Motion of Debtors for Entry of an Order — Bidding Procedures — Vyaire Medical, Inc., et al. (Case No. 24-11217)

Summary

In Case 24-11217-BLS (Doc 16, filed 06/10/24), the Debtors move for an order approving bidding procedures for the sale of substantially all of their assets, authorizing a stalking horse agreement with bid protections, and approving notice, an auction and sale hearing, and assumption and assignment procedures. The motion says the Debtors, with PJT Partners LP, compiled 111 potentially interested parties and 33 received access to the CIM and VDR after signing an NDA, and that no stalking horse bidder has been selected. It lists DIP Milestones tied to the June 9, 2024 Petition Date, with a proposed Bid Deadline of July 22, 2024, Auction on July 24, 2024, and Sale Hearing on July 29, 2024, and says delay would jeopardize access to the proposed DIP Facility.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Full text

IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
)
In re:
)
Chapter 11
)
VYAIRE MEDICAL, INC., et al.,1
)
Case No. 24-11217 (___)
)
Debtors.
)
(Joint Administration Requested)
)
MOTION OF DEBTORS FOR ENTRY
OF AN ORDER (I) APPROVING BIDDING
PROCEDURES IN CONNECTION WITH THE
SALE OF SUBSTANTIALLY ALL OF THE DEBTORS’
ASSETS, (II) AUTHORIZING THE DEBTORS TO ENTER
INTO A STALKING HORSE AGREEMENT AND PROVIDE
BID PROTECTIONS, (III) APPROVING THE FORM AND MANNER
OF NOTICE THEREOF, (IV) SCHEDULING AN AUCTION AND SALE
HEARING, (V) APPROVING PROCEDURES FOR THE ASSUMPTION
AND ASSIGNMENT OF CONTRACTS, (VI) APPROVING THE SALE OF THE
DEBTORS’ ASSETS FREE AND CLEAR, AND (VII) GRANTING RELATED RELIEF
The above-captioned debtors and debtors in possession (collectively, the “Debtors” and,
each, a “Debtor”) state as follows in support of this motion:2
Preliminary Statement
1.
As described in the First Day Declaration, the Debtors commenced these chapter 11
cases to address their balance sheet and liquidity challenges.  To explore market interest in the
company, in April 2024, the Debtors, with the assistance of their proposed investment banker PJT
1
The last four digits of Debtor Vyaire Medical, Inc.’s federal tax identification number are 6495.  A complete list
of each of the Debtors in these chapter 11 cases and each such Debtor’s federal tax identification number may be
obtained
on
the
website
of
the
Debtors’
proposed
claims
and
noticing
agent
at
https://omniagentsolutions.com/Vyaire.  The location of Debtor Vyaire Medical, Inc.’s principal place of business
and the Debtors’ service address in these chapter 11 cases is 26125 North Riverwoods Boulevard, Mettawa,
Illinois, USA 60045.
2
A detailed description of the Debtors and their business, including the facts and circumstances giving rise to the
Debtors’ chapter 11 cases, is set forth in the Declaration of John Bibb, Group Chief Executive Officer of Vyaire
Medical, Inc., in Support of Chapter 11 Filing and First Day Motions (the “First Day Declaration”), filed
contemporaneously herewith and incorporated by reference herein.  Capitalized terms used but not otherwise
defined herein shall have the meanings ascribed to them in the First Day Declaration.
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2
Partners LP (“PJT”) launched a third-party marketing process (the “Marketing Process”) to solicit
proposals for one or more potential sales of all, substantially all, or any portion of the Debtors’
assets (the “Assets”) free and clear of all liens, claims, rights, interests, pledges, obligations,
restrictions,
limitations,
charges,
encumbrances,
and
other
interests
(collectively,
the “Encumbrances” and, any such sales, the “Sale Transaction(s)”), including bids exclusively
for all assets of the Debtors’ ventilation business (the “Ventilation Assets”), exclusively for all
assets of the Debtors’ respiratory diagnostics business (the “Respiratory Diagnostics Assets”), and
bids on any combination thereof, up to all of the Debtors’ assets (the “Entire Business Assets”).
2.
At the outset of the process, the Debtors, with PJT’s assistance, prepared teaser
marketing materials and, in parallel, compiled a list of 111 potentially interested parties, comprised
of 47 potential strategic and 64 potential financial partners.  On May 3, 2024, PJT commenced
market outreach and provided the teaser materials to potentially interested parties.  Additionally,
the Debtors, with PJT’s assistance, prepared detailed confidential information memoranda (each,
a “CIM”) for the Ventilation Assets and separately for the Respiratory Diagnostic Assets, and
populated a virtual data room (the “VDR”) containing significant company materials and financial
models to facilitate parties’ diligence.  The initial outreach to 111 potentially interested parties
resulted in 33 parties receiving access to the CIM and VDR after signing a non-disclosure
agreement with the Company (an “NDA”).  PJT began distributing a formal process letter on
May 13, 2024 to the interested parties that signed an NDA to inform them that the submission
deadline for indications of interest was May 31, 2024, with fulsome proposals due no later than
June 10, 2024.  To date, PJT also facilitated 6 calls between Company management and interested
parties.  On May 13, 2024, the Debtors added a form of asset purchase agreement to the VDR to
facilitate markups thereof by interested parties as part of their proposal submissions.  The Debtors
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have yet to select a stalking horse bidder for any of their Assets but commence these chapter 11
cases with multiple proposals in hand that the Debtors are actively progressing.  The Debtors seek
relief to designate one or more stalking horse bidders and offer certain protections in furtherance
of facilitating a competitive sale process.
3.
As further described in the First Day Declaration, the prepetition Marketing Process
ran in parallel with the Company’s efforts to negotiate a comprehensive strategy for these
chapter 11 cases as memorialized in the RSA and to secure debtor-in-possession financing
(the “DIP Facility”) to support the continuation of the prepetition Marketing Process on a
postpetition basis, which the Debtors believe is the most value-maximizing path forward.  The
proposed Sale Transaction(s) timeline is expedited, but thorough, to allow the Debtors to
administer these chapter 11 cases quickly and efficiently, avoid the value-destructive
consequences of a protracted stay in chapter 11, and comply with the Debtors’ requirements to
maintain access to the DIP Facility and the terms of the restructuring support agreement
(the “RSA”).
4.
Pursuant to the terms of the DIP Facility, the Debtors must satisfy certain
milestones (the “DIP Milestones”) for the sale of their Assets, including:
(a)
Within 24 hours of June 9, 2024 (the “Petition Date”), the Debtors shall file
a motion for the sale of assets pursuant to Section 363 and the bid
procedures;
(b)
Within 29 calendar days of the Petition Date, the Bankruptcy Court shall
have entered an order approving the bid procedures;
(c)
The deadline for submission of binding bids for the sale of Assets shall be
within 43 calendar days of the Petition Date, and July 22, 2024 is the
proposed Bid Deadline;
(d)
Within 45 calendar days of the Petition Date, the Debtors shall commence
an auction (if any) of the Debtors’ assets, solely to the extent the Debtors
receive competing Qualified Bids, and July 24, 2024 is the proposed date of
the Auction;
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(e)
Within 50 calendar days of the Petition Date, the Bankruptcy Court shall
have entered one or more orders approving the sale(s), and July 29, 2024 is
the proposed date of the Sale Hearing; and
(f)
Within 75 calendar days of the Petition Date, (i.e., August 19, 2024) the
Sale Transaction(s) shall be consummated.
5.
Conducting a thorough marketing and bidding process and consummating a Sale
Transaction(s) on the timeline contemplated herein is vitally important to the Debtors’ efforts to
maximize value.  Such Sale Transaction(s) would benefit not only the Debtors, but their vendors,
dedicated employees, lenders, and other key stakeholders as well.
6.
To preserve the value of the Debtors’ estates—and to offer the Debtors a chance to
increase the ultimate value provided by the monetization and disposition of their assets—the
Debtors propose the bidding procedures attached as Exhibit 1 to the Bidding Procedures Order
(the “Bidding Procedures”).  The Bidding Procedures provide substantial flexibility with respect
to the structure of any Sale Transaction(s).  Furthermore, while the Debtors have not yet selected
a stalking horse (if any) to serve as a committed buyer of some or all of the Assets (the “Stalking
Horse Bidder”), the Bidding Procedures provide the Debtors with flexibility to select a Stalking
Horse Bidder and grant Bid Protections prior to the Sale Hearing, after notice and an opportunity
to object.  The Debtors will consider all viable options in accordance with the Bidding Procedures
before determining if selling Assets will, in their business judgment, maximize value for the estate.
However, if the Bidding Procedures are not approved or there is any material delay to the sale
timeline, the Debtors’ access to the proposed DIP Facility would be jeopardized to the detriment
of the value of the estates.  Accordingly, the proposed Bidding Procedures should be approved.
7.
As set forth in further detail below, the Debtors submit that the Bidding Procedures,
and the related relief requested in this motion, are in the best interests of the Debtors’ estates and
their stakeholders.  Accordingly, the Debtors respectfully request that the Court grant this motion.
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Relief Requested
8.
The Debtors seek entry of an order, substantially in the form attached hereto as
Exhibit A (the “Bidding Procedures Order”):
34
(a)
approving the Bidding Procedure by which the Debtors will solicit and
select the highest or otherwise best offer(s) for the sale or sales of all,
substantially all, or any portion of the Assets;
(b)
approving the Debtors’ ability to designate one or more Stalking Horse
Bidder and offer Bid Protections relating thereto;
(c)
approving the manner of the notice of the Auction (as defined below), if
any, and Sale Transaction (the “Sale Notice”) attached to the Bidding
Procedures Order as Exhibit 2;
(d)
establishing certain dates and deadlines, including the deadline for when the
Debtors
must
actually
receive
binding
bids
from
parties
(the “Bid Deadline”) and Auction Date (as defined below);
(e)
approving procedures (the “Assumption and Assignment Procedures”) for
the assumption and assignment of executory contracts and leases
(the “Assigned Contracts”), including notice of proposed cure amounts
(the “Potentially Assumed and Assigned Contract Notice”), attached as
Exhibit 3 to the Bidding Procedures Order; and
(f)
approving the form of the notice of successful bidder (the “Successful
Bidder Notice”) attached to the Bidding Procedures Order as Exhibit 4; and
(g)
granting related relief.
9.
Additionally, the Debtors will seek entry of one or more orders (the “Sale Order”)
at the proposed hearing on July 29, 2024, or as soon thereafter as the Debtors may be heard (subject
to court availability) (the “Sale Hearing”), (a) authorizing and approving the Sale Transaction(s)
with the Successful Bidder(s) on the terms substantially set forth in the Successful
3
For the avoidance of doubt, the Debtors will file any proposed sale order in advance of any Sale Hearing.
4
This summary is qualified in its entirety by the Bidding Procedures attached as Exhibit 1 to the Bidding
Procedures Order.  All capitalized terms that are used in this summary but not otherwise defined herein shall have
the meanings given to such terms in the Bidding Procedures.  To the extent there are any conflicts between this
summary and the Bidding Procedures, the terms of the Bidding Procedures shall govern.
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Bid(s); (b) authorizing and approving the sale of the Debtors’ Assets free and clear of
Encumbrances to the extent set forth in an asset purchase agreement with any Successful Bidder(s);
and (c) authorizing the assumption and assignment of Executory Contracts and Unexpired Leases
as set forth in an asset purchase agreement with any Successful Bidder(s).
Jurisdiction and Venue
10.
The United States District Court for the District of Delaware has jurisdiction over
this matter pursuant to 28 U.S.C. §1334, which was referred to the United States Bankruptcy Court
for the District of Delaware (the “Court”) under 28 U.S.C. § 157 and the Amended Standing Order
of Reference from the United States District Court for the District of Delaware, dated February 29,
2012.  The Debtors confirm their consent, pursuant to rule 9013-1(f) of the Local Rules of
Bankruptcy Practice and Procedure of the United States Bankruptcy Court for the District of
Delaware (the “Local Rules”), to the entry of a final order by the Court in connection with this
motion to the extent that it is later determined that the Court, absent consent of the parties, cannot
enter final orders or judgments in connection herewith consistent with Article III of the United
States Constitution.
11.
Venue is proper pursuant to 28 U.S.C. §§ 1408 and 1409.
12.
The statutory bases for the relief requested herein are sections 105, 345, 363, 364,
and 503 of title 11 of the United States Code, 11 U.S.C. §§ 101–1532 (the “Bankruptcy Code”),
rules 2002, 6003, and 6004 of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy
Rules”), and Local Rules 2002-1, 2015-2, and 9013-1.
Background
13.
Vyaire Medical, Inc., together with its direct and indirect subsidiaries (collectively,
“Vyaire” or the “Company”), is the only global company focused exclusively on respiratory
solutions, offering capital and consumable products, and related services, for the diagnosis,
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treatment, and monitoring of various breathing conditions.  Vyaire, building on over seventy years
of legacy product offerings, has streamlined its corporate structure around two operationally lean
ventilation and respiratory diagnostics business units to support its state-of-the-art product line and
services.  Headquartered in Mettawa, Illinois, Vyaire operates in more than 24 offices, three
manufacturing facilities, and employs over 955 individuals in 18 countries.  The Company has a
global customer base, generating 40% of its sales internationally.  Its customers are typically the
hospitals, health centers, and private practices delivering life-enhancing products and services to
their patients.
14.
On the Petition Date, Vyaire Medical, Inc. and certain of its subsidiaries filed a
voluntary petition for relief under chapter 11 of the Bankruptcy Code.  The Debtors are operating
their business and managing their property as debtors in possession pursuant to sections 1107(a)
and 1108 of the Bankruptcy Code.  Concurrently with the filing of this motion, the Debtors filed
a motion requesting procedural consolidation and joint administration of these chapter 11 cases
pursuant to Bankruptcy Rule 1015(b).  No request for the appointment of a trustee or examiner has
been made in these chapter 11 cases, and no official committees have been appointed or
designated.
Proposed Sale Process
I.
The Bidding Procedures.
15.
The Debtors seek approval of the Bidding Procedures to establish an open process
for the solicitation, receipt, and evaluation of bids in a fair, accessible, and expeditious manner.
The Bidding Procedures facilitate the continuation of the prepetition Marketing Process to solicit
interest in a sale of the Assets, which is a process the Debtors have been diligently progressing
through with the assistance of PJT.
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16.
The timeline set forth in the Bidding Procedures is calculated to balance the need
to provide adequate notice to parties in interest and any person or entity interested in purchasing
the Assets (a “Potential Bidder”) with the need to run an efficient sale process.  The Bidding
Procedures are designed to generate the highest or otherwise best available recoveries to the
Debtors’
stakeholders
by
encouraging
prospective
bidders
to
submit
competitive,
value-maximizing bids.  The Debtors believe that the Bidding Procedures and the timeline set forth
therein are in the best interests of the Debtors’ estates, will establish the extent of the market for
the Debtors’ Assets, and provide interested parties with sufficient opportunity to participate.
Because the Bidding Procedures are attached as Exhibit 1 to the Bidding Procedures Order, they
are not restated in their entirety herein, however, a summary of the Bidding Procedures is provided
below.
17.
Importantly, the Bidding Procedures recognize the Debtors’ fiduciary obligations
to maximize value and preserve the Debtors’ right to modify the Bidding Procedures in accordance
with its terms as necessary or appropriate to maximize value for their estates.
II.
The Proposed Schedule.
18.
Below is a summary of the proposed key dates and deadlines showing an illustrative
timeline, assuming a Bidding Procedures Hearing is held on July 1, 2024.5
Event
Date
Description
IOI Deadline
July 1, 2024, at 4:00 p.m.,
prevailing Eastern Time
Deadline for submitting a non-binding
Indication of Interest.
Stalking Horse Bidder
Designation
July 1, 2024
Deadline by which the Debtors must
designate one or more Stalking Horse
Bidder (if the Debtors so choose to designate
a Stalking Horse Bidder).
5
This timeline is illustrative and subject in all respects to the Court’s availability.
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Event
Date
Description
Bidding Procedures Hearing
July 1, 2024 (subject to the
Court’s availability)
Deadline for the Court to enter the Bidding
Procedures Order.
Stalking Horse Objection
Deadline
No later than four (4) days
after the filing of the
Stalking Horse Notice (as
defined below), at
4:00 p.m., prevailing
Eastern Time
If any Stalking Horse Bidder is designated,
deadline by which objections to the bid
protections set forth in the Stalking Horse
Notice or the form of Stalking Horse Order
must be filed with the Court and served so as
to be actually received by the appropriate
notice parties.
Deadline to Serve the Sale
Notice
July 3, 2024 (or as soon as
reasonably practicable
thereafter)
Deadline by which the Debtors shall serve
the Sale Notice by first-class mail upon the
parties specified in this Motion
Deadline to Serve the
Potentially Assumed and
Assigned Contract Notice
July 3, 2024 (or as soon as
reasonably practicable
thereafter)
Deadline by which the Debtors shall file and
serve the Potentially Assumed and Assigned
Contract Notice
Assumption and Assignment
Objection Deadline
Fourteen (14) days
following service of any
notice of proposed
assumption and
assignment.
Deadline by which objections to any
proposed assumption and assignment related
to the sale must be filed with the Court and
served so as to be actually received by the
appropriate notice parties.
Deadline to Publish the
Publication Notice
July 5, 2024 (or as soon as
reasonably practicable
thereafter)
Deadline by which the Debtors shall cause
the Publication Note to be published in The
New York Times (national edition).
Sale Transaction Objection
Deadline
July 22, 2024, at 4:00 p.m.,
prevailing Eastern Time
Deadline by which general objections to the
sale must be filed with the Court and served
so as to be actually received by the
appropriate
notice
parties
(the “Sale
Transaction Objection Deadline”).
Bid Deadline
July 22, 2024, at 5:00 p.m.,
prevailing Eastern Time
Deadline for when the Debtors must
actually receive binding bids from parties.
Auction (if any)
July 24, 2024, at
10:00 a.m., prevailing
Eastern Time
Date for when an Auction for the Assets will
be conducted, if necessary.  The Auction
will be conducted at the office of Kirkland &
Ellis LLP, 333 West Wolf Point Plaza,
Chicago, IL 60654 or via remote video at the
Debtors’ election.
Deadline to file Successful
Bidder Notice
July 24, 2024 (or as soon as
reasonably practicable after
the close of the Auction)
Deadline by which the Debtors will file with
the Court the Successful Bidder Notice.
Post-Auction Objection
Deadline
July 25, 2024, at 4:00 p.m.,
prevailing Eastern Time
Deadline by which any objections to the
conduct of the Auction or the Successful
Bidder, if any, must be made.
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Event
Date
Description
Sale Transaction Reply
Deadline
July 26, 2024, at 4:00 p.m.,
prevailing Eastern Time
Deadline for the Debtors and any other
parties supporting the Sale Transaction to
file replies to Sale Transaction Objections or
statements
in
support
of
the
Sale
Transaction.
Sale Hearing
July 29, 2024, at
10:00 a.m., prevailing
Eastern Time (subject to
the Court’s availability)
Date for a hearing at which the Court will
consider approving the sale of the Assets to
one or more prospective purchasers,
pursuant to a sale order.
Sale Closing
August 19, 2024
Deadline to consummate Sale Transaction
19.
The Debtors believe that this timeline, as required to maintain liquidity through the
cases, provides them with an opportunity to continue to conduct a thorough marketing process for
the assets.  In light of the Company’s prepetition efforts to date—reaching out to more than
100 parties; preparing a process letter and multiple detailed CIMs, populating a VDR with
extensive information, and providing access to such materials to potentially interested parties that
signed nondisclosure agreements; facilitating management calls, responding to further diligence
requests, and answering other questions from potentially interested parties; and reviewing and
revaluating the terms of the multiple IOIs received—the Debtors have determined that the
proposed schedule is in the best interests of the Debtors’ estates, will assist in establishing whether
and to what extent a market exists for the assets, and provide interested parties with sufficient
opportunity to participate in any sale transaction and ultimately, will result in the highest and best
bid for the underlying assets under the circumstances.
III.
The Bidding Procedures.
20.
To optimally and expeditiously solicit, receive, and evaluate bids in a fair and
accessible manner, the Debtors have developed and proposed the Bidding Procedures, attached as
Exhibit 1 to the Bidding Procedures Order.  The proposed Bidding Procedures are designed to
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permit a fair, efficient, competitive, and value-maximizing auction process for the Debtors’ assets,
consistent with the timeline of these chapter 11 cases.
21.
