaware, 2017 Kevin J. Carey United States Bankruptcy Judge 12 149265.01600/104696328v.2
Case 16-12373-KJC Doc 603-1 Filed 01/20/17 Page 14 of 46 Exhibit 1 APA 149265.01600/104696328v.2
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Case 16-12373-KJC Doc 603-1 Filed 01/20/17 Page 45 of 46 Exhibit 2 Buyer Representations 149265.01600/104696328v.2
Case 16-12373-KJC Doc 603-1 Filed 01/20/17 Page 46 of 46 BUYER S REPRESENTATIONS In connection with the sale and transfer of certain personally identifiable information of Debtors ( PII ) to Saverio Michielli and a corporation to be incorporated by Mr. Michielli (collectively, Buyer ) pursuant to the Asset Purchase Agreement, dated December 30, 2016, between Bauer Performance Sports Uniforms Corp. and Bauer Performance Sports Uniforms Inc. (collectively, Sellers ) and Buyer; and, in acceptance of the recommendations of the Consumer Privacy Ombudsman, Buyer hereby agrees as follows: 1. Buyer will treat the PII collected under the inaria.ca Privacy Policy, dated February 6, 2010 ( Inaria.ca Privacy Policy ) in accordance with the terms of the Inaria.ca Privacy Policy. 2. In the event Buyer desires to make any material changes to the Inaria.ca Privacy Policy as applied to PII collected under such privacy policy, Buyer will obtain the relevant consumers affirmative consent ( opt in ) before making any such changes, which changes may include, for example, applying Buyer s own privacy policy to the extent there are material differences with the Inaria.ca Privacy Policy. 3. Buyer will comply with applicable laws relating to privacy and data protection in relation to the PII that is subject to the sale.
Case 16-12373-KJC Doc 603-2 Filed 01/20/17 Page 1 of 17 Exhibit B Blackline 01:21454075.1
Case 16-12373-KJC Doc 603-2 Filed 01/20/17 Page 2 of 17 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE ) In re: ) Chapter 11 ) BPS US Holdings Inc., et al., 1 ) Case No. 16-12373 (KJC) ) BPS US Holdings Inc., et al., 1 ) Case No. 16-12373 (KJC) ) Debtors. ) (Jointly Administered) ) ) ) Ref. Docket No. 470 ORDER, PURSUANT TO SECTIONS 105, 363, AND 365 OF THE BANKRUPTCY CODE, (I) APPROVING THE ASSET PURCHASE AGREEMENT FOR THE SALE OF THE SOCCER UNIFORMS BUSINESS AND AUTHORIZING THE SALE CONTEMPLATED THEREIN; AND (II) GRANTING RELATED RELIEF Upon consideration of the motion (the Motion ) 2 of the above-captioned debtors and debtors-in-possession (collectively, the Debtors ) for entry of an order, pursuant to sections 105(a), 363, and 365 of title 11 of the United States Code (the Bankruptcy Code ) and Rules 2002, 6004, 6006, and 9014 of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules ), (i) approving the asset purchase agreement (the APA ) with Saverio Michielli (the 1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor s federal tax identification number or Canadian equivalent, are as follows: BPS US Holdings Inc. (8341); Bauer Hockey, Inc. (3094); Easton Baseball / Softball Inc. (5670); Bauer Hockey Retail Inc. (6663); Bauer Performance Sports Uniforms Inc. (1095); Performance Lacrosse Group Inc. (4200); BPS Diamond Sports Inc. (5909); PSG Innovation Inc. (9408); Performance Sports Group Ltd. (1514); KBAU Holdings Canada, Inc. (5751); Bauer Hockey Retail Corp. (1899); Easton Baseball / Softball Corp. (4068); PSG Innovation Corp. (2165); Bauer Hockey Corp. (4465); BPS Canada Intermediate Corp. (4633); BPS Diamond Sports Corp. (8049); Bauer Performance Sports Uniforms Corp. (2203); and Performance Lacrosse Group Corp. (1249). The Debtors headquarters are located at 100 Domain Dr., Exeter, New Hampshire 03833. 1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor s federal tax identification number or Canadian equivalent, are as follows: BPS US Holdings Inc. (8341); Bauer Hockey, Inc. (3094); Easton Baseball / Softball Inc. (5670); Bauer Hockey Retail Inc. (6663); Bauer Performance Sports Uniforms Inc. (1095); Performance Lacrosse Group Inc. (4200); BPS Diamond Sports Inc. (5909); PSG Innovation Inc. (9408); Performance Sports Group Ltd. (1514); KBAU Holdings Canada, Inc. (5751); Bauer Hockey Retail Corp. (1899); Easton Baseball / Softball Corp. (4068); PSG Innovation Corp. (2165); Bauer Hockey Corp. (4465); BPS Canada Intermediate Corp. (4633); BPS Diamond Sports Corp. (8049); Bauer Performance Sports Uniforms Corp. (2203); and Performance Lacrosse Group Corp. (1249). The Debtors headquarters are located at 100 Domain Dr., Exeter, New Hampshire 03833. 2 Capitalized terms not defined herein shall have the meanings provided to them in the Motion. 149265.01600/104696328v.2
