Oxford Expositions, LLC v. Questex Media Group, LLC (In re Oxford Expositions, LLC)

466 B.R. 818
United States Bankruptcy Court, N.D. Mississippi·Decided September 12, 2011·No. Bankruptcy No. 10-16218-DWH; Adversary No. 11-01095-DWH·Published·Cited by 2 cases

Opinion

OPINION

DAVID W. HOUSTON, III, Bankruptcy Judge.

On consideration before the court are the following, to-wit:

1. Motion by Questex Media Group, LLC, (“Questex”), to determine whether a motion filed by the debt- or, Oxford Expositions, LLC, (“Oxford Expo”), to conduct certain trade show activities is a non-core proceeding; a response to said motion having been filed by Oxford Expo.
2. Request by Questex to determine the statutory and constitutional limits of bankruptcy court jurisdiction regarding the above captioned adversary proceeding; a response to said request having been filed by Oxford Expo with a joinder in said response by Edwin E. Meek (“Meek”) and Jennifer Robinson (“Robinson”).

And the court, having heard argument and considered the memoranda submitted by the parties, hereby finds as follows:

I.

The court has jurisdiction of the subject matter of and the parties to this proceeding pursuant to 28 U.S.C. § 1334 and 28 U.S.C. § 157, in addition to the orders of reference of bankruptcy cases and proceedings to the United States Bankruptcy Judge, nunc pro tunc, dated July 27, 1984 and August 13,1984, executed by the United States District Court for the Northern District of Mississippi. Whether the motion to conduct certain trade show activities and the related adversary proceeding, captioned hereinabove, both of which are practically identical, are core or non-core proceedings will be determined through this opinion.

II.

FACTUAL SUMMARY

On April 15, 2007, pursuant to a Stock Purchase Agreement, (“SPA”), Questex Media Group, Inc., (“Old Questex”), purchased all of the shares of stock of Oxford Publishing, Inc., (“Oxford Publishing”), and Oxford Communication, Inc., (“Oxford Communication”), from Meek and others for the total consideration of [821]*821$40,000,000.00. Oxford Publishing and Oxford Communication were engaged in the business of publishing magazines related to the hospitality industry, as well as, the promotion and management of trade shows related to this same industry throughout the United States. As a part of the SPA, Meek expressly agreed not to engage directly or indirectly in businesses like those conducted by Oxford Publishing or Oxford Communication, as well as, businesses proposed to be conducted by Oxford Publishing or Oxford Communication for a period of five years from the closing date of the SPA. The non-competition and non-solicitation provision is found in paragraph 6.6 of the SPA, and the definition of “Business” is found in the definition section on page 2. To understand the scope of the non-compete, both of these provisions must be read together.

The non-compete provision in the SPA reads as follows:

6.6 Noncompetition and Nonsolici-tation. For a period of five years from and after the Closing Date, other than as an employee or agent of an Acquired Company, none of the Sellers will, and will cause each of their Affiliates not to, engage directly or indirectly in all or any portion of the Business as conducted as of the Closing Date; provided, however, that no owner of less than 5% of the outstanding stock of any publicly-traded corporation will be deemed to be so engaged solely by reason thereof in the Businesses. For a period of five years from and after the Closing Date, the Sellers will not, and will cause each of their Affiliates not to, recruit, offer employment, employ, engage as a consultant, lure or entice away, or in any other manner persuade or attempt to persuade, any Person who is an employee of any of the Acquired Companies to leave the employ of the Acquired Companies. If the final judgment of a court of competent jurisdiction declares that any term or provision of this Section 6.12 is invalid or unenforceable, the parties hereto agree that the court making the determination of invalidity or unen-forceability will have the power to reduce the scope, duration, or area of the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement will be enforceable as so modified after the expiration of the time within which the judgment may be appealed.

Succinctly stated, the aforesaid provision prohibits each of the sellers, which includes Meek, his wife and daughter, as well as, two trusts established for the benefit of his grandchildren, from engaging directly or indirectly “in all or any portion of the Business as conducted as of the closing date; ...” “Business” is defined in the SPA as “the business conducted by the Acquired Companies and proposed to be conducted by the Acquired Companies.”

The business activities of Oxford Publishing were described in the Employment Agreement entered into by Oxford Publishing and Jennifer Robinson. That document indicates that Oxford Publishing was engaged in the business of publishing magazines related to the hospitality, nightclub, bar, and food and beverage industries throughout the United States, as well as, the promotion, conduct, and management of trade shows related to the same.

On October 9, 2009, QMG Acquisition, LLC, (“QMG Acquisition”), entered into an Asset Purchase Agreement, (“APA”), with Old Questex, Oxford Publishing, Oxford Communication, and others, through which [822]*822QMG Acquisition proposed to purchase predominantly all of the assets of the selling entities. On that same date, Old Ques-tex, Oxford Publishing, Oxford Communication, and the other selling entities filed voluntary Chapter 11 bankruptcy petitions in the United States Bankruptcy Court for the District of Delaware. Thereafter, on November 24, 2009, the bankruptcy court entered an order approving the APA.

At an earlier hearing, Oxford Expo questioned whether the APA actually included the SPA by which Old Questex had acquired the stock of Oxford Publishing and Oxford Communication. Questex responded by introducing into evidence Schedule 1.1(b), which it asserts was attached to the APA, thus indicating that the SPA was indeed included in the asset sale. The attorneys representing Oxford Expo and Meek indicated that Schedule 1.1(b) did not appear electronically in the Delaware bankruptcy court file. Regardless, if this schedule was attached to the APA, then the SPA was likely included in the transaction. On December 16, 2009, a Bill of Sale Assignment and Assumption Agreement was executed which effectively consummated the APA by conveying the assets from Old Questex, Oxford Publishing, Oxford Communication, and the other selling entities to QMG Acquisition.

On December 17, 2009, QMG Acquisition changed its corporate name through the Office of the Delaware Secretary of State to Questex Media Group, LLC, the party now involved in these proceedings. In January, 2010, Old Questex, Oxford Publication, and Oxford Communication changed their corporate names respectively to QMG Winddown, Inc., OPI Wind-down, Inc., and OCI Winddown, Inc.

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Oxford Expositions, LLC v. Questex Media Group, LLC (In re Oxford Expositions, LLC), 466 B.R. 818 (Miss. 2011).

466 B.R. 818 (Oxford Expositions, LLC v. Questex Media Group, LLC (In re Oxford Expositions, LLC)) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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