The following describes the salient components of the Bidding Procedures and
discloses certain information required pursuant to Local Rule 6004-1:6
(a)
Indication of Interest Deadline.  In order to be eligible to submit a Bid,
Acceptable Bidders will first be required to submit a non-binding Indication
of Interest on or before July 1, 2024, at 4:00 p.m., (prevailing Eastern
Time) (as may be extended in accordance with the terms of the Bidding
Procedures Order and these Bidding Procedures, the “IOI Deadline”), to the
Debtors and their proposed investment banker, PJT Partners LP, 280 Park
Avenue, New York, New York 10017, Attn:  Michael Schlappig
(schlappig@pjtpartners.com), Jaimie Baird (baird@pjtpartners.com), and
Dylan Friesner (friesner@pjtpartners.com); provided, that, with the consent
of the Required DIP Lenders (as defined in the DIP Order), the Debtors may
extend the IOI Deadline or waive the requirement of an Indication of
Interest for one or more Acceptable Bidders upon request, without further
order of the Court; provided that the Debtors shall file a notice with the
Court if the Debtors decide, subject to the consent of the Required DIP
Lenders, to extend the deadline by which IOIs for a Sale Transaction must
be submitted for all parties; provided further that if the Debtors do not
receive any indications of interests by the IOI deadline that (individually or
in the aggregate), in the good faith estimate of the Debtors and their
advisors, and with the consent of the Required DIP Lenders, are reasonably
likely to lead to Bids that (individually or in the aggregate) satisfies the
Minimum Bid Requirement, then the Debtors shall terminate the sale
process and cancel the Auction.  If the Debtors extend the IOI Deadline as
to all parties, the Debtors will promptly notify all Acceptable Bidders and
file a notice of such extension on the Court’s docket.  The Debtors will then
notify each Acceptable Bidder whether its Indication of Interest satisfies the
requirements set forth in the Motion and that such bidder is qualified to
submit a Bid that reflects such Indication of Interest.
(i)
Unless otherwise determined by the Debtors, each Indication of
Interest must include:
(A)
a letter outlining the Acceptable Bidder’s offer, form(s) of
consideration, and any conditions precedent (other than the
sufficiency of financing) and stating that the Acceptable
6
The following summary is provided for convenience purposes only.  To the extent any of the terms described
below are inconsistent with the Bidding Procedures, the Bidding Procedures control in all respects.  Capitalized
terms used in this summary but not defined herein shall have the meanings ascribed to them in the Bidding
Procedures.
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Bidder is prepared to work in good faith to finalize a binding
proposal by the Bid Deadline;
(B)
written evidence acceptable to the Debtors demonstrating
financial wherewithal and a description of any corporate or
governmental authorizations necessary to consummate the
proposed Transaction;
(C)
the identification of the ultimate beneficial owners of the
Acceptable Bidder;
(D)
a description of all remaining due diligence requirements
and any material conditions to be satisfied prior to
submission of a Bid;
(E)
the identification of any person or entity who may provide
debt or equity financing for the purchase and any material
conditions to be satisfied in connection with such financing;
(F)
to the extent known at the time of the Indication of Interest,
any obligations related to employees of the Debtors the
Acceptable Bidder may assume; and
(G)
confirmation that the Acceptable Bidder consents to the
jurisdiction of the Court and agrees to be bound by the
Bidding Procedures.
(b)
Bid Requirements (Local Bankr. R. 6004-1(c)(i)(A), (B)).  Any bid by
Potential Bidders that have delivered executed confidentiality agreements
(each, an “Acceptable Bidder”) must be submitted in writing and satisfy the
following requirements, in each case, to the satisfaction of the Debtors:
(i)
Purpose.  All of the Debtors’ right, title, and interest in and to the
assets (whether some or all of the Ventilation Assets, the
Respiratory Diagnostics Assets, or the Entire Business Assets),
subject thereto shall be sold free and clear of any pledges, liens,
security interests, encumbrances, claims, charges, options and
interests thereon (collectively, the “Interests”), subject only to the
Assumed Liabilities and Permitted Encumbrances (each as defined
in the Modified APA (as defined below) of the applicable Successful
Bidder), to the maximum extent permitted by section 363 of the
Bankruptcy Code, with such Interests to attach to the net proceeds
of the sale(s) of the assets with the same validity, force, effect, and
priority as such Interests applied against the assets as of the Petition
Date, subject to any rights, claims, and defenses of the Debtors.
(ii)
Executed Agreement.  Each Bid must include (a) an offer letter,
signed by an authorized representative of the Bidder, pursuant to
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which the Bidder offers to consummate the Sale Transaction
contemplated by such Bid on the terms set forth in the Modified
APA together with (b) an asset purchase agreement, which must be
based on the Form APA supplied by the Debtors in a designated data
room, or, if applicable, the Stalking Horse APA (as defined below),
signed by an authorized representative of the Bidder, pursuant to
which the Bidder agrees to consummate such Transaction for the
assets referenced therein (together with all ancillary documents and
schedules contemplated thereby, a “Modified APA”).  A Bid must
also include a redline of the Modified APA marked against the Form
APA (and all applicable ancillary documents and schedules
contemplated thereby) to show all changes requested by the Bidder
with respect to the Form APA.  Each Modified APA must provide a
commitment to close the Sale Transaction contemplated by such
Modified APA within a time frame acceptable to the Debtors after
all closing conditions set forth in such Modified APA are met (other
than those which are to be satisfied at the closing of the transactions
contemplated by such Modified APA).
(iii)
Good Faith Deposit.  Each Bid must be accompanied by a cash
deposit in the amount of ten percent (10%) of the cash purchase
price contained in the Modified APA, before any adjustments to the
purchase price, to an escrow account to be identified and established
by the Debtors (the “Good Faith Deposit”).  To the extent a
Qualified Bid is modified before, during, or after the Auction in any
manner that increases the cash purchase price contemplated by such
Qualified Bid, the Debtors reserve the right to require that such
Qualified Bidder increase its Good Faith Deposit so that it equals
ten percent (10%) of the increased purchase price.
(iv)
Good Faith Offer.  Each Bid must represent an irrevocable, binding,
good faith, and bona fide offer to purchase some or all of the assets
identified in such Bid if such Bid is selected as the Successful Bid
or the Back-Up Bid (each as defined herein).
(v)
Minimum Bid Requirement.  Each Bid for all or substantially all of
the Debtors’ Assets must consist of consideration to be paid at the
closing of the transactions contemplated by the Modified APA in an
amount equal to at least an amount that would satisfy the minimum
bid requirement; provided, however, that any Bid for less than
substantially all of the Debtors’ Assets will not be subject to any
minimum bid amount threshold.  Each Bid must set forth the total
purchase price for such Bid.
Notwithstanding the foregoing, if the aggregate cash consideration
for the Debtors’ Assets, whether consisting of one Bid or a series of
Bids for either some, all, or substantially all of the Debtors’ Assets
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that would be payable to the DIP Lenders does not meet or exceed
$140,000,000 (the “Minimum Bid Requirement”), then the Debtors
shall terminate the sale process and cancel the Auction.
(vi)
Joint Bids.  The Debtors, with the consent of the Required DIP
Lenders, will be authorized to approve joint Bids in their reasonable
discretion on a case-by-case basis.
(vii)
Purchased Assets and Assumed Liabilities.  Each Bid must clearly
provide which of the assets the Bidder seeks to acquire (whether
some or all of the Ventilation Assets, the Respiratory Diagnostics
Assets, or the Entire Business Assets), and which of the Assumed
Liabilities the Bidder agrees to assume.  With respect to any bids for
less than all or substantially all of the Debtors’ assets, the Debtors
reserve the right to request an allocation of the purchase price among
the assets the Bidder seeks to acquire and the Assumed Liabilities
the Bidder agrees to assume.
(viii)
Designation of Assigned Contracts and Leases.  Subject to the
terms of the Modified APA, each Bid must identify any and all
executory contracts and unexpired leases of the Debtors that the
Bidder wishes to be assumed and assigned to the Bidder at the
closing of the Sale Transaction contemplated by such Bid.
(ix)
Corporate Authority.  Each Bid must include written evidence
reasonably acceptable to the Debtors demonstrating appropriate
corporate or similar governance authorization of the Bidder to
consummate the proposed Sale Transaction; provided that, if the
Bidder is an entity specially formed for the purpose of effectuating
the Sale Transaction, then the Bidder must furnish written evidence
reasonably acceptable to the Debtors of the approval of the Sale
Transaction by the equity holder(s) of such Bidder and any other
governing body of the Bidder that is required to approve the Sale
Transaction.
(x)
Disclosure of Identity of Bidder.  Each Bid must fully disclose the
identity of each entity (including any equity owners, sponsors, or
co-investors) that will be bidding for or purchasing the assets or
otherwise directly or indirectly participating in connection with such
Bid.
(xi)
Proof of Financial Ability to Perform.  Each Bid must include
written evidence that the Debtors conclude demonstrates that the
Bidder has the necessary financial ability to (i) timely close the Sale
Transaction contemplated by such Bid within a time frame
acceptable to the Debtors after all closing conditions set forth in the
Modified APA are met and (ii) provide adequate assurance of future
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performance under all contracts to be assumed and assigned in such
Sale Transaction.  Such information must include, inter alia, the
following:
(A)
Contact names and numbers for verification of financing
sources, if any;
(B)
Written evidence of the Bidder’s internal financial resources
and ability to finance its Bid with cash on hand, available
lines of credit, uncalled capital commitments or otherwise
available funds (including through the posting of an
irrevocable letter of credit or customary debt or equity
financing commitment letters that comply with the
requirements
of
this
sub-paragraph 21(a)(xi)(B)
or
sub-paragraph 21(a)(xi)(C) below, as applicable, in each
case, from reputable financial institutions) in an aggregate
amount sufficient to pay the cash purchase price
contemplated by such Bid, to pay for cure costs for contracts
to be assumed and assigned in the Sale Transaction, and to
satisfy all other obligations of the Bidder pursuant to the
Modified APA (“Bidder’s Obligations”); provided that, if
the Bidder is an entity that is specially formed for the
purpose of effectuating the Sale Transaction or if the Bidder
intends to raise any equity financing to fund any portion of
Bidder’s Obligations, then the Bidder must furnish to the
Debtors a fully executed and effective equity commitment
letter or guarantee (“Bidder Support”) (which Bidder
Support shall remain outstanding until at least sixty (60)
days after the date of entry of the Sale Order (or the “outside
date” in the Modified APA, if later), subject to a potential
further extension as set forth herein or therein) from its
equity holders or other affiliated entities with respect to the
portion of Bidder’s Obligations that are not to be paid with
cash on hand (which Bidder Support may not be subject to
any conditions other than the satisfaction of the conditions
set forth in the Modified APA and shall include third party
beneficiary language in favor of the Debtors entitling the
Debtors to enforce such Bidder Support directly against the
counterparties) and provide written evidence that its equity
holders or other affiliated entities providing the Bidder
Support have the resources and ability to finance such
portion of the Bidder’s Obligations;
(C)
Without limiting the requirements of sub-paragraph
21(a)(xi)(B) above, if the Bidder intends to raise any debt
financing to fund any portion of the Bidder’s Obligations,
the Bid must include fully executed and effective debt
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financing commitment letter(s), which letter(s) shall (i) not
be subject to any internal approvals, credit committee
approvals or diligence conditions, (ii) be in customary form,
and (iii) remain outstanding until sixty (60) days after the
date of entry of the Sale Order (subject to a potential further
extension as set forth herein); and
(D)
Any such other form of financial disclosure or credit-quality
support information or enhancement reasonably requested
by the Debtors demonstrating that such Bidder (or, if the
Bidder is an entity formed for the purpose of making a Bid,
its Bidder Support) has the ability to close the Sale
Transaction on the terms set forth in the Modified APA.
(xii)
Adherence to Bidding Procedures.  By submitting its Bid, each
Bidder is agreeing to abide by and honor the terms of these Bidding
Procedures and agrees not to submit a Bid or seek to reopen the
Auction after conclusion of the Auction.
(xiii)
Regulatory and Third-Party Approvals.  Each Bid must set forth
each government, licensing, regulatory, and other third-party
approval or filing required to be obtained or made by the Bidder or
its Bidder Support, and each waiting period required to have expired
or terminated, for the Bidder to consummate the Sale Transaction,
and the time period within which the Bidder expects to receive such
approvals, to make such filings or such waiting periods to expire or
terminate (and in the case that receipt of any such approval, the
making of any such filing, or the expiration or termination of any
such waiting period is expected to take more than thirty (30) days
following execution and delivery of the Modified APA, those
actions the Bidder will take to ensure receipt of such approval(s),
the making of such filing(s) or the expiration or termination of such
waiting period(s) as promptly as possible).
(xiv)
Contact Information and Affiliates.  Each Bid must provide the
contact information for the Bidder and full disclosure of any
affiliates of the Bidder.
(xv)
Contingencies and Other Provisions.  Each Bid shall not contain
any escrow arrangements, indemnities, or adjustments to the
purchase price.  Without limiting the immediately preceding
sentence, each Bid shall not include any conditions or contingencies
relating to financing (including, for the avoidance of doubt, any
conditionality, or limitations on specific performance, relating to
any financing contemplated by sub-paragraph 21(a)(xi)(C) above),
internal approvals, or the absence of any material adverse effect.
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(xvi)
Contingencies Regarding Due Diligence.  Each Bid shall not
include any conditions or contingencies relating to Due Diligence.
(xvii) Acknowledgement of Independent Review.  Each Bid must include
a written acknowledgement and representation that the Bidder:
(i) has had an opportunity to conduct any and all due diligence prior
to making its Bid; (ii) has relied solely upon its own independent
review, investigation, and/or inspection of any documents and/or the
assets in making its Bid; and (iii) did not rely upon any written or
oral statements, representations, promises, warranties, or guaranties,
express, implied, statutory or otherwise, regarding the assets, the
financial performance of the assets or the physical condition of the
assets, or the accuracy or completeness of any information provided
in connection therewith or the Auction, except as expressly stated in
these Bidding Procedures or the Modified APA.
(xviii) Irrevocable.  Each Bid must be irrevocable unless and until the
Debtors accept a higher Bid and such Bidder is not selected as the
Back-Up Bidder;
7 provided that if a Bid is accepted as the Successful
Bid
8 or the Back-Up Bid,
9 such Bid shall continue to remain
irrevocable, subject to the terms and conditions of these Bidding
Procedures.
(xix)
Back-Up Bid.  Each Bid shall provide that the Bidder will serve as
back-up bidder if the Bidder’s Bid is selected as the next highest and
best bid after the Successful Bid (as defined below) and will remain
irrevocable in accordance with the terms and conditions of these
Bidding Procedures (the “Back-Up Bid”).
(xx)
Consent to Jurisdiction.  Each Bidder and its Bidder Support
(if applicable) must (i) consent to the jurisdiction of the Bankruptcy
Court to enter an order or orders, which shall be binding in all
respects, in any way related to the Debtors, these Chapter 11 Cases,
the Bidding Procedures, the Auction, any Sale Transaction, any
Modified APA, or the construction and enforcement of documents
relating to any Sale Transaction, (ii) waive any right to a jury trial
in connection with any disputes relating to the Debtors, these
Chapter 11 Cases, the Bidding Procedures, the Auction, any Sale
7
“Back-Up Bidder” means the Qualified Bidder(s) with the next highest and otherwise best Bid to the Successful
Bid(s) at the Auction for the applicable assets, as determined by the Debtors, in the exercise of their reasonable
business judgment will be designated as a back-up bidder.
8
“Successful Bid” means the bid the Debtors shall select that is the best Qualified Bid.
9
“Back-Up Bid” means the Back-Up Bidder(s) initial Qualified Bid(s) (or if a Back-Up Bidder submitted one or
more Overbids at the Auction, such Back-Up Bidder’s final Overbid).
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Transaction, any Modified APA, or the construction and
enforcement of documents relating to any Sale Transaction, and
(iii) consent to the entry of a final order or judgment in any way
related to the Debtors, these Chapter 11 Cases, the Bidding
Procedures, the Auction, any Modified APA, any Sale Transaction,
or the construction and enforcement of documents relating to any
Sale Transaction if it is determined that the Bankruptcy Court would
lack Article III jurisdiction to enter such a final order or judgment
absent the consent of the parties.
(xxi)
Disclaimer of Break-Up Fees and Expense Reimbursement.
Except as otherwise provided below with respect to a potential
Stalking Horse Bidder (as defined below), each Bid must not, and
must acknowledge that such Bid shall not, entitle the Bidder to any
break-up fee, termination fee or similar type of payment,
compensation or expense reimbursement (including legal fees) and,
by submitting the Bid, the Bidder waives the right to pursue any
administrative expense claim (including under a theory of
substantial contribution) under 11 U.S.C. § 503 related in any way
to the submission of its Bid or participation in any Auction.
(xxii) Acknowledgement of Remedies.  Each Bid shall include a written
acknowledgement from the Bidder that, in the event of the Bidders’
breach of, or failure to perform under, the Modified APA, the
Debtors and their estates shall be entitled to retain the Good Faith
Deposit as part of the damages resulting to the Debtors and their
estates for such breach or failure to perform, and pursue all other
available legal and equitable remedies.
(xxiii) Acknowledgement of No Collusion.  Each Bid shall include a
written acknowledgement from the Bidder that it has not (i) engaged
in any collusion with respect to the bidding or sale of any of the
assets described herein or (ii) taken any other action to prevent a
transparent and competitive auction process.
(c)
The Auction (Local Bankr. R. 6004-1(c)(ii)).  If one or more Qualified
Bids that, individually or in the aggregate, satisfy the Minimum Bid
Requirement are received by the Bid Deadline, the Debtors will conduct an
auction (the “Auction”) to determine, with the consent of the Required DIP
Lenders, the highest and best Qualified Bid.  The Auction, if any, will
commence on or before July 24, 2024, at 10:00 a.m., (prevailing Eastern
Time) via remote video at the Debtors’ election (the “Auction Date”).  If
held, the Auction proceedings will be transcribed.
(d)
Bidding Increments (Local Bankr. R. 6004-1(c)(i)(C)).  Any Overbid for
all or substantially all of the Debtors’ Assets after and above the Auction
Baseline Bid shall be made in increments valued at not less than $1,000,000.
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The Debtors shall determine, with the consent of the Required DIP Lenders,
the minimum bid increments for any particular Asset or subset of Assets if
applicable.  Any credit bid of a DIP Lender, DIP Agent, or Prepetition
Agent shall be treated as the same as cash (such that each dollar of such
obligations that is credit bid shall be treated the same as a dollar of cash).
(e)
Back-Up Bidder (Local Bankr. R. 6004-1(c)(i)(E)).  If a Successful Bid
is terminated for any reason prior to consummation of the Sale Transaction
contemplated thereby (a “Successful Bid Failure”), the Debtors will be
authorized, without further order of the Bankruptcy Court, subject to the
consent of the Required DIP Lenders, to consummate the Sale Transaction
contemplated by the applicable Back-Up Bid with the applicable Back-Up
Bidder; provided that the Debtors shall provide prompt notice of such
Successful Bid Failure and the Debtors shall post a notice on the docket of
the Chapter 11 Cases regarding the Successful Bid Failure and the
consummation of such Sale Transaction with the applicable Back-Up
Bidder.  In the case of a Successful Bid Failure, the Successful Bidder’s
deposit shall be forfeited to the Debtors or returned to the applicable
Successful Bidder in accordance with the terms of the terminated Modified
APA.  The Debtors, on their behalf and on behalf of each of their respective
estates, specifically reserve the right to seek all available damages,
including specific performance, from any defaulting Successful Bidder
(including any Back-Up Bidder following a Successful Bid Failure) in
accordance with the terms of the Bidding Procedures, the Bidding
Procedures Order, or the Modified APA, as applicable.
(f)
Highest or Otherwise Best Bid.  The determination of the highest and best
Qualified Bid shall take into account any factors the Debtors, with the
consent of the Required DIP Lenders, and in their reasonable business
judgment deem relevant to the value and certainty of the Qualified Bid to
the Debtors’ estates and may include, but are not limited to, the following:
(i) the amount and nature of the consideration; (ii) the number, type, and
nature of any changes to the Form APA requested by each Bidder, including
the assets acquired; (iii) the extent to which such modifications are likely to
delay closing of the Sale Transaction contemplated by such Qualified Bid
and the cost to the Debtors of such modifications or delay; (iv) the total
consideration to be received by the Debtors; (v) any contingencies or
conditions to closing the Sale Transaction contemplated by such Qualified
Bid; (vi) the likelihood of the Bidder’s ability to close the Sale Transaction
contemplated by such Qualified Bid and the timing thereof; (vii) the tax
consequences of such Qualified Bid; and (viii) any other qualitative or
quantitative factor that the Debtors deem reasonably appropriate under the
circumstances (collectively, the “Bid Assessment Criteria”).