Case 16-12373-KJC Doc 603-2 Filed 01/20/17 Page 3 of 17 Owner or Mr. Michielli ) and a corporation to be incorporated by Saverio Michielli (the Buyer ), in substantially the form annexed hereto as Exhibit 1, for the assets of the Debtors soccer uniform business as provided for in the APA (the Soccer Uniforms Assets ) and authorizing the transactions contemplated therein; and (ii) granting related relief; and it appearing that this Court has jurisdiction to consider the Motion pursuant to 28 U.S.C. 157 and 1334 and the Amended Standing Order of Reference from the United States District Court for the District of Delaware dated as of February 29, 2012; and it appearing that venue of this chapter 11 case and the Motion in this District is proper pursuant to 28 U.S.C. 1408 and 1409; and it appearing that this matter is a core proceeding pursuant to 28 U.S.C. 157(b) and the Court may enter a final order on this matter in accordance with Article III of the U.S. ConstituionConstitution; and this Court having determined that the relief requested in the Motion is in the best interests of the Debtors and their estates; and this Court having found that the relief requested in the Motion is justified by the facts and circumstances; and it appearing that proper and adequate notice of the Motion has been given and that no other or further notice is necessary; and after due deliberation thereon; and good and sufficient cause appearing therefor, IT IS HEREBY FOUND AND DETERMINED THAT: A. The findings and conclusions set forth herein constitute this Court s findings of fact and conclusions of law pursuant to Bankruptcy Rule 7052, made applicable to this proceeding pursuant to Bankruptcy Rule 9014. B. This Court has jurisdiction over the Motion and over the property of Debtors, including the Soccer Uniform Assets to be sold, assigned, transferred, conveyed, or delivered pursuant to the APA, pursuant to 28 U.S.C. 157 and 1334. This is a core proceeding pursuant to 28 U.S.C. 157(b)(2) and the Court enters this Order as a final order 149265.01600/104696328v.2 2
Case 16-12373-KJC Doc 603-2 Filed 01/20/17 Page 4 of 17 consistent with Article III of the U.S. Constitution. Venue of this chapter 11 case and the Motion in this district and Court is proper under 28 U.S.C. 1408 and 1409. C. This Order constitutes a final order within the meaning of 28 U.S.C. 158(a). Notwithstanding Bankruptcy Rules 6004(h) and 6006(d), and to any extent necessary under Bankruptcy Rule 9014 and Rule 54(b) of the Federal Rules of Civil Procedure, as made applicable by Bankruptcy Rule 7054, this Court finds that there is no just reason for delay in the implementation of this Order, and directs entry of judgment as set forth herein. D. The Soccer Uniforms Assets constitute property of Debtors estates, and title thereto is vested in Debtors estates within the meaning of section 541(a) of the Bankruptcy Code. E. Due and adequate notice of the Motion, the hearing with respect thereto, and the subject matter thereof has been provided to all parties in interest herein, and no other or further notice is necessary. A reasonable opportunity to object or be heard with respect to the Motion and the relief requested therein has been afforded to all interested persons and entities. F. The relief requested in the Motion is in the best interest of the Debtors and their estates. The Debtors have demonstrated good, sufficient, and sound business purposes and justifications for the relief requested in the Motion. G. The APA was negotiated and proposed in good faith, from arms -length bargaining positions, and without collusion. The Buyer is a good-faith purchaser within the meaning of section 363(m) of the Bankruptcy Code and is entitled to the protection thereof. The Buyer meets the standards of good faith that were enumerated by the United States Court of Appeals for the Third Circuit in In re Abbotts Dairies of Pennsylvania, Inc., 788 F.3d 143 (3d Cir. 1986). Neither the Debtors nor the Buyer have engaged in any conduct that would cause or 149265.01600/104696328v.2 3
