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Paddling Down Esopus Creek

By Jonathan Friedland and Mazen Asbahi
February 26, 2007

An end-of-year (Nov. 29) Delaware Chancery Court decision, Esopus Creek Value LP v. Hauf, No. 2487-N (Del. Ch. Nov. 29, 2006), is receiving a great deal of attention from corporate transactional and corporate restructuring attorneys alike.

In Esopus, the Delaware Chancery Court prevented a financially sound company that was prohibited by federal securities law from holding a shareholder vote, because it failed to meet its reporting requirements, from executing an agreement outside of bankruptcy to sell substantially all of its assets under Section 363 of the Bankruptcy Code without first obtaining common stockholder approval as required under Section 271(a) of the Delaware General Company Law ('DGCL').

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