(g)
Reservation of Rights (Local Bankr. R. 6004-1(c)(i)(D)).  Except as
otherwise provided in the Bidding Procedures Order, the Debtors further
reserve the right as the Debtors may reasonably determine to be in the best
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interest of the Debtors’ estates, subject to the consent of the Required DIP
Lenders, to: (i) determine which Bidders are Qualified Bidders;
(ii) determine which Bids are Qualified Bids; provided that, for the
avoidance of doubt, a Bid or series of Bids shall not constitute a “Qualified
Bid” unless such Bid(s) (a) satisfies the Minimum Bid Requirement and
(b) contemplates that the aggregate cash sale proceeds of such Bid(s) shall
be indefeasibly paid to the DIP Lenders immediately upon the closing of
the Sale Transaction(s) subject to deductions for wind-down costs and
expenses required to be paid pursuant to the DIP Orders and the RSA (which
such deducted amounts shall be paid to the Debtors) (iii) determine which
Qualified Bid (or Qualified Bids) is the highest and best bid and which is
the next highest and best bid; (iv) reject any Bid that is (a) inadequate or
insufficient, (b) not in conformity with the requirements of the Bidding
Procedures or the requirements of the Bankruptcy Code or (c) contrary to
the best interests of the Debtors and their estates; (v) impose additional
terms and conditions with respect to all potential bidders; (vii) make non-
material modifications to the Bidding Procedures; and (viii) implement
additional procedural rules with respect to the conduct of the Auction that
the Debtors determine (together with the Bidding Procedures, the “Auction
Rules”), in their reasonable business judgment, will better promote the goals
of the bidding process and are not inconsistent with any Bankruptcy Court
order, the Bankruptcy Code, or any rights of the Prepetition Agents under
the Bidding Procedures; provided that nothing herein shall limit any party
in interest’s right to file an objection with the Bankruptcy Court with respect
to any Auction Rules (other than the Bidding Procedures).
(h)
Potential Stalking Horse (Local Bankr. R. 6004-1(c)(i)(C).  The Debtors
may, pursuant to these Bidding Procedures and subject to the consent of the
Required DIP Lenders, (i) designate one or more Qualified Bidders that
submit a Qualified Bid for all or any portion of the Assets a stalking horse
bidder (the “Stalking Horse Bidder”), whose Qualified Bid shall serve as
the stalking horse bid (the “Stalking Horse Bid”), and (ii) execute, subject
to higher or otherwise better offers consistent with these Bidding
Procedures, one or more purchase agreements memorializing the proposed
transaction set forth in the Stalking Horse Bid (a “Stalking Horse APA”),
which may include a break-up fee of or no more than 3.0% of the total cash
consideration payable under such Stalking Horse APA, inclusive of any
expense reimbursement (the “Bid Protections”) on or before July 1, 2024
(the “Stalking Horse Bidder Designation”).  To the extent the Debtors,
subject to the consent of the Required DIP Lenders, designate more than
one Stalking Horse Bidder pursuant to the Bidding Procedures, no two
Stalking Horse Bidders will be designated with respect to any of the same
Assets.  The Debtors shall not pay Bid Protections to any Stalking Horse
Bidder on account of the portion of the purchase price of such Bid that is a
credit bid, assumption of liabilities, or other non-cash (or cash-equivalent)
consideration, nor provide any Bid Protections to an insider or affiliate of
the Debtors.
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(i)
To the extent the Debtors, consistent with these Bidding Procedures,
determine, subject to the consent of the Required DIP Lenders, to offer Bid
Protections to any Stalking Horse Bidder, the Debtors shall disclose such
Bid Protections in a corresponding notice designation such Stalking Horse
Bidder (the “Stalking Horse Notice”).  A Stalking Horse Notice, if filed,
shall also include (a) the identity of the Stalking Horse Bidder; (b) the
amount of the Stalking Horse Bid; (c) a copy of the Stalking Horse APA;
(d) the proposed Bid Protections to be provided to the Stalking Horse
Bidder; and (e) a declaration in support of the proposed Bid Protections,
which includes whether the Stalking Horse Bidder has any connection with
the Debtors other than that which arises from the Stalking Horse Bid.  Any
objection to (i) the Bid Protections set forth in the Stalking Horse Notice or
(ii) the designation of the Stalking Horse Bidder (a “Stalking Horse
Objection”), shall be filed no later than four (4) days after the filing of
the Stalking Horse Notice at 4:00 p.m. (prevailing Eastern Time).  If a
timely Stalking Horse Objection is filed, the Debtors are authorized to seek
an expedited hearing with respect to the Stalking Horse Objection on not
less than three (3) calendar days’ notice.  Absent any timeline Stalking
Horse Objection, the Court may approve the Bid Protections set forth in the
Stalking Horse Notice and the designation of the Stalking Horse Bidder
without further hearing.
If the designation of a Stalking Horse Bidder is approved, any Modified
APA may be based on the Stalking Horse APA.
22.
Importantly, the Bidding Procedures recognize and comply with the Debtors’
fiduciary obligations to maximize sale value, and, as such, do not impair the Debtors’ ability to
consider all qualified bid proposals and, as noted, preserve the Debtors’ right to modify the Bidding
Procedures as necessary or appropriate to maximize value for the Debtors’ estates.
IV.
Form and Manner of Sale Notice.
23.
Upon entry of the Bidding Procedures Order, or as soon as reasonably practicable
thereafter, the Debtors will cause the Sale Notice, substantially in the form attached as Exhibit 2
to the Bidding Procedures Order, to be served on the following parties or their respective counsel,
if known:  (a) the U.S. Trustee; (b) counterparties to the executory contracts and unexpired leases
of nonresidential property (the “Contract Counterparties”), if known; (c) all parties who are known
or reasonably believed, after reasonable inquiry, to have asserted any lien, encumbrance, claim, or
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interest in the assets; (d) the Internal Revenue Service; (e) all applicable state and local taxing
authorities; (f) all the Debtors’ other creditors; (g) all of the Debtors’ equity holders; (h) each
governmental agency that is an interested party with respect to the proposed Sale Transaction; and
(i) all parties that have requested or that are required to receive notice of the proposed Sale
Transaction pursuant to Bankruptcy Rule 2002.
24.
Within four (4) business days after entry of the Bidding Procedures Order, or as
soon as reasonably practicable thereafter, the Debtors will provide notice of the Sale Hearing
through
publication
of
the
Sale
Notice
on
their
restructuring
website,
https://omniagentsolutions.com/Vyaire (the “Case Website”) and will also publish the Sale Notice,
with any modifications necessary for ease of publication (the “Publication Notice”), once in
The New York Times (national edition), to provide notice to any other potential interested parties.
25.
The Debtors respectfully submit that the Sale Notice and Publication Notice are
reasonably calculated to provide all interested parties with timely and proper notice of the proposed
Sale Transaction, including:  (a) the date, time, and place of the Auction; (b) the Bidding
Procedures; (c) the deadline for filing objections to the Sale Transaction and entry of the Sale
Order, and the date, time, and place of the Sale Hearing; (d) a description of the Sale Transaction
as being free and clear of liens, claims, interests, and other encumbrances, with all such liens,
claims, interests, and other encumbrances attaching with the same validity and priority to the Sale
Transaction proceeds; and (f) notice of the proposed assumption and assignment of the Contracts
to the Successful Bidder arising from the Auction, if any.
26.
The Debtors further submit that notice of this motion and the related hearing to
consider entry of the Bidding Procedures Order, coupled with service of the Sale Notice and the
Cure Notice substantially in the form attached as Exhibit 3 to the Bidding Procedures Order (where
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applicable), as provided for herein, constitutes good and adequate notice of the Sale Transaction
and the proceedings with respect thereto in compliance with, and satisfaction of, the applicable
requirements of Bankruptcy Rule 2002.  The Debtors propose that no other or further notice of the
Sale Transaction shall be required.  Accordingly, the Debtors request that this Court approve the
form and manner of the Sale Notice.
V.
Form and Manner of the Successful Bidder Notice.
27.
The Debtors are seeking approval of the form of the Successful Bidder Notice, as
attached to the Bidding Procedures Order as Exhibit 4, to be filed and served by
July 24, 2024, or as soon as reasonably practicable after the close of the Auction.  The Debtors
respectfully submit that the Successful Bidder Notice is reasonably calculated to provide all
interested parties with timely and proper notice of the proposed Sale Transaction, including:
(a) the identity of the Successful Bidder and any Back-Up Bidder; and (b) the amount of the
Successful Bid and any Back-Up Bids.  The Debtors will also publish the Successful Bidder Notice
on the Case Website.
VI.
Summary of the Assumption and Assignment Procedures.
28.
The Debtors seek entry of the Assumption and Assignment Procedures to facilitate
the fair and orderly assumption and assignment of the Assigned Contracts in connection with the
Sale Transactions.  Because the Bidding Procedures Order sets forth the Assumption and
Assignment Procedures in detail, they are not restated herein.  Generally, however, the Assumption
and Assignment Procedures:  (a) outline the process by which the Debtors will serve notice to all
counterparties to the Assigned Contracts regarding the proposed assumption and assignment and
related cure amounts, if any, informing such parties of their right and the procedures to object
thereto and (b) establish objection and other relevant deadlines and the manner for resolving
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disputes relating to the assumption and assignment of the Assigned Contracts to the extent
necessary.
Basis for Relief
A.
The Relief Sought in the Bidding Procedures Order Is in the Best Interests of the
Debtors’ Estates and Should Be Approved.
29.
Courts have made clear that a debtor’s business judgment is entitled to substantial
deference with respect to the procedures to be used in selling an estate’s assets.
See, e.g., In re Culp, 550 B.R. 683, 697 (D. Del. 2015) (“In determining whether to authorize use,
sale or lease of property of the estate under Section 363, courts require the [debtor] to show that a
sound business purpose justifies such actions.  If the [debtor’s] decision evidences a sound business
purpose, then the Bankruptcy Court should approve the sale.”) (quoting In re Montgomery Ward
Holding Corp., 242 B.R. 147, 153 (D. Del. 1999)); In re Schipper, 933 F.2d 513, 515 (7th Cir.
1991) (“Under Section 363, the debtor in possession can sell property of the estate . . . if he has an
‘articulated business justification’” (internal citations omitted)); In re Martin, 91 F.3d 389, 395
(3d Cir. 1996) (quoting In re Schipper); see also In re Integrated Res. Inc., 147 B.R. 650, 656–7
(S.D.N.Y. 1992) (noting that bidding procedures that have been negotiated by a trustee are to be
reviewed according to the deferential “business judgment” standard, under which such procedures
and arrangements are “presumptively valid”).
30.
The paramount goal in any proposed sale of property of the estate is to maximize
the proceeds received by the estate.  See In re Adams Res. Expl. Corp., No. 17-10866 (KG), at 12
(Bankr. D. Del. 2017) (“The relief requested in the Sale Motion is a necessary and appropriate step
toward enabling the Debtor to maximize the value of its bankruptcy estate, and it is in the best
interests of the Debtor, its estate and its creditors.”); In re Mushroom Transp. Co., 382 F.3d 325,
339 (3d Cir 2004) (debtor-in-possession “had a fiduciary duty to protect and maximize the estate’s
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assets”); In re Edwards, 228 B.R. 552, 561 (Bankr. E.D. Pa. 1998) (“The purpose of procedural
bidding orders is to facilitate an open and fair public sale designed to maximize value for the
estate.”); In re Food Barn Stores, Inc., 107 F.3d 558, 564–65 (8th Cir. 1997) (in bankruptcy sales,
“a primary objective of the Code [is] to enhance the value of the estate at hand”); Integrated Res.
147 B.R. at 659 (“[I]t is a well-established principle of bankruptcy law that the objective of the
bankruptcy rules and the trustee’s duty with respect to such sales is to obtain the highest price or
greatest overall benefit possible for the estate.”) (internal citations omitted).
31.
To that end, courts uniformly recognize that procedures intended to enhance
competitive bidding are consistent with the goal of maximizing the value received by the estate
and therefore are appropriate in the context of bankruptcy transactions.  See, e.g., In re Dura Auto,
Sys., 379 B.R. 257, 263 (Bankr. D. Del. 2007) (bidding procedures “enhance[ing] competitive
bidding are consistent with the goal of maximizing the value received by the estate and therefore
are appropriate in the context of bankruptcy sales”); Integrated Res., 147 B.R. at 659 (bidding
procedures “are important tools to encourage bidding and to maximize the value of the debtor’s
assets”); In re Fin. News Network, Inc., 126 B.R. 152, 156 (Bankr. S.D.N.Y. 1991)
(“court-imposed rules for the disposition of assets . . . [should] provide an adequate basis for
comparison of offers, and [should] provide for a fair and efficient resolution of bankrupt estates”).
32.
The Debtors believe that the proposed Bidding Procedures will promote active
bidding from seriously interested parties and will elicit the highest or otherwise best offers
available for the Assets.  The proposed Bidding Procedures will allow the Debtors to conduct the
sale process in a controlled, fair, and open fashion that will encourage participation by financially
capable bidders who will offer the best package for the Assets and who can demonstrate the ability
to close a transaction.  Specifically, the Bidding Procedures contemplate an open auction process
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with minimal barriers to entry and provide potential bidding parties with sufficient time to perform
due diligence and acquire the information necessary to submit a timely and well-informed bid.
33.
At the same time, the Bidding Procedures provide the Debtors with a robust
opportunity to consider competing bids and select the highest or otherwise best offer for the
completion of the Sale Transaction.  As such, creditors of the Debtors’ estates can be assured that
the consideration obtained will be fair and reasonable and at or above market.  Accordingly, for
all of the foregoing reasons, the Debtors believe that the Bidding Procedures:  (a) will encourage
robust bidding for the Assets; (b) are consistent with other procedures previously approved by
courts in this District; and (c) are appropriate under the relevant standards governing auction
proceedings and bidding incentives in bankruptcy proceedings and should be approved.
34.
The Debtors submit that the proposed Bidding Procedures will encourage
competitive bidding, are appropriate under the relevant standards governing auction proceedings
and bidding incentives in bankruptcy proceedings, and are consistent with other procedures
previously approved by this Court.  See, e.g., In re Yellow Corp., No. 23-11069 (CTG) (Bankr. D.
Del. Sept. 15, 2023); In re PGX Holdings, Inc., No. 23-10718 (CTG) (Bankr. D. Del. Aug. 4,
2023); In re SiO2 Med. Prods., Inc., No. 23-10366 (JTD) (Bankr. D. Del. Apr. 25, 2023);
In re Lucira Health, Inc., No. 23-10242 (MFW) (Bankr. D. Del. Mar. 27, 2023); In re Starry
Group Holdings, Inc., No. 23-10219 (KBO) (Bankr. D. Del. Mar. 21, 2023).
B.
The Form and Manner of Service of the Sale Notice Should Be Approved.
35.
Pursuant to Bankruptcy Rule 2002(a), the Debtors are required to provide creditors
with 21 days’ notice of the Sale Hearing.  Pursuant to Bankruptcy Rule 2002(c), such notice must
include the time and place of the relevant Auction and the Sale Hearing and the deadline for filing
any objections to the relief requested herein.
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36.
As noted above, within two (2) days of entry of the Bidding Procedures Order, or
as soon as reasonably practicable thereafter, the Debtors will serve the Sale Notice upon the
following parties or their respective counsel, if known: (a) the U.S. Trustee; (b) the Contract
Counterparties; (c) all parties who have expressed a written interest in some or all of the Assets;
(d) all parties who are known or reasonably believed, after reasonable inquiry, to have asserted
any lien, encumbrance, claim, or other interest in the Assets; (e) the Internal Revenue Service;
(f) all applicable state and local taxing authorities; (g) all the Debtors’ other creditors; (h) each
governmental agency that is an interested party with respect to the proposed Sale Transaction; and
(i) any party that has requested notice pursuant to Bankruptcy Rule 2002.The Debtors shall also
publish an abbreviated version of the Sale Notice on the Case Website.
37.
In addition, within four (4) business days, or as soon as reasonable practicable
thereafter, the Debtors will provide notice of the Sale Hearing through publication of the Sale
Notice on their restructuring website, https://omniagentsolutions.com/Vyaire (the “Case
Website”) and will also publish the Sale Notice, with any modifications necessary for ease of
publication (the “Publication Notice”), in The New York Times (national edition), to provide notice
to any other potential interested parties.
38.
The Debtors submit that notice of this motion and the related hearing to consider
entry of the Bidding Procedures Order, coupled with service of the Sale Notice as provided for
herein, constitutes good and adequate notice of the Sale Transaction and the proceedings with
respect thereto in compliance with, and satisfaction of, the applicable requirements of Bankruptcy
Rule 2002.  Accordingly, the Debtors request that this Court approve the form and manner of the
Sale Notice.
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C.
The Bid Protections Have a Sound Business Purpose and Should be Approved.
39.
The Debtors are also seeking authority to designate one or more Stalking Horse
Bidders and offer Bid Protections to each such Stalking Horse Bidder.  The use of a stalking horse
in a public auction process for sales is a customary practice in chapter 11 cases, as the use of a
stalking horse bid is, in many circumstances, the best way to maximize value in an auction process
by “establish[ing] a framework for competitive bidding and facilitat[ing] a realization of that
value.”  Interforum Holding LLC, No. 11-CV-219, 2011 WL 2671254 at *1 n. 1 (E.D. Wis. July 7,
2011).  As a result, stalking horse bidders virtually always require break-up fees and, in many
cases, other forms of bidding protections as an inducement for “setting the floor at auction,
exposing [their] bid[s] to competing bidders, and providing other bidders with access to the due
diligence necessary to enter into an asset purchase agreement.”  Id. (citation omitted).  Thus, the
use of bidding protections has become an established practice in chapter 11 cases.
40.
Indeed, break-up fees and other forms of bid protections are a normal and, in many
cases, necessary component of significant sales conducted in chapter 11:  “Break-up fees are
important tools to encourage bidding and to maximize the value of the debtor’s assets . . .  In fact,
because the directors of a corporation have a duty to encourage bidding, break-up fees can be
necessary to discharge the directors’ duties to maximize value.”  Integrated Res., 147 B.R. at 659–
60 (emphasis in original).  Specifically, bid protections “may be legitimately necessary to convince
a ‘white knight’ to enter the bidding by providing some form of compensation for the risks it is
undertaking.”  In re 995 Fifth Ave. Assocs., L.P., 96 B.R. 24, 28 (Bankr. S.D.N.Y. 1989) (citation
and quotations omitted); see also Integrated Res., 147 B.R. at 660–61 (noting bid protections can
prompt bidders to commence negotiations and “ensure that a bidder does not retract its bid”).
41.
As a result, courts routinely approve such bid protections in connection with
proposed bankruptcy sales where a proposed fee or reimbursement provides a benefit to the estate.
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See In re Energy Future Holdings Corp., 904 F.3d 298 (3d Cir. 2018) (holding that “[T]he
allowability of break-up fees. . . depends upon the requesting party’s ability to show that the fees
[a]re actually necessary to preserve the value of the estate.”) (citing In re O’Brien Envtl. Energy,
Inc., 181 F.3d 527, 535 (3d Cir. 1999)) (alterations in original); In re Reliant Energy Channelview
LP, 594 F.3d 200, 206 (3d Cir. 2010) (same).  The allowance of the Bid Protections, in the event
that the Debtors execute a Stalking Horse APA, is in the best interests of the Debtors’ estates and
their creditors, as any Stalking Horse APA will establish a floor for further bidding that may
increase the consideration given in exchange for the Assets that are the subject of such Stalking
Horse APA, which will inure to the benefit of the Debtors’ estates.
42.
In the Third Circuit, bid protections, such as those proposed here, are subject to the
general standard used for administrative expenses under section 503 of the Bankruptcy Code.
Energy Future, 904 F.3d at 313 (“[T]ermination fees are subject to the same general standard used
for all administrative expenses under 11 U.S.C. § 503.”); Women First Healthcare, Inc., 332 B.R.
115, at 121–23 (Bankr. D. Del. 2005) (holding that the general standard used for all administrative
expenses applies to bid protections).  Thus, the “allowability of break-up fees, like that of other
administrative expenses, depends upon the requesting party’s ability to show that the fees were
actually necessary to preserve the value of the estate.” Reliant Energy, 594 F.3d at 206 (internal
quotations omitted) (quoting O’Brien, 181 F.3d at 535).