Case 16-12373-KJC Doc 603-2 Filed 01/20/17 Page 5 of 17 permit the sale to the Buyer, pursuant to the APA and this Order, to be avoided under section 363(n) of the Bankruptcy Code. H. The consideration provided by the Buyer to the Debtors (i) is fair and reasonable, (ii) is the highest or best offer for the Soccer Uniforms Assets, (iii) will provide a greater recovery for the Debtors estates than would be provided by any other available alternative, and (iv) constitutes reasonably equivalent value and fair consideration under the Bankruptcy Code and under the laws of the United States, any state, territory, or possession. I. The Debtors are authorized to sell, or assume and assign, the Soccer Uniforms Assets free and clear of all liens, claims, interests, and encumbrances of any kind or nature whatsoever, because one or more of the standards set forth in sections 363(f)(1)-(5) of the Bankruptcy Code have been satisfied. Those holders of liens, claims, interests, and encumbrances who did not object to the Motion or the relief requested therein, or who interposed and then withdrew their objections, are deemed to have consented to the APA and this Order pursuant to section 363(f)(2) of the Bankruptcy Code. J. The Debtors and the Buyer have, to the extent necessary, satisfied the requirements of section 365 of the Bankruptcy Code in connection with the sale or assumption and assignment of the Soccer Uniforms Assets to the extent provided under the APA. K. The Debtors are under investigation (the Regulatory Investigations ) by certain United States and Canadian regulators, including the U.S. Securities and Exchange Commission (the SEC ), and certain of the Debtors shareholders commenced a class-action securities lawsuit against the Debtors in May 2016, alleging, among other things, that the Debtors made false or misleading statements about its historical and forecasted earnings (the Class Action Lawsuit ). In connection with the Regulatory Investigations and the Class Action 149265.01600/104696328v.2 4
Case 16-12373-KJC Doc 603-2 Filed 01/20/17 Page 6 of 17 Lawsuit, the Debtors instituted a document hold, the most recent of which was dated June 3, 2016 and has been provided to the Owner and Buyer under separate cover (the Document Hold ), pursuant to which the Debtors preserved documents in the Debtors custody or control that relate to the Regulatory Investigations and the Class Action Lawsuit. The APA provides that the Buyer shall keep and maintain the Debtors documents and records for seven (7) years, and it will make the same available for inspection and copying by the Debtors. L. Notice of the Motion was adequate, fair, and equitable under the circumstances and complied in all respects with section 102(1) of the Bankruptcy Code and Bankruptcy Rules 2002, 6004, and 6006. NOW, THEREFOR, IT IS HEREBY ORDERED THAT: 1. 2. The Motion is granted as set forth herein. Any and all objections and responses to the Motion that have not been withdrawn, waived, settled, or resolved, and all reservations of rights included therein, are hereby overruled and denied on the merits. 3. The APA attached hereto as Exhibit 1, and all of the terms and conditions thereof, and all transactions contemplated therein, are hereby approved in all respects. 4. Pursuant to section 363(b) of the Bankruptcy Code, the Debtors, acting by and through their existing agents, representatives, and officers, are authorized and empowered to take any and all actions necessary or appropriate to: (a) consummate and close the APA; (b) execute and deliver, perform under, consummate, and implement the APA and all additional instruments and documents that may be reasonably necessary or desirable to implement the APA, or as may be reasonably necessary or appropriate to the performance of the obligations as contemplated by the APA and such other ancillary documents. 149265.01600/104696328v.2 5