43.
Here, the flexibility to offer Bid Protections—which may include a break-up fee
that is limited under the Bidding Procedures to no more than 3.0% of the total cash consideration
payable under a Stalking Horse APA, inclusive of any expense reimbursement—is a critical
component of the Debtors’ ability to obtain the commitment of one or more Stalking Horse
Bidders.  To qualify as a Stalking Horse Bidder, a Qualified Bidder will need to have expended
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and will continue to expend time and resources negotiating, drafting, and performing due diligence
activities necessitated by the Sale Transaction, despite the fact that its Qualified Bid will be subject
not only to Court approval, but also to overbidding by third parties.  Any Bid Protections offered
to a Stalking Horse Bidder will have been negotiated in good faith and at arm’s length and with
significant give-and-take with respect to such Bid Protections.  As a result, by preserving the
flexibility to offer Bid Protections, the Debtors ensure that their estates can realize the benefit of a
transaction with a Stalking Horse Bidder without sacrificing the potential for interested parties to
submit overbids at the Auction.  Furthermore, to the extent any party objects to the Bid Protections,
such party’s ability to object is preserved, since there will be an objection deadline following the
filing of the Stalking Horse Notice and an opportunity for a hearing.
44.
The Bid Protections provided to any Stalking Horse Bidder (a) are an actual and
necessary cost and expense of preserving the Debtors’ estates within the meaning of
sections 503(b) and 507(a)(2) of the Bankruptcy Code, (b) are commensurate to the real and
material benefits conferred upon the Debtors’ estates by the Stalking Horse Bidder, and (c) are
fair, reasonable, and appropriate, including in light of the size and nature of the proposed Sale
Transaction, the commitments that have been made, and the efforts that have been and will be
expended by any Stalking Horse Bidder.
45.
If the Court does not approve Bid Protections, the Debtors may not be able to induce
any Qualified Bidders to serve as Stalking Horse Bidders, to the detriment of the Debtors’ estates.
Further, if the Debtors enter into a Stalking Horse APA with Bid Protections that were ultimately
to be paid, it will necessarily be because the Debtors have received higher or otherwise superior
offers for the applicable Assets.  In short, the proposed Bid Protections constitute a “fair and
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reasonable percentage of the proposed purchase price” and are “reasonably related to the risk,
effort, and expenses of the prospective purchaser.”  Integrated Res., 147 B.R. at 662.
46.
The Bid Protections are a sound exercise of the Debtors’ business judgment and are
in the best interests of the Debtors, their estates, and all stakeholders.  Accordingly, the Court
should approve Bid Protections.
D.
The Assumption and Assignment Procedures Are Appropriate and Should Be
Approved.
47.
As set forth above, the Sale Transactions contemplate the assumption and
assignment of contracts to the Successful Bidder arising from the Auctions, if any.  In connection
with this process, the Debtors believe it is necessary to establish the Assumption and Assignment
Procedures by which:  (a) the Debtors and contract counterparties can reconcile cure obligations,
if any, in accordance with section 365 of the Bankruptcy Code; and (b) such counterparties can
object to the assumption and assignment of contracts and/or related cure amounts.
48.
As set forth in the Bidding Procedures Order, the Debtors also request that any party
that fails to object to the proposed assumption and assignment of any contract be deemed to consent
to the assumption and assignment of the applicable contract pursuant to section 365 of the
Bankruptcy Code on the terms set forth in the sale order, along with the cure amounts identified
in the contract notice.  See, e.g., In re Boy Scouts of Am., 642 BR 504, 569 (Bankr. D. Del. 2022)
(“The lack of objection of a [creditor] is also consensual for purposes of § 363 and, again,
permissible under § 363(f)(2).”); In re Tabone, Inc., 175 B.R. 855, 858 (Bankr. D.N.J. 1994)
(same); Pelican Homestead v. Wooten (In re Gabel), 61 B.R. 661, 667 (Bankr. W.D. La. 1985)
(same).
49.
The Debtors believe that the Assumption and Assignment Procedures are fair and
reasonable, provide sufficient notice to parties to the executory contracts and leases, and provide
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certainty to all parties in interest regarding their obligations and rights in respect thereof.
Accordingly, the Debtors request that the Court approve the Assumption and Assignment
Procedures set forth in the Bidding Procedures Order.
E.
The Debtors Intend to Seek Approval of the Sale Transaction as an Exercise of Sound
Business Judgment at the Sale Hearing.
50.
Section 363(b)(1) of the Bankruptcy Code provides that a debtor, “after notice and
a hearing, may use, sell or lease, other than in the ordinary course of business, property of the
estate.”  A sale of the debtor’s assets should be authorized pursuant to section 363 of the
Bankruptcy Code if a sound business purpose exists for the proposed transaction.
See, e.g., In re Martin, 91 F.3d 389, 395 (3d. Cir. 1996) (“Under Section 363, the debtor in
possession can sell property of the estate . . . if he has an ‘articulated business justification’ . . . .”);
see also In re Schipper, 933 F.2d 513, 515 (7th Cir. 1991) (same); In re Abbotts Dairies of
Pennsylvania, Inc.,788 F.2d 143 (3rd Cir. 1986); Stephens Indus., Inc. v. McClung, 789 F. 2d 386,
390 (6th Cir. 1986); Comm. of Equity Sec. Holders v. Lionel Corp. (In re Lionel Corp.),
722 F.2d 1063, 1070 (2d Cir. 1983); In re Telesphere Commc’s, Inc., 179 B.R. 544, 552 (Bankr.
N.D. Ill. 1999); In re Delaware & Hudson Railway Co., 124 B.R. 169, 176 (D. Del. 1991).  The
Delaware & Hudson Railway court rejected the pre-Code “emergency” or “compelling
circumstances” standard, finding the “sound business purpose” standard applicable and, discussing
the requirements of that test under McClung and Lionel, observing:
A non-exhaustive list of factors to consider in determining if there
is a sound business purpose for the sale include: the proportionate
value of the asset to the estate as a whole; the amount of elapsed
time since the filing; the likelihood that a plan of reorganization will
be proposed and confirmed in the near future; the effect of the
proposed disposition of the future plan of reorganization; the
amount of proceeds to be obtained from the sale versus appraised
values of the Property; and whether the asset is decreasing or
increasing in value.
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124 B.R. at 176.
51.
The Delaware & Hudson Railway court further held that “[o]nce a court is satisfied
there is a sound business reason or an emergency justifying the pre-confirmation sale, the court
must also determine that the trustee has provided the interested parties with adequate and
reasonable notice, that the sale price is fair and reasonable and that the Buyer is proceeding in good
faith.”  Id.
52.
Once the Debtors articulate a valid business justification, “[t]he business judgment
rule ‘is a presumption that in making the business decision the directors of a corporation acted on
an informed basis, in good faith,’ and in the honest belief that the action was in the best interests
of the company.”  In re S.N.A. Nut Co., 186 B.R. 98, 102 (Bankr. N.D. Ill 1995) (citations omitted);
In re Filene’s Basement, LLC, No. 11-13511 (KJC), 2014 WL 1713416, at *12 (Bankr. D. Del.
Apr. 29, 2014) (“If a valid business justification exists, then a strong presumption follows that the
agreement at issue was negotiated in good faith and is in the best interests of the estate”) (citations
omitted); Integrated Res., 147 B.R. at 656; In re Johns-Manville Corp., 60 B.R. 612, 615–16
(Bankr. S.D.N.Y. 1986) (“a presumption of reasonableness attaches to a debtor’s management
decisions.”).
53.
At the Sale Hearing, the Debtors intend to demonstrate that a sound business
purpose exists for the sale free and clear of all encumbrances, due and adequate notice has been
provided, the purchase price reflects fair value, and the Sale Transaction has been proposed in
good faith without collusion or undue influence, and relief under Bankruptcy Rules 6004(h) and
6006(d), among other things.  The Debtors reserve the right to submit supplemental materials,
including declarations, in connection with the Sale Hearing.
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Notice
54.
The Debtors will provide notice of this motion to:  (a) the United States Trustee for
the District of Delaware; (b) the holders of the 30 largest unsecured claims against the Debtors
(on a consolidated basis); (c) the office of the attorney general for each of the states in which the
Debtors operate; (d) the United States Attorney’s Office for the District of Delaware;
(e) the Internal Revenue Service; (f) the United States Securities and Exchange Commission;
(g) counsel to the 1L Ad Hoc Group; (h) the agent of the DIP Facility and counsel thereto;
(i) the agent of the First Lien Credit Agreement and counsel thereto; (j) the Second Lien Credit
Agreement Agent and counsel thereto; (k) the agent of the First Lien Notes and counsel thereto;
(l) counsel to the DIP Lenders; (m) all parties to executory contracts and leases to be assumed and
assigned, or rejected as part of the proposed sale; (n) all parties who have expressed a written
interest in some or all of the Debtors’ assets; (o) all known holders of liens, encumbrances, and
other claims secured by the Debtors’ assets; (p) all applicable state and local taxing authorities;
(q) each governmental agency that is an interested party with respect to the Sale Transactions; and
(r)  any party that has requested notice pursuant to Bankruptcy Rule 2002.  The Debtors submit
that, in light of the nature of the relief requested, no other or further notice need be given.
No Prior Request
55.
No prior request for the relief sought in this motion has been made to this or any
other court.
[Remainder of page intentionally left blank]
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WHEREFORE, the Debtors request entry of the Order, substantially in the form attached
hereto as Exhibit A, (a) granting the relief requested herein and (b) granting such other relief as
the Court deems appropriate under the circumstances.
Dated: June 10, 2024
Wilmington, Delaware
/s/ Patrick J. Reilley
COLE SCHOTZ P.C.
KIRKLAND & ELLIS LLP
Patrick J. Reilley, Esq. (DE Bar No. 4451)
KIRKLAND & ELLIS INTERNATIONAL LLP
500 Delaware Avenue, Suite 1410
Joshua A. Sussberg, P.C. (pro hac vice admission pending)
Wilmington, Delaware 19801
601 Lexington Ave
Telephone:
(302) 652-3131
New York, New York 10022
Facsimile:
(302) 652-3117
Telephone:
(212) 446-4800
Email:
preilley@coleschotz.com
Facsimile:
(212) 446-4900
Email:
joshua.sussberg@kirkland.com
- and -
- and -
Michael D. Sirota, Esq. (pro hac vice admission pending)
Warren A. Usatine, Esq (pro hac vice admission pending)
Spencer A. Winters, P.C. (pro hac vice admission pending)
Court Plaza North, 25 Main Street
Yusuf U. Salloum (pro hac vice admission pending)
Hackensack, New Jersey 07601
333 West Wolf Point Plaza
Telephone:
(201) 489-3000
Chicago, Illinois 60654
Facsimile:
(201) 489-1536
Telephone:
(312) 862-2000
Email:
msirota@coleschotz.com
Facsimile:
(312) 862-2200
wusatine@coleschotz.com
Email:
spencer.winters@kirkland.com
yusuf.salloum@kirkland.com
Proposed Co-Counsel to the Debtors
Proposed Co-Counsel to the Debtors
and Debtors in Possession
and Debtors in Possession
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EXHIBIT A
Bidding Procedures Order
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IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
)
In re:
)
Chapter 11
)
VYAIRE MEDICAL, INC., et al.,1
)
Case No. 24-11217 (___)
)
Debtors.
)
(Joint Administration Requested)
)
Re:  Docket No. __
ORDER (I) APPROVING BIDDING PROCEDURES
IN CONNECTION WITH THE SALE OF SUBSTANTIALLYALL
OF THE DEBTORS’ ASSETS, (II) AUTHORIZING THE DEBTORS
TO ENTER INTO A STALKING HORSE AGREEMENT AND
PROVIDE BID PROTECTIONS, (III) APPROVING THE FORM AND
MANNER OF NOTICE THEREOF, (IV) SCHEDULING AN AUCTION AND
SALE HEARING, (V) APPROVING PROCEDURES FOR THE ASSUMPTION
AND ASSIGNMENT OF CONTRACTS, (VI) APPROVING THE SALE OF THE
DEBTORS’ ASSETS FREE AND CLEAR, AND (VII) GRANTING RELATED RELIEF
Upon the Motion of the Debtors for Entry of an Order (I) Approving Bidding Procedures
in Connection with the Sale of Substantially All of the Debtors’ Assets, (II) Authorizing the Debtors
to Enter Into a Stalking Horse Agreement and Provide Bid Protections, (III) Approving the Form
and Manner of Notice Thereof, (IV) Scheduling an Auction and Sale Hearing, (V) Approving
Procedures for the Assumption and Assignment of Contracts, (VI) Approving the Sale of the
Debtors’ Assets Free and Clear, and (VII) Granting Related Relief (the “Motion”)2 filed by the
debtors and debtors in possession (collectively, the “Debtors”) in the above-captioned debtors
chapter 11 cases (the “Chapter 11 Cases”); this Court having reviewed the Motion, the First Day
1
The last four digits of Debtor Vyaire Medical, Inc.’s federal tax identification number are 6495.  A complete list
of each of the Debtors in these chapter 11 cases and each such Debtor’s federal tax identification number may be
obtained
on
the
website
of
the
Debtors’
proposed
claims
and
noticing
agent
at
https://omniagentsolutions.com/Vyaire.  The location of Debtor Vyaire Medical, Inc.’s principal place of business
and the Debtors’ service address in these chapter 11 cases is 26125 North Riverwoods Boulevard, Mettawa,
Illinois, USA 60045.
2
Capitalized terms used but not defined herein shall have the respective meanings ascribed to such terms in the
Motion or in the Bidding Procedures, as applicable.
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Declaration, the Schlappig Declaration, and having considered the statements of counsel and the
evidence adduced with respect to the Motion at a hearing before the Court on [￿], 2024 to consider
certain of the relief requested in the Motion (the “Bidding Procedures Hearing”); and after due
deliberation, this Court having determined that the legal and factual bases set forth in the Motion
establish just cause for the relief granted herein; and it appearing that the relief requested in the
Motion is in the best interests of the Debtors, their estates, and their creditors, and the Debtors having
demonstrated good, sufficient, and sound business justifications for the relief granted herein;
IT IS HEREBY FOUND AND DETERMINED THAT:3
A.
Jurisdiction and Venue.  The United States District Court for the District of
Delaware has jurisdiction over this matter pursuant to 28 U.S.C. §1334, which was referred to the
United States Bankruptcy Court for the District of Delaware (the “Court”) under 28 U.S.C. § 157
and the Amended Standing Order of Reference from the United States District Court for the District
of Delaware, dated February 29, 2012.  The Debtors confirm their consent, pursuant to rule
9013-1(f) of the Local Rules of Bankruptcy Practice and Procedure of the United States
Bankruptcy Court for the District of Delaware (the “Local Rules”), to the entry of a final order by
the Court in connection with this motion to the extent that it is later determined that the Court,
absent consent of the parties, cannot enter final orders or judgments in connection herewith
consistent with Article III of the United States Constitution.  Venue is proper before this Court
pursuant to 28 U.S.C. §§ 1408 and 1409.
3
The findings and conclusions set forth herein constitute the Court’s findings of fact and conclusions of law pursuant
to Bankruptcy Rule 7052, made applicable to this proceeding pursuant to Bankruptcy Rule 9014.  To the extent
any of the following findings of fact constitute conclusions of law, they are adopted as such.  To the extent any
of the following conclusions of law constitute findings of fact, they are adopted as such.
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B.
Statutory and Legal Predicates.  The statutory and legal predicates for the
relief requested in the Motion are sections 105(a), 363, 365, 503, and 507 of the Bankruptcy Code,
Bankruptcy Rules 2002, 6004, 6006, 9007, 9008, and 9014, and Local Rules 2002-1, 6004-1, and
9006-1.
C.
Good and sufficient notice of the Motion, the Bidding Procedures, and the
relief sought in the Motion has been given under the circumstances, and no other or further notice
is required except as set forth herein.  A reasonable opportunity to object or be heard regarding the
relief provided herein has been afforded to parties in interest.
D.
Bidding Procedures.  The Debtors have articulated good and sufficient
business reasons for the Court to approve the bidding procedures attached hereto as Exhibit 1
(the “Bidding Procedures”).  The Bidding Procedures are fair, reasonable, and appropriate and
are designed to maximize the value of the proceeds of one or more sales (each, a “Sale Transaction”)
of some, all, or substantially all of the Debtors’ assets (the “Assets”).  The Bidding Procedures
were negotiated in good faith and at arm’s length and are reasonably designed to promote a
competitive and robust bidding process to generate the greatest level of interest in the Debtors’
Assets.  The proposed process for potentially designating a Stalking Horse Bidder or Bidders was
fair and appropriate under the circumstances and in the best interests of the Debtors’ estates.  The
Bidding Procedures comply with the requirements of Local Rule 6004-1(c).
E.
The Debtors have demonstrated a compelling and sound business
justification for the Court to enter this Order and thereby:  (a) approve the Bidding Procedures in
connection with the sale of some or substantially all of the Assets, (b) approve the form and manner
of notice thereof as described in paragraph 7 herein (including the Sale Notice), (c) schedule an
Auction and Sale Hearing, (d) approve procedures for the assumption and assignment of contracts
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and leases, and (e) grant related relief as set forth herein.  Such compelling and sound business
justification, which was set forth in the Motion, the Schlappig Declaration, and the First Day
Declaration, are incorporated herein by reference and, among other things, form the basis for the
findings of fact and conclusions of law set forth herein.
F.
Sale Notice.  The sale notice, the form of which is attached as Exhibit 2
(the “Sale Notice”), is appropriate and reasonably calculated to provide all interested parties with
timely and proper notice of the Auction, the Sale Hearing (as defined in the Bidding Procedures),
the Bidding Procedures, the Sale Transaction(s), and all relevant and important dates and objection
deadlines with respect to the foregoing, and no other or further notice of the Sale Hearing, the Sale
Transaction(s), or the Auction shall be required.
G.
Assumption and Assignment Provisions.  The Debtors have articulated
good and sufficient business reasons for the Court to approve the assumption and assignment
procedures set forth herein, in the Bidding Procedures (the “Assumption and Assignment
Procedures”) and the Potentially Assumed and Assigned Contracts Notice attached hereto
as Exhibit 3 (the “Potentially Assumed and Assigned Contracts Notice”), which are fair,
reasonable, and appropriate.  The Assumption and Assignment Procedures comply with the
provisions of section 365 of the Bankruptcy Code and Bankruptcy Rule 6006.
H.
Potentially Assumed and Assigned Contracts Notice.  The Potentially
Assumed and Assigned Contracts Notice, the form of which is attached hereto as Exhibit 3, is
appropriate and reasonably calculated to provide all interested parties with timely and proper notice
of the Assumption and Assignment Procedures, as well as any and all objection deadlines related
thereto, and no other or further notice shall be required for the Motion and the procedures described
therein, except as expressly required herein.
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I.
The Successful Bidder Notice, substantially in the form attached hereto as
Exhibit 4, is reasonably calculated to provide interested parties with timely and proper notice of
the proposed Sale Transaction(s), including, without limitation:  (a) the Successful Bidder, (b) the
Back-Up Bidder, if applicable, (c) the proposed Bid Protections provided to the Successful Bidder,
if any, (d) the key terms of the proposed Sale Transaction(s), and (e) the date, time, and place of
the Sale Hearing.
J.
Notice.  Notice of the Motion, the proposed Bidding Procedures, the
proposed process for designation of a Stalking Horse Bidder or Bidders, and the Bidding
Procedures Hearing was (i) appropriate and reasonably calculated to provide all interested parties
with timely and proper notice, (ii) in compliance with all applicable requirements of the Bankruptcy
Code, the Bankruptcy Rules, and the Local Rules and (iii) adequate and sufficient under the
circumstances of the Debtors’ Chapter 11 Cases, such that no other or further notice need be
provided except as set forth in the Bidding Procedures and the Assumption and Assignment
Procedures.  A reasonable opportunity to object and be heard regarding the relief granted herein
has been afforded to all parties in interest.
K.
The legal and factual bases set forth in the Motion establish just cause for
the relief granted herein.  Entry of this Order is in the best interests of the Debtors and their estates,
creditors, interest holders, and all other parties in interest.
L.
The Bidding Procedures comply with the requirements set forth by Local
Rule 6004-(1)(c).
IT IS HEREBY ORDERED THAT:
1.
The Motion is GRANTED as set forth herein.
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2.
All objections to the relief granted in this order (the “Order”) that have not been
withdrawn, waived, or settled, and all reservations of rights included therein are hereby overruled
and denied on the merits with prejudice.
3.
Potential Stalking Horse Bidder Designation.  Pursuant to the Bidding
Procedures, the Debtors are authorized, subject to the consent of the Required DIP Lenders (as
defined in the DIP Order), but not directed to select one or more Qualified Bidders that submit a
Qualified Bid for all or any portion of the Assets to act as a Stalking Horse Bidder and enter into
a Stalking Horse APA with each such Stalking Horse Bidder no later than July 1, 2024.  The
Debtors are further authorized, subject to consent of the Required DIP Lenders, but not directed,
to offer the Bid Protections to such Stalking Horse Bidder(s) provided that the total Bid Protections
offered to any Stalking Horse Bidder shall not exceed three percent (3%) of the total cash
consideration payable under such Stalking Horse APA, if any, inclusive of any expense
reimbursement, and subject to the objection process in paragraph 3 below.  The Stalking Horse
Bid and Stalking Horse APA, if any, shall be subject to higher or otherwise better offers consistent
with the Bidding Procedures, and no Bid Protections shall be offered on account of any portion of
the purchase price of such Stalking Horse Bid that is a credit bid, assumption of liabilities, or
non-cash (or cash-equivalent) consideration.  Further, no Bid Protections shall be provided to an
insider or an affiliate of the Debtors.
4.
If the Debtors, consistent with the Bidding Procedures and subject to the consent
of the Required DIP Lenders, determine to offer Bid Protections to any Stalking Horse Bidder, the
Debtors shall file with the Court and serve a notice (a “Stalking Horse Notice”) seeking approval
of the designation and the Bid Protections which shall include:  (a) the identity of the Stalking
Horse Bidder; (b) the amount of the Stalking Horse Bid; (c) a copy of the Stalking Horse APA;
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(d) the proposed Bid Protections to be provided to the Stalking Horse Bidder; and (e) a declaration
in support of the proposed Bid Protections, which includes whether the Stalking Horse Bidder has
any connection with the Debtors other than that which arises from the Stalking Horse Bid.  Any
objection to (i) the Bid Protections set forth in a Stalking Horse Notice or (ii) the designation of
the Stalking Horse (a “Stalking Horse Objection”), shall be filed no later than four (4) days after
the filing of the Stalking Horse Notice at 4:00 p.m., (prevailing Eastern Time).  If a timely
Stalking Horse Objection is filed, the Debtors are authorized to seek an expedited hearing with
respect to the Stalking Horse Objection on not less than three (3) calendar days’ notice.  Absent
any timely Stalking Horse Objection, the Bid Protections set forth in the Stalking Horse Notice
and the designation of the Stalking Horse are approved.
5.
IOI Deadline.  July 1, 2024, at 4:00 p.m., (prevailing Eastern Time), is the
deadline by which all IOIs for a Sale Transaction must be submitted in accordance with the terms
of the Bidding Procedures.  The Debtors may extend such deadline in accordance with the Bidding
Procedures subject to the consent of the Required DIP Lenders and without any further motion in
this Court; provided that the Debtors shall file a notice with the Court if the Debtors decide to
extend the deadline by which IOIs for a Sale Transaction must be submitted; provided further that
if no IOIs (individually or in the aggregate), in the good faith estimate of the Debtors and their
advisors, with the consent of the Required DIP Lenders, are likely to lead to Bids that (individually
or in the aggregate) meet the Minimum Bid Requirement as set forth in the Bidding Procedures
and herein, then the Debtors shall terminate the sale process and cancel the Auction.
6.
Bid Deadline.  July 22, 2024, at 5:00 p.m., (prevailing Eastern Time), is the
deadline by which all Bids for a Sale Transaction (as well as the Good Faith Deposit and other
documentation required under the Bidding Procedures for a Bid to be considered a Qualified Bid)
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must be submitted in accordance with the terms of the Bidding Procedures.  For the avoidance of
doubt, a Bid or series of Bids shall not constitute a “Qualified Bid” unless such Bid(s) (a) meets
the Minimum Bid Requirement and (b) contemplates that the aggregate cash sale proceeds of such
Bid(s) shall be indefeasibly paid to the DIP Lenders immediately upon the closing of the Sale
Transaction(s) subject to deductions for wind-down costs and expenses required to be paid
pursuant to the DIP Orders and the restructuring support agreement (the “RSA”) (which such
deducted amounts shall be paid to the Debtors).  The Debtors may extend such deadline in
accordance with the Bidding Procedures subject to the consent of the Required DIP Lenders and
without any further motion in this Court; provided that the Debtors shall file a notice with the
Court if the Debtors decide, with the consent of the Required DIP Lenders, to extend the deadline
by which Bids for a Sale Transaction must be submitted; provided further that if no Bids,
individually or in the aggregate, meet the Minimum Bid Requirement as set forth in the Bidding
Procedures and herein, then the Debtors shall terminate the sale process and cancel the Auction.
7.
Minimum Bid Requirement.  Each Bid for all or substantially all of the Debtors’
Assets must consist of or include cash consideration to be paid at the closing of the transactions,
which such amount would be payable to the DIP Lenders, contemplated by the Modified APA in
an amount equal to at least an amount that would satisfy the Minimum Bid Requirement (as defined
below); provided, however, that any Bid for less than substantially all of the Debtors’ Assets will
not be subject to any minimum bid amount threshold.  Each Bid must set forth the total purchase
price for such Bid.  Notwithstanding the foregoing and as further described in the Bidding
Procedures, if the aggregate cash consideration for the Debtors’ Assets, whether consisting of one
Bid or a series of Bids for some, all, or substantially all of the Debtors’ Assets that would be
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payable to the DIP Lenders does not meet or exceed $140,000,000 (the “Minimum Bid
Requirement”), then the Debtors shall terminate the sale process and cancel the Auction.
8.
Credit Bidding.  Nothing in this Order shall impact or limit the rights of the
Prepetition Agents, DIP Lenders, and DIP Agent, pursuant to section 363(k) of the Bankruptcy
Code, to credit bid all or any portion of the Obligations, under (and as defined in) each of the
Prepetition Credit Agreements and the DIP Credit Agreement, as applicable, to acquire the Assets
(each dollar of such obligations that is credit bid shall be treated the same as a dollar of cash);
provided that the DIP Lenders and the DIP Agent agree, solely in the event that the Company
receives a Bid or series of Bids by the Bid Deadline that is not less than the Minimum Bid
Requirement, then the DIP Lenders and the DIP Agent shall not credit bid for the Assets.
Notwithstanding anything to the contrary herein, nothing in these Bidding Procedures shall be
considered as a waiver of any other party in interest to object to, or seek to limit, the Credit Bid
during the Challenge Period under section 363(k) of the Bankruptcy Code; provided, however,
that this reservation of rights is not intended to, and does not, expand or limit the Challenge Period
or the Challenge rights provided for under the DIP Order.
9.
Auction.  If at least two Qualified Bids (including any Bid by a Stalking Horse
Bidder) are received by the Bid Deadline with regard to any particular Asset when combined with
any other Qualified Bids that, in the aggregate, meet the Minimum Bid Requirement,  the Debtors
will conduct an auction no later than July 24, 2024, at 10:00 a.m., (prevailing Eastern Time) in
person at the office of Kirkland & Ellis LLP, 333 West Wolf Point Plaza, Chicago, IL 60654 and/or
via remote video at the Debtors’ election (the “Auction Date”).  If held, the Auction proceedings
will be transcribed.  In the event the Debtors determine an Auction shall be held, the Debtors shall
file notice on the docket and send written notice (email sufficient) of the date, time, and place of
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the Auction to the Qualified Bidders no later than one (1) business day before such Auction, and
will post notice of the date, time, and place of the Auction no later than one (1) business day before
such Auction on their restructuring website, www.omniagentsolutions.com/Vyaire (the “Case
Website”).  Only the following parties, and their respective professionals and principals, and their
respective representatives and counsel, may attend the Auction: (i) the Debtors, (ii) the United
States Trustee, (iii) any Qualified Bidder, (iv) advisors to the DIP Lenders, (v) any creditors that
request access to the Auction within 48 hours prior to the date of the Auction, and (vi) any other
parties that the Debtors deem appropriate.  Notwithstanding the foregoing, if no Qualified Bids,
individually or in the aggregate, meet the Minimum Bid Requirement, then the Debtors shall
terminate the sale process and cancel the Auction.  For the avoidance of doubt, a Bid or series of
Bids shall not constitute a “Qualified Bid” unless such Bid(s) (a) meets the Minimum Bid
Requirement and (b) contemplates that the aggregate cash sale proceeds of such Bid(s) shall be
indefeasibly paid to the DIP Lenders immediately upon the closing of the Sale Transaction(s)
subject to deductions for wind-down costs and expenses required to be paid pursuant to the DIP
Orders and the RSA (which such deducted amounts shall be paid to the Debtors).
10.
Each Qualified Bidder participating in the Auction will be required to confirm in
writing and on the record at the Auction that (a) it has not engaged in any collusion with respect
to the bidding or sale of any of the Debtors’ Assets or otherwise taken any other action to prevent
a transparent and competitive auction process, and (b) its Qualified Bid is a good faith bona fide
offer that it intends to consummate if selected as the Successful Bidder or Back-Up Bidder.
11.
Following the Auction, the Debtors, with the consent of the Required DIP Lenders,
will determine which Qualified Bid is the highest or otherwise best Bid(s) for the Assets or subsets
thereof.  No later than July 24, 2024, at 4:00 p.m., (prevailing Eastern Time), or as soon as
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reasonably practicable following the Auction, the Debtors will serve the Successful Bidder Notice,
substantially in the form attached hereto as Exhibit 4, or notice of cancellation, as applicable,
(a) by overnight delivery service upon the applicable contract or lease counterparties
(the “Contract Counterparties”) at the address set forth in the notice provision of the applicable
contract (and their counsel, if known) and (b) by first class mail, email, or fax upon the Notice
Parties (as defined below).  The Debtors shall file the Successful Bidder Notice or notice of
cancellation, as applicable, and the final form of proposed order approving the Sale Transaction.
12.
Good Faith Deposits.  The Debtors may open one or more escrow accounts to hold
the Good Faith Deposits of all Qualified Bidders.  The Debtors shall hold and return the Good
Faith Deposits of Qualified Bidders in accordance with the Bidding Procedures.  If a Successful
Bidder (or if the Sale Transaction is to be consummated with the applicable Back-Up Bidder, then
such Back-Up Bidder) fails to consummate the Sale Transaction because of a breach or failure to
perform on the part of such Bidder, then the Debtors and their estates shall be entitled to retain the
Good Faith Deposit of such Successful Bidder (or, if the Sale Transaction is to be consummated
with a Back-Up Bidder, then such Back-Up Bidder) as part of the damages resulting to the Debtors
and their estates for such breach or failure to perform.  Any such forfeited Good Faith Deposit
shall become property of the Debtors’ estates, shall be considered proceeds of the Assets, and shall
be subject to the liens of the Debtors’ DIP Lenders and Prepetition Secured Parties (as defined in
the DIP Order), in accordance with the lien priorities set forth in the DIP Orders.
13.
Sale Transaction Objections.  All general objections to the Sale Transaction, if
any, must (a) be in writing, (b) state, with specificity, the legal and factual bases thereof, (c) be
filed with the Court and served so as to be actually received by no later than July 22, 2024, at
4:00 p.m., (prevailing Eastern Time) on the following parties (collectively, the “Notice
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Parties”):  (i) the Debtors, 6125 North Riverwoods Boulevard, Mettawa, Illinois 60045;
(ii)  proposed co-counsel for the Debtors, Kirkland & Ellis LLP, 601 Lexington Avenue, New
York, New York 10022, (Attn.:  Joshua A. Sussberg, P.C. (joshua.sussberg@kirkland.com) and
Chris Ceresa (chris.ceresa@kirkland.com)); and Kirkland & Ellis LLP, 333 West Wolf Point
Plaza, Chicago, Illinois 60654, (Attn.:  Spencer A. Winters, P.C. (spencer.winters@kirkland.com),
Yusuf
U.
Salloum
(yusuf.salloum@kirkland.com),
and
Rebecca
Marston
(rebecca.marston@kirkland.com)); and Cole Schotz P.C., 500 Delaware Avenue, Suite 1410,
Wilmington, Delaware 19801, (Attn: Patrick J. Reilley, Esq. (preilley@coleschotz.com),
Stacy
L.
Newman
(snewman@coleschotz.com),
Michael
E.
Fitzpatrick,
Esq.
(mfitzpatrick@coleschotz.com), and Jack M. Dougherty, Esq. (jdougherty@coleschotz.com), and
Court Plaza North, 25 Main Street, Hackensack, New Jersey 07601, (Attn.: Michael D. Sirota, Esq.
(msirota@coleschotz.com)); (iii) co-counsel to the DIP Lenders, Gibson, Dunn & Crutcher LLP,
200
Park
Avenue,
New
York,
NY
10166-0193
(Attn:
Scott
J.
Greenberg
(sgreenberg@gibsondunn.com), Jason Zachary Goldstein (jgoldstein@gibsondunn.com), Joshua
Brody (jbrody@gibsondunn.com), and Kevin Liang (kliang@gibsondunn.com)); and Pachulski
Stang Ziehl & Jones LLP, 919 North Market Street, 17th Floor, Wilmington, DE 19801 (Attn:
Laura Davis Jones (ljones@pszjlaw.com)); (iv) the Office of the United States Trustee, 844 King
Street, Suite 2207, Lockbox 35, Wilmington, Delaware 19801, Attn.: Benjamin A. Hackman
(Benjamin.A.Hackman@usdoj.gov); and (v) any other party that has requested notice pursuant to
Bankruptcy Rule 2002.
14.
Following service of the Successful Bidder Notice, parties may object to the
conduct of the Auction, the particular terms of any proposed Sale Transaction in a Successful Bid,
the identity of the Successful Bidder(s) or Backup Bidder(s), or adequate assurance of future
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performance of the Successful Bidder(s) (each such objection, a “Post-Auction Objection”).  Any
Post-Auction Objection must (a) be in writing, (b) state, with specificity, the legal and factual
bases thereof, and (c) be filed with the Court and served so as to be actually received by no later
than July 25, 2024, at 4:00 p.m., (prevailing Eastern Time) on the Notice Parties.
I.
Auction, Bidding Procedures, and Related Relief.
15.
The Bidding Procedures, substantially in the form attached hereto as Exhibit 1, are
incorporated herein and are hereby approved in their entirety.  The Bidding Procedures shall
govern the submission, receipt, and analysis of all Bids relating to any Sale Transaction.  Any party
desiring to submit a Bid shall comply with the Bidding Procedures and this Order.  The Debtors
are authorized to take any and all actions necessary to implement the Bidding Procedures and the
Debtors and their professionals shall direct and preside over the Auction.
16.
Noticing Procedures.  The noticing procedures as set forth in this Order and the
Motion, including the Sale Notice attached hereto as Exhibit 2, are hereby approved.  Within two
(2) business days after entry of this Order, or as soon as reasonably practicable thereafter, the
Debtors shall serve the Sale Notice by first-class mail upon the parties that received notice of the
Motion.  On or about the same date, the Debtors will publish the Sale Notice on the Debtors’ Case
Website and will also publish a notice substantially similar to the Sale Notice in The New York
Times (national edition) (the “Publication Notice”).  Service of the Sale Notice and publication
thereof in the manner described in this Order constitutes good and sufficient notice of the Auction
and the Sale Hearing.  No other or further notice is required.
Cancellation of Auction.  If only one Qualified Bid that meets the Minimum Bid
Requirement (including any Stalking Horse Bid) or no Qualified Bid that meets the Minimum Bid
Requirement (or Bid that may be remedied into a Qualified Bid pursuant to the Bidding Procedures
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and is actually remedied into a Qualified Bid that meets the Minimum Bid Requirement prior to
the Auction) is received by the Bid Deadline, the Debtors shall (a) notify the Court in writing that
the Auction is cancelled, (b) file a notice of cancellation of the Auction, and (c) if applicable, seek
authority at the Sale Hearing to consummate the Sale Transaction with the Qualified Bidder
(including any Stalking Horse Bidder).  The Debtors may also cancel the Auction if they
determine, with the written consent of the Required DIP Lenders, to implement the Sale
Transaction through a chapter 11 plan of reorganization in advance of the Bid Deadline.  For the
avoidance of doubt and notwithstanding anything else herein or in the Bidding Procedures, if there
are no Qualified Bids that, individually or in the aggregate, meet the Minimum Bid Requirement,
the Debtors shall terminate the sale process and cancel the Auction.  For the avoidance of doubt, a
Bid or series of Bids shall not constitute a “Qualified Bid” unless such Bid(s) (a) meets the
Minimum Bid Requirement and (b) contemplates that the aggregate cash sale proceeds of such
Bid(s) shall be indefeasibly paid to the DIP Lenders immediately upon the closing of the Sale
Transaction(s) subject to deductions for wind-down costs and expenses required to be paid
pursuant to the DIP Orders and the RSA (which such deducted amounts shall be paid to the
Debtors).
17.
Sale Hearing.  The Sale Hearing shall be held in the United States Bankruptcy
Court for the District of Delaware, 824 North Market Street, 6th Floor, Courtroom No. [￿],
Wilmington, Delaware 19801, on July 29, 2024, at 10:00 a.m., (prevailing Eastern Time) or
such other date and time that the Court may later direct; provided that the Sale Hearing may be
adjourned, from time to time, in accordance with the Bidding Procedures without further notice to
creditors or parties in interest other than by filing a notice on the Court’s docket or indicating such
adjournment in an agenda filed on the Court’s docket.
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II.
Approval of the Assumption and Assignment Procedures.
18.
The assumption and assignment procedures as set forth in this Order and the
Motion, including the Potentially Assumed and Assigned Contracts Notice and Successful Bidder
Notice attached hereto as Exhibit 3 and Exhibit 4, are hereby approved.  No later than two (2)
business days (or as soon as reasonably practicable thereafter) after the entry of this Order, the
Debtors shall file an Potentially Assumed and Assigned Contracts Notice, substantially in the form
attached hereto as Exhibit 3, and serve such notice (a) by overnight delivery service upon the
applicable Contract Counterparties at the address set forth in the notice provision of the applicable
contract or lease (and their counsel, if known) and (b) by first class mail, email, or fax upon the
Notice Parties.  The Potentially Assumed and Assigned Contracts Notice shall notify the Contract
Counterparties that the applicable executory contracts and unexpired leases are subject to potential
assumption and assignment and of the Debtors’ proposed cure amounts relating to such executory
contracts and unexpired leases.
19.
Following the Bid Deadline, upon request by any Contract Counterparty, the
Debtors will send such party evidence by first class mail and email (if known), that any Qualified
Bidder that included such contract or lease in its Bid has the ability to perform thereunder and
otherwise complies with the requirements of adequate assurance of future performance under
section 365(b)(1) of the Bankruptcy Code on a confidential basis for all nonpublic information.
20.
A Contract Counterparty objecting to a proposed cure amount or assumption and
assignment on any basis (except objections solely related to adequate assurance of future
performance by Successful Bidder) must file a written objection with the Court by fourteen (14)
days after serving the applicable Potentially Assumed and Assigned Contracts Notice, and serve
such objection on the Notice Parties (such deadline, the “Assumption and Assignment Objection
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Deadline”).  The Debtors shall file on the docket in these chapter 11 cases copies of the Successful
Bidder Notice or notice of cancellation, as applicable, and the final form of proposed order
approving the Sale Transaction as agreed upon between the Debtors and the Successful Bidder.
21.
In the event that the Debtors later identify any Contract Counterparty which was
not served with the Potentially Assumed and Assigned Contracts Notice, the Debtors may
subsequently serve such Contract Counterparty with a Potentially Assumed and Assigned Contract
substantially in the form attached hereto (each, a “Supplemental Potentially Assumed and
Assigned Contracts Notice”), and the Assumption and Assignment Procedures will nevertheless
apply to such Contract Counterparty; provided that the Assumption and Assignment Objection
Deadline with respect to a Contract Counterparty listed on a Supplemental Potentially Assumed
and Assigned Contracts Notice shall be fourteen (14) days following the date of service of a
Supplemental Potentially Assumed and Assigned Contracts Notice.
22.