Case 16-12373-KJC Doc 603-2 Filed 01/20/17 Page 7 of 17 5. This Order shall be binding in all respects upon the Debtors, their estates, all creditors, all holders of equity interests in the Debtors, all holders of any interests or claims (whether known or unknown) against the Debtors, any holders of interests or claims against or on all or any portion of the Soccer Uniforms Assets transferred under the APA, Mr. Michielli and the Buyer, and all successors and assigns of each of the foregoing, and any trustees, examiners, or other fiduciary under any section of the Bankruptcy Code, if any, subsequently appointed in the Debtors chapter 11 cases or upon a conversion to chapter 7 under the Bankruptcy Code of the Debtors cases. The terms and provisions of the APA and this Order shall inure to the benefit of the Debtors and their estates, and Mr. Michielli and the Buyer, and the respective affiliates, successors and assigns of each, notwithstanding any subsequent appointment of any trustee(s), party, entity, or other fiduciary under any section of any chapter of the Bankruptcy Code, as to which trustee(s), party, entity, or other fiduciary such terms and provisions likewise shall be binding. 6. Pursuant to sections 105(a), 363(b), 363(f), 365(b), and 365(f) of the Bankruptcy Code, upon the Closing of the APA and except as expressly noted in the APA or this Order, the Soccer Uniforms Assets shall be transferred to the Buyer free and clear of all encumbrances, claims, interests and asserted ownership rights, and liens, including mortgages, restrictions, hypothecations, charges, indentures, loan agreements, instruments, leases, licenses, options, deeds of trust, security interests, other interests, conditional sale or other title retention agreements, pledges, and other liens (including mechanics, materialman s, and other consensual and non-consensual liens and statutory liens, judgments, demands, encumbrances, rights of first refusal, offsets, contracts, recoupment, rights of recovery, claims for reimbursement, contribution, indemnity, exoneration, products liability, alter ego, environmental, or tax, decrees 149265.01600/104696328v.2 6
Case 16-12373-KJC Doc 603-2 Filed 01/20/17 Page 8 of 17 of any court or foreign or domestic governmental entity, or charges of any kind or nature, if any, including any restriction on the use, voting, transfer, receipt of income or other exercise of any attributes of ownership, debts arising in any way in connection with any agreements, acts, or failures to act, whether known or unknown, choate or inchoate, filed or unfiled, scheduled or unscheduled, noticed or unnoticed, recorded or unrecorded, perfected or unperfected, allowed or disallowed, contingent or non-contingent, liquidated or unliquidated, matured or unmatured, material or non-material, disputed or undisputed, whether arising prior to or subsequent to the commencement of this bankruptcy case, and whether imposed by agreement, understanding, law, equity or otherwise, including claims otherwise arising under doctrines of successor liability (collectively, the Interests or Claims ), with all such Interests or Claims to attach to the cash proceeds of the sale in the order of their priority, with the same validity, force, and effect that they now have as against the Soccer Uniform Assets, subject to any claims and defenses the Debtors may possess with respect thereto. 7. The proceeds from the sale of the Soccer Uniforms Assets will be disbursed in accordance with the terms of the Debtors postpetition debtor-in-possession financing facilities and that certain Final Order (I) Authorizing the Debtors to Obtain Post-Petition Secured Financing Pursuant to 11 U.S.C. 364, (II) Authorizing the Debtors Use of Cash Collateral Pursuant to 11 U.S.C. 363; (III) Granting Adequate Protection to Prepetition Secured Lenders Pursuant to 11 U.S.C. 361, 362, 363 and 364; and (IV) Granting Related Relief [Docket No. 229] (the Final DIP Order ). 8. This Order shall be construed and shall constitute for any and all purposes a full and complete general assignment, conveyance, and transfer of the Soccer Uniforms Assets 149265.01600/104696328v.2 7