If an objection to the Debtors’ proposed cure amounts is timely filed and not
withdrawn or resolved by the Sale Hearing, such cure objections will not be heard at the Sale
Hearing.  Any dispute regarding the cure amounts will either be resolved consensually, if possible,
or, if the parties are unable to resolve, at a later date as set by the Court.  The Debtors shall file and
serve a notice for a hearing for the Court to consider the unresolved cure objection(s) at the next
scheduled omnibus hearing which shall be set fourteen (14) days after the Sale Hearing, subject to
Court availability, unless the Debtors and the objecting parties agree to a different time and subject
to the Court’s schedule.  The Debtors reserve the right to reject, and not assume and assign, any
contract depending on the ultimate resolution of any cure amount in dispute; provided that, in the
case of an unexpired lease of non-residential real property, such determination shall be prior to the
expiration of the applicable deadline to assume or reject unexpired leases under section 365(d)(4)
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of the Bankruptcy Code.  For the avoidance of doubt, if the Successful Bidder determines, in its
sole discretion, that the cure dispute is too material, the Successful Bidder may delay the
assignment of such contract or lease until the resolution of the cure amount; provided that, in such
case, if any, the Successful Bidder shall be responsible for any and all costs arising under such
contract or lease during the pendency of the dispute.
23.
If no objection to the assumption of any contract or lease is timely filed or if an
objection is filed and resolved, each contract or lease to be assumed and assigned to the Successful
Bidder shall be assumed as of the effective date of the assumption and assignment of the contract
or lease (the “Assignment Date”) set forth in the applicable Successful Bidder Notice or such other
date as the Debtors and the Contract Counterparty agree and the proposed cure amount shall be
binding on all Contract Counterparties and the Contract Counterparties will be forever barred from
asserting any other claims related to the contract or lease against the Debtors.  Upon the
Assignment Date, the Successful Bidder shall pay all applicable cure amounts.
24.
As soon as reasonably practicable after the closing of a Sale Transaction, the
Debtors will file with the Court, serve on the applicable Contract Counterparties and cause to be
published on the Case Website, a notice containing the list of contracts and leases that the Debtors
assumed and assigned pursuant to any asset purchase agreement with a Successful Bidder.
25.
The inclusion of a contract on the Successful Bidder Notice shall not:  (a) obligate
the Debtors to assume or assign any contracts or leases listed thereon; or (b) constitute any
admission or agreement of the Debtors that such contract or lease is an executory contract.  Only
those contracts and leases that are included on a schedule of assumed and acquired contracts and
leases attached to a final asset purchase agreement will be assumed and assigned, and shall only
be assumed and assigned upon the Assignment Date.
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26.
In the event the Auction is cancelled pursuant to the Bidding Procedures, the
Debtors may continue to utilize the assumption and assignment procedures as set forth in this
Order and the Motion to further assess the potential assumption, assumption and assignment, or
rejection of any executory contracts and unexpired leases and to determine any applicable cure
amounts.
III.
Miscellaneous.
27.
The failure to include or reference a particular provision of the Bidding Procedures,
the RSA, and the DIP Orders, specifically in this Order shall not diminish or impair the
effectiveness or enforceability of such a provision.
28.
All parties in interest reserve any right they may have to object to, or otherwise
contest, any proposed sale of the Debtors’ assets requiring Court approval (and the appropriate
allocation of sale proceeds set forth in any order).
29.
In the event of any inconsistencies between this Order and the Motion and/or the
Bidding Procedures, this Order shall govern in all respects.
30.
Notice of the Motion as provided therein shall be deemed good and sufficient notice
of such Motion and the requirements of Bankruptcy Rule 6004(a), and such notice satisfies the
applicable Local Rules.
31.
To the extent the dates and deadlines herein are modified pursuant to the Bidding
Procedures and such modification is inconsistent with the requirements of Local Rule 9006-1, such
requirements shall be deemed satisfied.
32.
Notwithstanding anything to the contrary contained herein, any payment to be made
hereunder, and any authorization contained herein, shall be subject to any interim and final orders,
as applicable, approving the use of such cash collateral and/or the Debtors’ entry into any
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postpetition financing facilities or credit agreements, and any budgets in connection therewith
governing any such postpetition financing and/or use of cash collateral (each such order, a “DIP
Order”).  To the extent there is any inconsistency between the terms of the DIP Orders and any
action taken or proposed to be taken hereunder, the terms of the DIP Orders shall control.  Nothing
in the Motion or this Order waives or modifies the requirements of the RSA, including without
limitation, any milestone or consent and consultation rights contained in the RSA or DIP
Documents (as defined in the DIP Orders).
33.
Notwithstanding Bankruptcy Rule 6004(h), the terms and conditions of this Order
are immediately effective and enforceable upon its entry.
34.
The Debtors are authorized to take all actions necessary to effectuate the relief
granted in this Order in accordance with the Motion.
35.
This Court retains exclusive jurisdiction with respect to all matters arising from or
related to the implementation, interpretation, and enforcement of this Order.  This Court has the
authority to fashion appropriate relief, on an emergency basis or otherwise, for any violations of
this Order or the Bidding Procedures.
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EXHIBIT 1
Bidding Procedures
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IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
)
In re:
)
Chapter 11
)
VYAIRE MEDICAL, INC., et al.,1
)
Case No. 24-11217 (___)
)
Debtors.
)
(Joint Administration Requested)
)
BIDDING PROCEDURES
The debtors and debtors in possession (collectively, the “Debtors”) in the above-captioned
chapter 11 cases (collectively, the “Chapter 11 Cases”) will use the procedures set forth herein
(the “Bidding Procedures”) in connection with a sale or disposition of some, all, or substantially
all of the Debtors’ assets (the “Assets”) in one or more sale transactions (each, a “Sale
Transaction”), which transaction(s) may be effectuated through either a chapter 11 plan of
reorganization or a sale pursuant to section 363 of the Bankruptcy Code, and which transactions
may contemplate the sale of one or more of:
•
any and all assets associated with the Debtors’ Ventilation business (the “Ventilation
Assets”);
•
any and all assets associated with the Debtors’ Respiratory Diagnostics business
(the “Respiratory Diagnostics Assets”);
•
a portion of any and all assets, including, but not limited to, any Ventilation Assets,
Respiratory Diagnostic Assets, or a combination thereof, up to all of the Debtors’ assets
(the “Entire Business Assets”)
On June 9, 2024, the Debtors filed with the United States Bankruptcy Court for the District
of Delaware (the “Court”) the Motion of the Debtors for Entry of an Order (I) Approving Bidding
Procedures in Connection with the Sale of Substantially All of the Debtors’ Assets, (II) Authorizing
the Debtors to Enter Into a Stalking Horse Agreement and Provide Bid Protections, (III)
Approving the Form and Manner of Notice Thereof, (IV) Scheduling an Auction and Sale Hearing,
(V) Approving Procedures for the Assumption and Assignment of Contracts, (VI) Approving the
Sale of the Debtors’ Assets Free and Clear, and (VII) Granting Related Relief [Docket No. [￿]]
(the “Motion”).  By the Motion, the Debtors sought, among other things, entry of an order
1
A complete list of each of the Debtors in these chapter 11 cases and each such Debtor’s federal tax identification
number may be obtained on the website of the Debtors’ proposed claims and noticing agent at
https://omniagentsolutions.com/Vyaire.  The location of Debtor Vyaire Medical, Inc.’s principal place of business
and the Debtors’ service address in these chapter 11 cases is 26125 North Riverwoods Boulevard, Mettawa,
Illinois, USA 60045.
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approving Bidding Procedures2 for soliciting bids for, conducting an auction (the “Auction”) of,
and consummating one or more Sale Transactions of, the Assets, as further described herein.
On [￿], 2024, the Court entered an Order (I) Approving Bidding Procedures in Connection
with the Sale of Substantially All of the Debtors’ Assets, (II) Authorizing the Debtors to Enter Into
a Stalking Horse Agreement and Provide Bid Protections, (III) Approving the Form and Manner
of Notice Thereof, (IV) Scheduling an Auction and Sale Hearing, (V) Approving Procedures for
the Assumption and Assignment of Contracts, (VI) Approving the Sale of the Debtors’ Assets Free
and Clear, and (VII) Granting Related Relief [Docket No. [￿]] (the “Bidding Procedures
Order”).
Assets to Be Sold “Free and Clear”
Except as otherwise provided in a Modified APA (as defined below) submitted by a
Successful Bidder (as defined below), all of the Debtors’ right, title, and interest in and to the
Assets subject thereto shall be sold, subject to the Minimum Bid Requirement described below,
free and clear of any pledges, liens, security interests, encumbrances, claims, charges, options, and
interests thereon (collectively, the “Interests”), subject only to the Assumed Liabilities and
Permitted Encumbrances (each as defined in the Modified APA of the applicable Successful
Bidder), to the maximum extent permitted by section 363 of the Bankruptcy Code, with such
Interests to attach to the net proceeds of the sale(s) of the Assets with the same validity, force,
effect, and priority as such Interests applied against the Assets as of the date the Debtors’
commenced these Chapter 11 Cases, subject to any rights, claims, and defenses of the Debtors.
A party may participate in the bidding process by submitting a bid for (a) all or
substantially all of the Assets and/or (b) one or more, or any combination of, Assets of one
or more Debtors, as that party may desire.
2
All capitalized terms not herein defined shall have the meanings ascribed to them in the Motion and/or the Bidding
Procedures Order (as defined below), as applicable.
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Submission of Bid
Any interested bidder should contact, as soon as practicable:
PJT Partners LP
280 Park Avenue
New York, NY 10017
Attn:
Michael Schlappig
michael.schlappig@pjtpartners.com
(tel.) +1 (212) 364-2783
Jamie Baird
jamie.baird@pjtpartners.com
(tel.) +1 (212) 364-5300
Dylan Friesner
dylan.friesner@pjtpartners.com
(tel.) +1 (260) 417-0405
Key Dates and Deadlines
The key dates and deadlines for the sale process are as follows:
Deadline
Item
July 1, 2024, at 4:00 p.m., (prevailing
Eastern Time)
Deadline for submission of a non-binding Indication
of Interest
July 1, 2024
Stalking Horse Bidder Designation (as defined
below) (if the Debtors so choose to designate one or
more Stalking Horse Bidders (as defined below)
July 1, 2024
Bidding Procedures Hearing (subject to the court’s
availability)
No later than four (4) days after the
filing of the Stalking Horse Notice
(as defined
below)
at
4:00
p.m.,
(prevailing Eastern Time)
Stalking Horse Objection Deadline
July 3, 2024 (or as soon as reasonably
practicable thereafter)
Deadline for the Debtors to file and serve the Sale
Notice3
July 3, 2024 (or as soon as reasonably
practicable thereafter)
Deadline for the Debtors to file and serve the
Potentially Assumed and Assigned Contract Notice
3
“Sale Notice” shall mean the notice the Debtors will file with the Bankruptcy Court and cause to be published on
the Debtors’ Case Website setting forth (A) a description of the Assets available for sale in accordance with these
Bidding Procedures; (B) the date, time, and location of the Auction and proposed Sale Hearing; (C) the Sale
Transaction Objection Deadline and the procedures for filing such objections; and, if applicable, (D) a summary
of the material terms of any Stalking Horse APA, including the terms and conditions of any Bid Protections to be
provided thereunder, if applicable.
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Deadline
Item
Fourteen (14) days following service of
any notice of proposed assumption and
assignment.
Assumption and Assignment Objection Deadline
July 5, 2024 (or as soon as reasonably
practicable thereafter)
Deadline for the Debtors to publish the Publication
Notice4
July 22, 2024, at 4:00 p.m., (prevailing
Eastern Time)
Sale Transaction Objection Deadline
July 22, 2024, at 5:00 p.m., (prevailing
Eastern Time)
Bid Deadline
July 24, 2024, at 10:00 a.m., (prevailing
Eastern Time)
Auction Date (if any)
July 24, 2024 (or as soon as reasonably
practicable)
Deadline for the Debtors to file with the Bankruptcy
Court the Successful Bidder Notice (as defined
below), including the proposed Sale Order(s) (as
defined below), the final asset purchase agreement,
and any relevant schedules thereto
July 25, 2024, at 4:00 p.m., (prevailing
Eastern Time)
Post-Auction Objection Deadline
July 26, 2024, at 4:00 p.m., (prevailing
Eastern Time)
Sale Transaction Reply Deadline
July 29, 2024, at 10:00 a.m., (prevailing
Eastern Time) (subject to the Court’s
availability)
Sale Hearing (as defined below)
August 19, 2024
Deadline to consummate Sale Transaction
The Debtors, with the consent of the Required DIP Lenders, may adjourn any of the key
dates or deadlines herein without further order of the Bankruptcy Court; provided that the Debtors
shall promptly file a notice with the Bankruptcy Court of any changes to the key dates or deadlines
herein.  Any such adjournment shall not itself modify any of the Milestones under (and as defined
in) the terms of the proposed debtor-in-possession financing (the “DIP Facility”) and the
restructuring support agreement (the “RSA”).
4
“Publication Notice” shall mean a notice which the Debtors shall cause to be published in The New York Times
(national edition) which shall include the information contained in the Sale Notice.
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Consultation Parties
Throughout the sale process, the Debtors and their advisors will regularly and timely
consult with the following parties (collectively, the “Consultation Parties”):  (i) the advisors to the
DIP Lenders, DIP Agent, and the Prepetition Agents (each as defined below), (ii) the advisors to
the official committee of unsecured creditors appointed in these Chapter 11 Cases
(the “Committee”), and (iii) any other statutory committee appointed under 11 U.S.C. § 1102 in
the Chapter 11 Cases; provided, however, that during any period in which a Consultation Party has
submitted a Qualified Bid and has become a Qualified Bidder, such Consultation Party shall no
longer be considered a Consultation Party under these Bidding Procedures solely for so long as
such Consultation Party’s Bid remains a Qualified Bid and is not disqualified or withdrawn.  The
DIP Lenders and the DIP Agent agree solely in the event that the Debtors receive a Bid or series
of Bids by the Bid Deadline that is not less than the Minimum Bid Requirement, then the DIP
Lenders and the DIP Agent shall not submit a Bid, including a credit bid, for the Assets; provided
that if the Minimum Bid Requirement is not satisfied and the Debtors terminate the sale process
and cancel the Auction, the DIP Lenders and the DIP Agent may thereafter elect to credit bid for
the Assets.  For the avoidance of doubt, unless approved by the Bankruptcy Court, no amendment
or other modification to these Bidding Procedures shall be made by the Debtors without the
consent of the Required DIP Lenders (as defined below).
Qualifications to Submit Bids and Participate in Auction
A.
Diligence Materials
To participate in the bidding process for a Sale Transaction and to receive access to due
diligence materials (the “Diligence Materials”), a party must submit to the Debtors (i) an executed
confidentiality agreement, which must be based on the form confidentiality agreement supplied by
the Debtors in a designated data room and in form and substance satisfactory to the Debtors and
(ii) reasonable evidence demonstrating the party’s financial capability to consummate a Sale
Transaction with respect to those Assets in which the party is preliminarily interested as
determined by the Debtors in their reasonable business judgment.  No party will be permitted to
conduct any due diligence without entering into a confidentiality agreement described in clause (i).
A party who qualifies for access to Diligence Materials shall be a “Preliminary Interested
Investor.”  The Debtors will afford any Preliminary Interested Investor the time and opportunity
to conduct due diligence within the deadlines set forth in these Bidding Procedures.  Until the Bid
Deadline (as defined below), in addition to granting access to the Diligence Materials, the Debtors
will provide Preliminary Interested Investors with due diligence access and additional information,
as may be requested by a Preliminary Interested Investor, to the extent that the Debtors and the
Required DIP Lenders determine that such requests are reasonable and appropriate under the
circumstances.  All due diligence requests shall be directed to PJT Partners LP (“PJT”)
(Attn:  Dylan Friesner (dylan.friesner@pjtpartners.com)).  The Debtors, with the assistance of PJT,
will coordinate all reasonable requests for additional information and due diligence access from
Preliminary Interested Investors.
The Debtors reserve the right to withhold or modify any Diligence Materials that the
Debtors, with the consent of the Required DIP Lenders, determine in good faith are business
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sensitive or otherwise not appropriate for disclosure to a Preliminary Interested Investor who is a
competitor, vendor, or customer of the Debtors or is directly or indirectly affiliated with any
competitor, vendor, or customer of the Debtors.  Neither the Debtors nor their representatives shall
be obligated to furnish information of any kind whatsoever to any party that is not determined to
be a Preliminary Interested Investor.
B.
Due Diligence from Bidders
Each Preliminary Interested Investor and Bidder (as defined below) shall comply with all
reasonable requests with respect to information and due diligence access by the Debtors or their
advisors regarding such Preliminary Interested Investor or Bidder, as applicable, and its
contemplated Sale Transaction.  Failure by a potential bidder (including any Qualified Bidder (as
defined below)) to comply with such reasonable requests for additional information and due
diligence access may be a basis for the Debtors to determine that such Bidder is no longer a
Qualified Bidder or that a bid made by such Bidder is not a Qualified Bid (as defined below).
C.
Indication of Interest Deadline
In order to be eligible to submit a Bid, Acceptable Bidders will first be required to submit
a non-binding Indication of Interest on or before July 1, 2024, at 4:00 p.m., (prevailing Eastern
Time) (as may be extended in accordance with the terms of the Bidding Procedures Order and
these Bidding Procedures, the “IOI Deadline”), to the Debtors and their proposed investment
banker, PJT Partners LP, 280 Park Avenue, New York, New York 10017, Attn:  Michael Schlappig
(schlappig@pjtpartners.com), Jaimie Baird (baird@pjtpartners.com), and Dylan Friesner
(friesner@pjtpartners.com); provided, that, with the consent of the Required DIP Lenders, the
Debtors may extend the IOI Deadline or waive the requirement of an Indication of Interest for one
or more Acceptable Bidders upon request, without further order of the Court ; provided that the
Debtors shall file a notice with the Court if the Debtors decide, subject to the consent of the
Required DIP Lenders, to extend the deadline by which IOIs for a Sale Transaction must be
submitted for all parties; provided further that if the Debtors do not receive any indications of
interests by the IOI deadline that (individually or in the aggregate), in the good faith estimate of
the Debtors and their advisors, and with the consent of the Required DIP Lenders, are reasonably
likely to lead to Bids that (individually or in the aggregate) meets the Minimum Bid Requirement,
then the Debtors shall terminate the sale process and cancel the Auction.  If the Debtors extend the
IOI Deadline as to all parties, the Debtors will promptly notify all Acceptable Bidders and file a
notice of such extension on the Court’s docket.  The Debtors will then notify each Acceptable
Bidder whether its Indication of Interest satisfies the requirements set forth in the Motion and that
such bidder is qualified to submit a Bid that reflects such Indication of Interest.
D.
Bid Deadline and Auction Qualification Process
To be eligible to participate in the Auction, a party must be a Preliminary Interested
Investor and must submit a written offer for a Sale Transaction of some or all of the Debtors’
Assets (each, a “Bid” and the Preliminary Interested Investor that submits a Bid, a “Bidder”) that
must (i) be determined by the Debtors to satisfy each of the conditions set forth in this section and
(ii) be actually received by (a) counsel to the Debtors, Kirkland & Ellis LLP, 601 Lexington
Avenue,
New
York,
New
York
10022,
(Attn.:

Joshua
A.
Sussberg,
P.C.
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(joshua.sussberg@kirkland.com), and Chris Ceresa (chris.ceresa@kirkland.com)); and Kirkland
& Ellis LLP, 333 West Wolf Point Plaza, Chicago, Illinois 60654, (Attn.:  Spencer A. Winters,
P.C. (spencer.winters@kirkland.com) and Yusuf U. Salloum (yusuf.salloum@kirkland.com)); and
Cole Schotz P.C., 500 Delaware Avenue, Suite 1410, Wilmington, Delaware 19801, (Attn: Patrick
J. Reilley, Esq. (preilley@coleschotz.com), Stacy L. Newman (snewman@coleschotz.com),
Michael E. Fitzpatrick, Esq. (mfitzpatrick@coleschotz.com), and Jack M. Dougherty, Esq.
(jdougherty@coleschotz.com)), and Court Plaza North, 25 Main Street, Hackensack, New Jersey
07601, (Attn.: Michael D. Sirota, Esq. (msirota@coleschotz.com)) on or before July 22, 2024,
at 5:00 p.m., (prevailing Eastern Time) (as may be extended in accordance with the terms of this
Order and the Bidding Procedures, the “Bid Deadline”).
A Bid will not be considered qualified for the Auction if such Bid does not satisfy each of
the following conditions:
1.
Executed Agreement:  Each Bid must include (a) an offer letter, signed by an
authorized representative of the Bidder, pursuant to which the Bidder offers to consummate the
Sale Transaction contemplated by such Bid on the terms set forth in the Modified APA (as defined
below) together with (b) an asset purchase agreement, which may be based on the form asset
purchase agreement supplied by the Debtors in a designated data room (the “Form APA”) or, if
applicable, the Stalking Horse APA (as defined below), signed by an authorized representative of
the Bidder, pursuant to which the Bidder agrees to consummate such Sale Transaction for the
Assets referenced therein (together with all ancillary documents and schedules contemplated
thereby, a “Modified APA”).  For the avoidance of doubt, a Bidder shall not be required to base a
Modified APA on the Form APA or, if applicable, the Stalking Horse APA so long as such
Bidder’s Bid contains all material terms of such Bid.  Each Modified APA must provide a
commitment to close the Sale Transaction contemplated by such Modified APA within a time
frame acceptable to the Debtors after all closing conditions set forth in such Modified APA are
met (other than those which are to be satisfied at the closing of the transactions contemplated by
such Modified APA).
2.
Good Faith Deposit:  Each Bid must be accompanied by a cash deposit in the
amount of ten percent (10%) of the cash purchase price contemplated in such Bid, before any
adjustments to the purchase price, to an escrow account to be identified and established by the
Debtors (the “Good Faith Deposit”).  To the extent a Qualified Bid is modified before, during, or
after the Auction in any manner that increases the cash purchase price contemplated by such
Qualified Bid, the Debtors reserve the right to require that such Qualified Bidder increase its Good
Faith Deposit so that it equals ten percent (10%) of the increased purchase price.  In the event that
any Bid includes non-cash consideration, the Debtors reserve the right to require a Good Faith
Deposit of cash in the amount of ten percent (10%) of the value of the total consideration
contemplated by such Bid, as determined in the Debtors’ discretion.
3.
Good Faith Offer:  Each Bid must represent an irrevocable, binding, good faith, and
bona fide offer to purchase some or all of the Assets identified in such Bid if such Bid is selected
as the Successful Bid or the Back-Up Bid (each as defined herein).
4.
Minimum Bid Requirement:  Each Bid for all or substantially all of the Debtors’
Assets must consist of or include cash consideration to be paid at the closing of the transactions,
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which such amount will be payable to the DIP Lenders, contemplated by the Modified APA in an
amount equal to at least an amount that would satisfy the Minimum Bid Requirement (as defined
below); provided, however, that any Bid for less than substantially all of the Debtors’ Assets will
not be subject to any minimum Bid amount threshold.  Each Bid must set forth the total purchase
price for such Bid.
Notwithstanding the foregoing, if the aggregate cash consideration for the Debtors’ Assets,
whether consisting of one Bid or a series of Bids for either some, all, or substantially all of the
Debtors’ Assets that would be payable to the DIP Lenders does not meet or exceed $140,000,000
(the “Minimum Bid Requirement”), then the Debtors shall terminate the sale process and cancel
the Auction.
5.
Joint Bids:  The Debtors, with the consent of the Required DIP Lenders, will be
authorized to approve joint Bids in their reasonable discretion on a case-by-case basis.
6.
Purchased Assets and Assumed Liabilities:  Each Bid must clearly provide which
of the Assets the Bidder seeks to acquire, and which of the Assumed Liabilities (as defined in the
Modified APA) the Bidder agrees to assume.  With respect to any bids for less than all or
substantially all of the Debtors’ Assets, the Debtors reserve the right to request an allocation of the
purchase price among the Assets the Bidder seeks to acquire and the Assumed Liabilities the
Bidder agrees to assume.
7.
Designation of Assigned Contracts and Leases:  Subject to the terms of the
Modified APA, each Bid must identify any and all executory contracts and unexpired leases of the
Debtors that the Bidder wishes to be assumed and assigned to the Bidder at the closing of the Sale
Transaction contemplated by such Bid.
8.
Corporate Authority:  Each Bid must include written evidence reasonably
acceptable to the Debtors demonstrating appropriate corporate or similar governance authorization
of the Bidder to consummate the proposed Sale Transaction; provided that, if the Bidder is an
entity specially formed for the purpose of effectuating the Sale Transaction, then the Bidder must
furnish written evidence reasonably acceptable to the Debtors of the approval of the Sale
Transaction by the equity holder(s) of such Bidder and any other governing body of the Bidder
that is required to approve the Sale Transaction.
9.
Disclosure of Identity of Bidder:  Each Bid must fully disclose the identity of each
entity (including any equity owners, sponsors, or co-investors) that will be bidding for or
purchasing the Assets or otherwise directly or indirectly participating in connection with such Bid.
10.
Proof of Financial Ability to Perform:  Each Bid must include written evidence that
the Debtors conclude demonstrates that the Bidder has the necessary financial ability to (i) timely
close the Sale Transaction contemplated by such Bid within a time frame acceptable to the Debtors
after all closing conditions set forth in the Modified APA are met and (ii) provide adequate
assurance of future performance under all contracts to be assumed and assigned in such Sale
Transaction.  Such information must include, inter alia, the following:
a.
Contact names and numbers for verification of financing sources, if any;
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b.
Written evidence of the Bidder’s internal financial resources and ability to finance
its Bid with cash on hand, available lines of credit, uncalled capital commitments or otherwise
available funds (including through the posting of an irrevocable letter of credit or customary debt
or equity financing commitment letters that comply with the requirements of this sub paragraph
10.b or sub-paragraph 10.c below, as applicable, in each case, from reputable financial institutions)
in an aggregate amount sufficient to pay the cash purchase price contemplated by such Bid, to pay
for cure costs for contracts to be assumed and assigned in the Sale Transaction, and to satisfy all
other obligations of the Bidder pursuant to the Modified APA (“Bidder’s Obligations”); provided
that, if the Bidder is an entity that is specially formed for the purpose of effectuating the Sale
Transaction or if the Bidder intends to raise any equity financing to fund any portion of Bidder’s
Obligations, then the Bidder must furnish to the Debtors a fully executed and effective equity
commitment letter or guarantee (“Bidder Support”) (which Bidder Support shall remain
outstanding until at least sixty (60) days after the date of entry of the Sale Order (or the “outside
date” in the Modified APA, if later), subject to a potential further extension as set forth herein or
therein) from its equity holders or other affiliated entities with respect to the portion of Bidder’s
Obligations that are not to be paid with cash on hand (which Bidder Support may not be subject to
any conditions other than the satisfaction of the conditions set forth in the Modified APA and shall
include third party beneficiary language in favor of the Debtors entitling the Debtors to enforce
such Bidder Support directly against the counterparties) and provide written evidence that its
equity holders or other affiliated entities providing the Bidder Support have the resources and
ability to finance such portion of the Bidder’s Obligations;
c.
Without limiting the requirements of sub-paragraph 10.b above, if the Bidder
intends to raise any debt financing to fund any portion of the Bidder’s Obligations, the Bid must
include fully executed and effective debt financing commitment letter(s), which letter(s) shall
(i) not be subject to any internal approvals, credit committee approvals or diligence conditions,
(ii) be in customary form, and (iii) remain outstanding until sixty (60) days after the date of entry
of the Sale Order (subject to a potential further extension as set forth herein); and
d.
Any such other form of financial disclosure or credit-quality support information
or enhancement reasonably requested by the Debtors demonstrating that such Bidder (or, if the
Bidder is an entity formed for the purpose of making a Bid, its Bidder Support) has the ability to
close the Sale Transaction on the terms set forth in the Modified APA.
11.
Adherence to Bidding Procedures:  By submitting its Bid, each Bidder is agreeing
to abide by and honor the terms of these Bidding Procedures and agrees not to submit a Bid or
seek to reopen the Auction after conclusion of the Auction.
12.
Regulatory and Third-Party Approvals:  Each Bid must set forth each government,
licensing, regulatory, and other third-party approval or filing required to be obtained or made by
the Bidder or its Bidder Support, and each waiting period required to have expired or terminated,
for the Bidder to consummate the Sale Transaction, and the time period within which the Bidder
expects to receive such approvals, to make such filings or such waiting periods to expire or
terminate (and in the case that receipt of any such approval, the making of any such filing, or the
expiration or termination of any such waiting period is expected to take more than thirty (30) days
following execution and delivery of the Modified APA, those actions the Bidder will take to ensure
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10
receipt of such approval(s), the making of such filing(s) or the expiration or termination of such
waiting period(s) as promptly as possible).
13.
Contact Information and Affiliates:  Each Bid must provide the contact information
for the Bidder and full disclosure of any affiliates of the Bidder.
14.
Contingencies and Other Provisions:  Each Bid shall not contain any escrow
arrangements, indemnities, or adjustments to the purchase price.  Without limiting the immediately
preceding sentence, each Bid shall not include any conditions or contingencies relating to
financing (including, for the avoidance of doubt, any conditionality, or limitations on specific
performance, relating to any financing contemplated by sub-paragraph 10.c above), internal
approvals, or the absence of any material adverse effect.
15.
Contingencies Regarding Due Diligence:  Each Bid shall not include any conditions
or contingencies relating to due diligence.
16.
Acknowledgement of Independent Review:  Each Bid must include a written
acknowledgement and representation that the Bidder: (i) has had an opportunity to conduct any
and all due diligence prior to making its Bid; (ii) has relied solely upon its own independent review,
investigation, and/or inspection of any documents and/or the Assets in making its Bid; and (iii) did
not rely upon any written or oral statements, representations, promises, warranties, or guaranties,
express, implied, statutory or otherwise, regarding the Assets, the financial performance of the
Assets or the physical condition of the Assets, or the accuracy or completeness of any information
provided in connection therewith or the Auction, except as expressly stated in these Bidding
Procedures or the Modified APA.
17.
Irrevocable:  Each Bid must be irrevocable unless and until the Debtors accept a
higher Bid and such Bidder is not selected as the Back Up Bidder (as defined below); provided
that if a Bid is accepted as the Successful Bid or the Back-Up Bid, such Bid shall continue to
remain irrevocable, subject to the terms and conditions of these Bidding Procedures.
18.
Compliance with Diligence Requests:  The Bidder submitting the Bid must have
complied with reasonable requests for additional information and due diligence access from the
Debtors to the satisfaction of the Debtors.
19.
Back-Up Bid:  Each Bid shall provide that the Bidder will serve as back-up bidder
if the Bidder’s Bid is selected as the next highest and best bid after the Successful Bid and will
remain irrevocable in accordance with the terms and conditions of these Bidding Procedures.
20.
Consent to Jurisdiction:  Each Bidder and its Bidder Support (if applicable) must
(i) consent to the jurisdiction of the Bankruptcy Court to enter an order or orders, which shall be
binding in all respects, in any way related to the Debtors, these Chapter 11 Cases, the Bidding
Procedures, the Auction, any Sale Transaction, any Modified APA, or the construction and
enforcement of documents relating to any Sale Transaction, (ii) waive any right to a jury trial in
connection with any disputes relating to the Debtors, these Chapter 11 Cases, the Bidding
Procedures, the Auction, any Sale Transaction, any Modified APA, or the construction and
enforcement of documents relating to any Sale Transaction, and (iii) consent to the entry of a final
order or judgment in any way related to the Debtors, these Chapter 11 Cases, the Bidding
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Procedures, the Auction, any Modified APA, any Sale Transaction, or the construction and
enforcement of documents relating to any Sale Transaction if it is determined that the Bankruptcy
Court would lack Article III jurisdiction to enter such a final order or judgment absent the consent
of the parties.
21.
Disclaimer of Break-Up Fees and Expense Reimbursement:  Except as otherwise
provided below with respect to any potential Stalking Horse Bidder (as defined below), each Bid
must not, and must acknowledge that such Bid shall not, entitle the Bidder to any break-up fee,
termination fee or similar type of payment, compensation or expense reimbursement (including
legal fees) and, by submitting the Bid, the Bidder waives the right to pursue any administrative
expense claim (including under a theory of substantial contribution) under 11 U.S.C. § 503 related
in any way to the submission of its Bid or participation in any Auction.
22.
Acknowledgement of Remedies:  Each Bid shall include a written
acknowledgement from the Bidder that, in the event of the Bidders’ breach of, or failure to perform
under, the Modified APA, the Debtors and their estates shall be entitled to retain the Good Faith
Deposit as part of the damages resulting to the Debtors and their estates for such breach or failure
to perform, and pursue all other available legal and equitable remedies.
23.
Acknowledgement of No Collusion:  Each Bid shall include a written
acknowledgement from the Bidder that it has not (i) engaged in any collusion with respect to the
bidding or sale of any of the Assets described herein or (ii) taken any other action to prevent a
transparent and competitive auction process.
A Bid received from a Bidder before the Bid Deadline that meets the above requirements
shall constitute a “Qualified Bid,” as determined by the Debtors, in their reasonable business
judgment, and such Bidder shall constitute a “Qualified Bidder;” provided that, if the Debtors
receive a Bid that is not a Qualified Bid, the Debtors may provide (but shall not be obligated to
provide), subject to the consent of the Required DIP Lenders, the Bidder with the opportunity to
remedy any deficiencies prior to the Auction; provided, further, that if any Qualified Bidder fails
to comply with reasonable requests for additional information and due diligence access from the
Debtors to the satisfaction of the Debtors, and the Required DIP Lenders, then the Debtors may
disqualify any such Qualified Bidder and Qualified Bid, subject to the consent of the Required
DIP Lenders, and such Bidder shall not be entitled to attend or participate in the Auction.  The
Debtors may, subject to the consent of the Required DIP Lenders, accept a single Qualified Bid or
multiple Bids for non-overlapping material portions of the Assets such that, if taken together in
the aggregate, would otherwise meet the standards for a single Qualified Bid (in which event those
multiple bidders will be treated as a single Qualified Bidder for purposes of selecting the
Successful Bid; provided that the Debtors also reserve the right, subject to the consent of the
Required DIP Lenders, to conduct more than one sale process or Auction with respect to non-
overlapping material portions of the Assets).  The Debtors shall determine whether (i) a Bid is or
is not a Qualified Bid or (ii) any Qualified Bid or Qualified Bidder should be disqualified.  The
Debtors shall have the right, subject to the consent of the Required DIP Lenders, to deem a Bid a
Qualified Bid even if such Bid does not conform to one or more of the requirements above;
provided that any Bid for all or substantially all of the Debtors’ Assets that does not include cash
consideration of at least $[￿] may only be deemed a Qualified Bid with the prior written consent
of the Required DIP Lenders.  Any Bidder that does not submit a Bid before the Bid Deadline will
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not be permitted to submit a Bid after the Bid Deadline or to participate in the Auction unless
otherwise agreed by the Required DIP Lenders.
For the avoidance of doubt, a Bid or series of Bids shall not constitute a “Qualified Bid”
unless such Bid(s) (a) meets the Minimum Bid Requirement and (b) contemplates that the
aggregate cash sale proceeds of such Bid(s) shall be indefeasibly paid to the DIP Lenders
immediately upon the closing of the Sale Transaction(s) subject to deductions for wind-down costs
and expenses required to be paid pursuant to the DIP Orders and the RSA (which such deducted
amounts shall be paid to the Debtors).
Credit Bidding
The
agent
under
that
certain
Senior
Secured
Super-Priority
Term
Loan
Debtor-In-Possession Credit Agreement to be entered into by and among Vyaire Medical, Inc.,
Vyaire Finance B.V., the lenders party thereto (collectively in such capacities,
the “DIP Lenders”),5 and Wilmington Savings Fund Society, FSB, as administrative agent, and
collateral agent (in such capacities, the “DIP Agent”) (such credit agreement, as amended, restated,
amended and restated, supplemented, waived, or otherwise modified from time to time, the “DIP
Credit Agreement”) and the agents under that certain (i) First Lien Credit Agreement dated as of
April 16, 2018, by and among Vyaire Company, Vyaire Medical, Inc., Vyaire Finance B.V., each
of the other lenders from time to time party thereto (collectively in such capacities, the “Prepetition
First Lien Term Lenders”), and Bank of America, N.A. as administrative agent and collateral agent
(in such capacities, the “Prepetition First Lien Agent”) (such credit agreement, as amended,
restated, amended and restated, supplemented, or otherwise modified from time to time, the
“Prepetition First Lien Credit Agreement”), (ii) Note Purchase Agreement dated as of May 3, 2019,
by and among Holdings, Vyaire Medical, Inc., Vyaire Finance B.V., each of the purchasers party
thereto (collectively in such capacities, the “Prepetition Noteholders”), and Wilmington Trust,
National Association as notes agent and collateral agent (in such capacities, the “Prepetition First
Lien Notes Agent”) (such note purchase agreement, as amended, restated, amended and restated,
supplemented, or otherwise modified from time to time, the “Prepetition First Lien Note Purchase
Agreement”), and (iii) Second Lien Credit Agreement dated as of April 16, 2018, by and among
Holdings, Vyaire Medical, Inc., Vyaire Finance B.V., each of the other lenders from time to time
party thereto (collectively in such capacities, the “Prepetition Second Lien Term Lenders”, and
together with the Prepetition First Lien Term Lenders and the Prepetition Noteholders, the
“Prepetition Lenders”), Wilmington Trust, National Association as administrative agent and
collateral agent (in such capacities, the “Prepetition Second Lien Agent”, and together with the
Prepetition First Lien Agent and the Prepetition First Lien Notes Agent, the “Prepetition Agents”)
(such credit agreement, as amended, restated, amended and restated, supplemented, or otherwise
modified from time to time, the “Prepetition Second Lien Credit Agreement”, and together with
the Prepetition First Lien Credit Agreement and the Prepetition First Lien Note Purchase
Agreement, the “Prepetition Credit Agreements”) have liens on all Assets being sold in the
Auction, and reserve the right (at the direction of the applicable Required Lenders or Required
Purchasers, as applicable, and each as defined in the applicable Prepetition Credit Agreement) to
5
The DIP Lenders holding at least 66.67% of the aggregate outstanding principal amount and commitments of the
DIP Facility at the relevant time of determination shall constitute the “Required DIP Lenders.”
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credit bid for any or all of the Assets securing their respective facilities.  The DIP Lenders, the DIP
Agent, and the Prepetition Agents shall be permitted, pursuant to section 363(k) of the Bankruptcy
Code, to credit bid all or any portion of the Obligations, under (and as defined in) each of the
Prepetition Credit Agreements, as applicable, to acquire the Assets (each dollar of such obligations
that is credit bid shall be treated the same as a dollar of cash); provided that the DIP Lenders and
the DIP Agent agree, solely in the event that the Company receives a Bid or series of Bids by the
Bid Deadline that is not less than the Minimum Bid Requirement, then the DIP Lenders and the
DIP Agent shall not credit bid for the Assets.  Notwithstanding anything to the contrary herein,
nothing in these Bidding Procedures shall be considered as a waiver of any other party in interest
to object to, or seek to limit, the credit bid during the Challenge Period under section 363(k) of the
Bankruptcy Code; provided, however, that this reservation of rights is not intended to, and does
not, expand or limit the Challenge Period or the Challenge rights provided for under the DIP Order.
Potential Stalking Horse
The Debtors may, pursuant to these Bidding Procedures and subject to the consent of the
Required DIP Lenders, (i) designate one or more Qualified Bidders that submit a Qualified Bid for
all or any portion of the Assets a stalking horse bidder (the “Stalking Horse Bidder”), whose
Qualified Bid shall serve as the stalking horse bid (the “Stalking Horse Bid”), and (ii) execute,
subject to higher or otherwise better offers consistent with these Bidding Procedures, one or more
purchase agreements memorializing the proposed transaction set forth in the Stalking Horse Bid
(a “Stalking Horse APA”), which may include a break-up fee of or no more than 3.0% of the total
cash consideration payable under such Stalking Horse APA, inclusive of any expense
reimbursement (the “Bid Protections”) on or before July 1, 2024, at 9:00 p.m., (prevailing
Eastern Time) (the “Stalking Horse Bidder Designation”).  To the extent the Debtors, subject to
the consent of the Required DIP Lenders, designate more than one Stalking Horse Bidder pursuant
to the Bidding Procedures, no two Stalking Horse Bidders will be designated with respect to any
of the same Assets.  The Debtors shall not pay Bid Protections to any Stalking Horse Bidder on
account of the portion of the purchase price of such Bid that is a credit bid, assumption of liabilities,
or other non-cash (or cash-equivalent) consideration, nor provide any Bid Protections to an insider
or affiliate of the Debtors.