Case 16-12373-KJC Doc 603-2 Filed 01/20/17 Page 9 of 17 or a bill of sale transferring good and marketable title in such Soccer Uniforms Assets to the Buyer pursuant to the terms and allocations set forth in the APA. 9. Subject to the terms and conditions of the APA and this Order, the transfer of the Soccer Uniforms Assets to Buyer pursuant to the APA does not require any further consents; constitute a legal, valid, and effective transfer of the Soccer Uniforms Assets; and shall vest Buyer with right, title, and interest of the Debtors in and to the Soccer Uniforms Assets as set forth in the APA, free and clear of all Interests or Claims of any kind or nature whatsoever. 10. Upon consummation of the APA, if any person or entity that has filed financing statements, mortgages, mechanic s liens or other documents or agreements evidencing Interests or Claims against or in the Soccer Uniforms Assets shall not have delivered to the Buyer or Debtors prior to the Closing, in proper form for filing and executed by the appropriate parties, termination statements, instruments of satisfactions, releases of all Interests or Claims that the person or entity has with respect to the Soccer Uniforms Assets, or otherwise, then (a) the Buyer is hereby authorized to execute and file such statements, instruments, releases, and other documents on behalf of the person or entity with respect to the Soccer Uniform Assets and (b) the Buyer is hereby authorized to file, register, or otherwise record a certified copy of this Order, which, once filed, registered or otherwise recorded, shall constitute conclusive evidence of the release of all Interests or Claims in the Soccer Uniform Assets of any kind or nature; provided, that, notwithstanding anything to the contrary, the provisions of this Order shall be self-executing, and neither the Debtors nor the Buyer shall be required to execute or file releases, termination statements, assignments, consents, or other instruments in order to effectuate, consummate, and implement the provisions of this Order. For the avoidance of doubt, upon consummation of the APA, the Buyer is authorized to file termination statements, lien 149265.01600/104696328v.2 8
Case 16-12373-KJC Doc 603-2 Filed 01/20/17 Page 10 of 17 terminations, or other amendments in any required jurisdiction to remove and record, notice filings or financing statements recorded to attach, perfect, or otherwise notice any lien or encumbrance that is extinguished or otherwise released pursuant to this Order under section 363 and the related provisions of the Bankruptcy Code. 11. All entities and persons, including all lenders; debt security holders; equity security holders; governmental, tax, and regulatory authorities; parties to executory contracts and unexpired leases; customers; employees and former employees; dealers and sale representatives; and trade or other creditors holding Interests or Claims of any kind or nature whatsoever relating to the Soccer Uniform Assets against or in the Debtors or the Soccer Uniforms Assets subject to the APA arising under or out of, in connection with, or in any way relating to, the Soccer Uniforms Assets or the assumption and assignment or sale of the Soccer Uniforms Assets to the Buyer, hereby are forever barred, estopped, and permanently enjoined from asserting any Interests or Claims of any kind or nature whatsoever against the Buyer and its successors, designees, permitted assigns, or property, or the Soccer Uniforms Assets conveyed in accordance with the APA, except as set forth in the APA or this Order. 12. Pursuant to sections 105, 363, and 365 of the Bankruptcy Code and the terms of the APA, the Debtors are hereby authorized to assume and assign or sell the Debtors interests in the Soccer Uniforms Assets to the Buyer. 13. The Soccer Uniforms Assets shall be transferred to, and remain in full force and effect for the benefit of, the Buyer in accordance with the terms of any agreements relating to the Soccer Uniforms Assets, notwithstanding any provision in any such agreement that prohibits, restricts, or conditions such assignment or transfer. 149265.01600/104696328v.2 9