To the extent the Debtors, consistent with these Bidding Procedures, determine, subject to
the consent of the Required DIP Lenders, to offer Bid Protections to any Stalking Horse Bidder,
the Debtors shall disclose such Bid Protections in a corresponding notice designation such Stalking
Horse Bidder (the “Stalking Horse Notice”).  A Stalking Horse Notice, if filed, shall also include
(a) the identity of the Stalking Horse Bidder; (b) the amount of the Stalking Horse Bid; (c) a copy
of the Stalking Horse APA; (d) the proposed Bid Protections to be provided to the Stalking Horse
Bidder; and (e) a declaration in support of the proposed Bid Protections, which includes whether
the Stalking Horse Bidder has any connection with the Debtors other than that which arises from
the Stalking Horse Bid.  Any objection to (i) the Bid Protections set forth in the Stalking Horse
Notice or (ii) the designation of the Stalking Horse Bidder (a “Stalking Horse Objection”), shall
be filed no later than five (5) days after the filing of the Stalking Horse Notice at 4:00 p.m.
(prevailing Eastern Time).  If a timely Stalking Horse Objection is filed, the Debtors are
authorized to seek an expedited hearing with respect to the Stalking Horse Objection on not less
than three (3) calendar days’ notice.  Absent any timeline Stalking Horse Objection, the Court may
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approve the the Bid Protections set forth in the Stalking Horse Notice and the designation of the
Stalking Horse Bidder without further hearing.
If the designation of a Stalking Horse Bidder is approved, any Modified APA may be based
on the Stalking Horse APA.
Auction
If one or more Qualified Bids that, individually or in the aggregate, meet the Minimum Bid
Requirement are received by the Bid Deadline, the Debtors will conduct the Auction to determine,
with the consent of the Required DIP Lenders, the highest and best Qualified Bid.  The
determination of the highest and best Qualified Bid shall take into account any factors the Debtors
in their reasonable business judgment deem relevant to the value and certainty of the Qualified Bid
to the Debtors’ estates and may include, but are not limited to, the following: (i) the amount and
nature of the consideration; (ii) the number, type, and nature of any changes to the Form APA
requested by each Bidder, including the Assets acquired; (iii) the extent to which such
modifications are likely to delay closing of the Sale Transaction contemplated by such Qualified
Bid and the cost to the Debtors of such modifications or delay; (iv) the total consideration to be
received by the Debtors; (v) any contingencies or conditions to closing the Sale Transaction
contemplated by such Qualified Bid; (vi) the likelihood of the Bidder’s ability to close the Sale
Transaction contemplated by such Qualified Bid and the timing thereof; (vii) the tax consequences
of such Qualified Bid; and (viii) any other qualitative or quantitative factor that the Debtors deem
reasonably appropriate under the circumstances (collectively, the “Bid Assessment Criteria”).
If only one Qualified Bid that meets the Minimum Bid Requirement or no Qualified Bid
that meets the Minimum Bid Requirement is received by the Bid Deadline, the Debtors shall cancel
the Auction.  For the avoidance of doubt and notwithstanding anything else herein or in the Bidding
Procedures, if there are no Qualified Bids that, individually or in the aggregate, meet the Minimum
Bid Requirement, the Debtors shall terminate the sale process and cancel the Auction.  For the
further avoidance of doubt, a Bid or series of Bid(s) shall not constitute a “Qualified Bid” unless
such Bid(s) (a) meets the Minimum Bid Requirement and (b) contemplates that the aggregate cash
sale proceeds of such Bid(s) shall be indefeasibly paid to the DIP Lenders immediately upon the
closing of the Sale Transaction(s) subject to deductions for wind-down costs and expenses required
to be paid pursuant to the DIP Orders and the RSA (which such deducted amounts shall be paid to
the Debtors).
A.
Location and Date of Auction
The Auction, if any, shall take place on or before July 24, 2024, at 10:00 a.m., (prevailing
Eastern Time) in person at the office of Kirkland & Ellis LLP, 333 West Wolf Point Plaza,
Chicago, IL 60654 and/or via remote video at the Debtors’ election.  If held, the Auction
proceedings will be transcribed.
B.
Attendees and Participants
Except as otherwise determined by the Debtors, only the following parties, and their
respective representatives and counsel, may attend the Auction: (i) the Debtors, (ii) the United
States Trustee, (iii) any Qualified Bidder, (iv) advisors to the DIP Lenders; (v) any creditors that
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request access to the Auction within 48 hours prior to the date of the Auction, and (vi) any other
parties that the Debtors deem appropriate.  The Debtors shall provide all Qualified Bidders with
notice of all participants attending the Auction at least one (1) day prior to the Auction.
Bidders and their representatives may not communicate or coordinate with one another for
purposes of submitting a Bid or Bids or participating in the Auction without the prior consent of
the Debtors.  All parties are prohibited from (i) engaging in any collusion with respect to the
bidding or sale of any of the Assets described herein or (ii) taking any other action to prevent a
transparent and competitive auction process.
Each Qualified Bidder participating in the Auction must confirm on the record at the
commencement of the Auction that (i) it has not engaged in any of the prohibited actions set forth
in the immediately preceding paragraph, (ii) its Qualified Bid is a good faith bona fide offer and it
intends to consummate the Sale Transaction contemplated by such Qualified Bid if selected as the
Successful Bidder or Back Up Bidder, (iii) it has reviewed, understands and accepts the Bidding
Procedures, and (iv) it has consented to the core jurisdiction of the Bankruptcy Court with respect
to the Sale Transaction, including the Bidding Procedures, the Auction, any Sale Transaction, any
Modified APA, or the construction and enforcement of documents relating to any Sale Transaction
(as described more fully below).
All parties attending the Auction must comply with their applicable confidentiality
agreements.
C.
Conducting the Auction
The Debtors and their professionals shall direct and preside over the Auction and the
Auction shall be transcribed and shall be conducted openly.  Other than as expressly set forth
herein, the Debtors may conduct the Auction in the manner they determine will result in the highest
and best offer for the Assets so long as such conduct is not inconsistent in any material respect
with the other terms and provisions of these Bidding Procedures.
D.
Auction Baseline Bid
The Debtors will notify any other Qualified Bidder participating in the Auction of the
highest and best Qualified Bid received before the Bid Deadline for purposes of constituting the
opening Bid at the Auction (the “Auction Baseline Bid”), and shall provide copies of the Modified
APA and Modified Sale Order (each a “Modified Sale Order”) associated with the Auction
Baseline Bid as soon as practicable (together with the redline copies of such documents, as
described in paragraph C.1 above) prior to the commencement of the Auction.
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E.
Terms of Overbids
An “Overbid” is any bid made at the Auction subsequent to the Debtors’ announcement of
the Auction Baseline Bid.  To submit an Overbid for purposes of this Auction, a Bidder must
comply with the following conditions:
1.
Minimum Overbid Increments.  The Debtors shall determine, with the consent of
the Required DIP Lenders, the minimum bid increments for any particular Asset or subset of
Assets, if applicable.
2.
Terms Are the Same as for Qualified Bids: Except as modified herein, an Overbid
at the Auction must comply with the conditions for a Qualified Bid set forth above; provided,
however, that the DIP Lenders, DIP Agent, and Prepetition Agents shall not be required to comply
with such conditions.  Any Overbid must include, in addition to the amount and the form of
consideration of the Overbid, a description of all changes requested by the Bidder to the Modified
APA or Modified Sale Order in connection therewith.  Any Overbid must remain open and binding
on the Bidder until (a) the Debtors announce that they have received a higher and better Overbid
and (b) such Overbid is not selected as the Back-Up Bid.  To the extent not previously provided,
a Bidder submitting an Overbid at the Auction must submit, as part of its Overbid, written evidence
(in the form of financial disclosure or credit-quality support information or enhancement
reasonably acceptable to the Debtors) reasonably demonstrating such Bidder’s ability to satisfy
the Bidder’s Obligations as set forth in the Qualified Bid requirements set forth in paragraph
C.10.b.  Further, Bidders submitting Overbids may be required to promptly top up their Good Faith
Deposits to equal ten percent (10%) of the cash purchase price contained in such Overbids.
F.
Announcement and Consideration of Overbids
1.
Announcement of Overbids: All Overbids shall be made and received on an open
basis.  The Debtors shall announce at the Auction the material terms of each Overbid, the total
amount of consideration offered in each such Overbid, and the basis for calculating such total
consideration.  The Debtors shall, after submission of each Overbid, promptly inform each
participant in the Auction which Overbid reflects the highest and best Bid, and the Debtors shall
clarify any and all questions that any Qualified Bidder may have regarding such Overbid.
2.
Consideration of Overbids: Subject to the deadlines set forth herein, the Debtors
reserve the right, in their own reasonable business judgment, subject to the consent of the Required
DIP Lenders, to make one or more continuances of the Auction to, among other things: facilitate
discussions between the Debtors and individual Qualified Bidders; allow individual Qualified
Bidders to consider how they wish to proceed; or give Qualified Bidders the opportunity to provide
the Debtors with additional evidence that the Qualified Bidder has sufficient internal resources, or
has received sufficient non contingent debt and/or equity funding commitments, to consummate
the proposed Sale Transaction at the prevailing Overbid amount.
G.
No Round-Skipping
To remain eligible to participate in the Auction, in each round of bidding, (i) each Qualified
Bidder must submit an Overbid with respect to such round of bidding and (ii) to the extent a
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Qualified Bidder fails to submit an Overbid with respect to such round of bidding, such Qualified
Bidder shall be disqualified from continuing to participate in the Auction.
H.
Closing the Auction
The Auction shall continue until there is only one (1) Qualified Bid for the Assets (or one
or more Qualified Bids for discrete portions of the Assets) that the Debtors determine, in their
reasonable business judgment with the consent of the Required DIP Lenders, is (or are) the highest
and best Qualified Bid (or Qualified Bids) at the Auction.  Thereafter, the Debtors shall select,
with the consent of the Required DIP Lenders, such Qualified Bid(s) that is the best Qualified Bid
(each such Qualified Bid, a “Successful Bid,” and the Qualified Bidder submitting any such
Successful Bid, the “Successful Bidder”), taking into account any factors the Debtors reasonably
deem relevant to the value and certainty of the Qualified Bid(s) to the Debtors’ estates and may
include, but are not limited to, the Bid Assessment Criteria, as the winner of the Auction and, at
the time of such selection, shall announce the identity of each Successful Bidder and the amount
and material terms of each Successful Bid to all attendees at the Auction.  Notwithstanding
anything to the contrary herein, no Qualified Bid (other than a credit bid by one or more DIP
Lender, DIP Agent, or Prepetition Agent) may be the Successful Bid unless such Qualified Bid
(which can be a combination of Bids as described above) provides for payment of consideration
at the closing of the Sale Transaction contemplated by such Qualified Bid in an amount equal to
or greater than the aggregate amount of Obligations as defined in the applicable DIP Credit
Agreement and/or Prepetition Credit Agreement that have been credit bid by, or on behalf of, the
DIP Lenders, DIP Agent, and/or the Prepetition Agents, as applicable.  For the avoidance of doubt,
no Qualified Bid shall be a Successful Bid if such bid does not, individually or together with
another Successful Bid, (a) satisfy the Minimum Bid Requirement and (b) contemplate that the
aggregate cash sale proceeds of such Bid(s) shall be indefeasibly paid to the Required DIP Lenders
immediately upon the closing of the Sale Transaction(s) subject to deductions for wind down costs
and expenses required to be paid pursuant to the DIP Orders and the Restructuring Support
Agreement (which such deducted amounts shall be paid to the Debtors).
The Auction shall not conclude until the Successful Bidder(s) submit(s) fully executed sale
and transaction documents memorializing the terms of the Successful Bid(s).
Promptly following the Debtors’ selection of the Successful Bid(s) and the conclusion of
the Auction, the Debtors shall file with the Bankruptcy Court notice of the Successful Bid(s) and
Successful Bidder(s), along with the Modified APA and Modified Sale Order reflecting the
Successful Bid(s).  The Debtors shall not consider any Bids or Overbids submitted after the
Auction has closed, and any and all Bids or Overbids submitted after the conclusion of the Auction
shall be deemed untimely and shall under no circumstances constitute a Bid or Overbid.
I.
Back-Up Bidder
Notwithstanding anything in these Bidding Procedures to the contrary, if an Auction is
conducted, the Qualified Bidder(s) with the next highest and otherwise best Bid to the Successful
Bid(s) at the Auction for the applicable Assets, as determined by the Debtors, in the exercise of
their reasonable business judgment, subject to the consent of the Required DIP Lenders, will be
designated as a back-up bidder (each a “Back-Up Bidder”).  The identity of the Back-Up Bidder(s)
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and the amount and material terms of the Back-Up Bid(s) shall be announced by the Debtors at
the same time the Debtors announce the identity of the Successful Bidder(s).
The Back-Up Bidder(s) shall be required to keep its (or their) initial Qualified Bid(s) (or if
a Back Up Bidder submitted one or more Overbids at the Auction, such Back Up Bidder’s final
Overbid) (each a “Back-Up Bid”) open and irrevocable until the earlier of (i) the closing of the
Sale Transaction contemplated by the applicable Successful Bid and (ii) 5:00 p.m. (prevailing
Eastern Time) on the date that is sixty (60) days after the date of entry of the Sale Order, which
date will be extended for an additional thirty (30) days if the only condition to closing the
applicable Successful Bid on the sixtieth (60th) day after entry of the Sale Order is satisfaction of
regulatory approvals required under the applicable Modified APA.
If a Successful Bid is terminated for any reason prior to consummation of the Sale
Transaction contemplated thereby (a “Successful Bid Failure”), the Debtors will be authorized,
without further order of the Bankruptcy Court, subject to the consent of the Required DIP Lenders,
to consummate the Sale Transaction contemplated by the applicable Back-Up Bid with the
applicable Back-Up Bidder; provided that the Debtors shall provide prompt notice of such
Successful Bid Failure and the Debtors shall post a notice on the docket of the Chapter 11 Cases
regarding the Successful Bid Failure and the consummation of such Sale Transaction with the
applicable Back Up Bidder.  In the case of a Successful Bid Failure, the Successful Bidder’s
deposit shall be forfeited to the Debtors or returned to the applicable Successful Bidder in
accordance with the terms of the terminated Modified APA.  The Debtors, on their behalf and on
behalf of each of their respective estates, specifically reserve the right to seek all available
damages, including specific performance, from any defaulting Successful Bidder (including any
Back Up Bidder following a Successful Bid Failure) in accordance with the terms of the Bidding
Procedures, the Bidding Procedures Order, or the Modified APA, as applicable.
J.
Notice of Bid Results
Absent further order or direction of the Court, the Debtors shall file copies of the following:
(a) a notice designating each Successful Bid and the Back-Up Bid, if any, and the terms of each
such bid (the “Successful Bidder Notice”) and (b) final form(s) of order(s) approving the Sale
Transaction(s) as agreed upon between the Debtors and the Successful Bidder(s) (the “Sale
Order(s)”).  Further, the Debtors shall serve, by overnight mail, the Successful Bidder Notice and
Sale Order(s), along with any adequate assurance materials, upon affected Contract Counterparties
as soon as reasonably practicable following the conclusion of the Auction.
K.
Sale Hearing and Approval of the Sale Transaction
A hearing to consider the approval of the Sale Transaction (the “Sale Hearing”), is currently
scheduled to take place on July 29, 2024, at 10:00 a.m., (prevailing Eastern Time), before
Honorable [￿], at the United States Bankruptcy Court for the District of Delaware, 824 N Market
Street, 6th Floor, Courtroom No. [￿], Wilmington, Delaware 19801 or conducted consistent with
the procedures established pursuant to the Bankruptcy Court.
At the Sale Hearing, certain findings will be sought from the Bankruptcy Court, including,
among other things, that: (1) the Auction was conducted (if held) and each Successful Bidder was
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selected, in each case in accordance with the Bidding Procedures; (2) the Auction (if held) was fair
in substance and procedure; (3) the Successful Bid(s) and Back-Up Bid(s) were Qualified Bids as
defined in the Bidding Procedures; and (4) consummation of any Sale Transaction as contemplated
by the Successful Bid(s) in the Auction will provide the highest and best offer for the Assets and
is in the best interests of the Debtors and their estates.  The Sale Hearing may be continued to a
later date by the Debtors, subject to the consent of the Required DIP Lenders, by sending notice
prior to, or making an announcement at, the Sale Hearing (subject in all cases to approval of the
Bankruptcy Court).
All general objections to the Sale Transaction and entry of any Sale Order must (i) be in
writing; (ii) comply with the Bankruptcy Code, Bankruptcy Rules, Local Rules, and all orders of
the Bankruptcy Court; (iii) state with particularity the legal and factual basis for the objection and
the specific grounds therefor; and (iv) be filed with the Bankruptcy Court and served so as to be
actually received by the Debtors and counsel to the Debtors on July 22, 2024, at 4:00 p.m.,
(prevailing Eastern Time).
All Post-Auction Objections must (i) be in writing; (ii) comply with the Bankruptcy Code,
Bankruptcy Rules, Local Rules, and all orders of the Bankruptcy Court; (iii) state with particularity
the legal and factual basis for the objection and the specific grounds therefor; and (iv) be filed with
the Bankruptcy Court and served so as to be actually received by no later than July 25, 2024, at
4:00 p.m., (prevailing Eastern Time) on the Notice Parties.
L.
Additional Procedures
The Debtors may announce at the Auction additional procedural rules that are reasonable
under the circumstances for conducting the Auction so long as such rules are not inconsistent in
any material respect with the Bidding Procedures and do not impose additional requirements on
the DIP Agent or the Prepetition Agents; provided that any Qualified Bidder shall have the right
to request a telephonic hearing before the Bankruptcy Court in the event the Qualified Bidder
disputes that the proposed additional rule is reasonable or not inconsistent in any material respect
with the Bidding Procedures or does not impose additional requirements on the DIP Agent or the
Prepetition Agents.
Consent to Jurisdiction and Authority as Condition to Bidding
All Qualified Bidders shall be deemed to have (1) consented to the jurisdiction of the
Bankruptcy Court to enter an order or orders, which shall be binding in all respects, in any way
related to the Debtors, these Chapter 11 Cases, the Bidding Procedures, any Modified APA, the
Auction, any Sale Transaction, or the construction and enforcement of documents relating to any
Sale Transaction, (2) WAIVED ANY RIGHT TO A JURY TRIAL IN CONNECTION WITH
ANY DISPUTES RELATING TO THE DEBTORS, THESE CHAPTER 11 CASES, THE
BIDDING PROCEDURES, THE AUCTION, any Modified APA, ANY SALE TRANSACTION,
OR THE CONSTRUCTION AND ENFORCEMENT OF DOCUMENTS RELATING TO ANY
SALE TRANSACTION, and (3) consented to entry of a final order or judgment in any way related
to the Debtors, these Chapter 11 Cases, the Bidding Procedures, the Auction, any Modified APA,
any Sale Transaction, or the construction and enforcement of documents relating to any Sale
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Transaction if it is determined that the Bankruptcy Court would lack Article III jurisdiction to enter
such a final order or judgment absent the consent of the parties.
Sale Is As Is/Where Is
Except as may be set forth in the Modified APA, the Assets sold pursuant to the Bidding
Procedures shall be conveyed at the closing of such sale in their then present condition, “AS IS,
WITH ALL FAULTS, AND WITHOUT ANY WARRANTY WHATSOEVER, EXPRESS OR
IMPLIED.”
Return of Good Faith Deposits
The Good Faith Deposits of all Qualified Bidders shall be held in one or more escrow
accounts by the Debtors, but shall not become property of the Debtors’ estates absent further order
of the Bankruptcy Court or as set forth below.  The Good Faith Deposit of any Qualified Bidder
that is neither a Successful Bidder nor a Back-Up Bidder shall be returned to such Qualified Bidder
not later than five (5) Business Days after consummation of the Sale Transaction or upon the
permanent withdrawal of the proposed Sale Transaction.  The Good Faith Deposit of a Back-Up
Bidder, if any, shall be returned to such Back-Up Bidder (or retained by the estates) upon the
termination of such Back Up Bidder’s Bid in accordance with its terms.  If a Successful Bidder
timely closes the Sale Transaction contemplated in the Successful Bid, its Good Faith Deposit shall
be credited towards the purchase price and become property of the estate.  If a Successful Bidder
(or, if the Sale Transaction is to be consummated with the applicable Back-Up Bidder, then such
Back-Up Bidder) fails to consummate the Sale Transaction because of a breach or failure to
perform on the part of such Bidder, then the Debtors and their estates shall be entitled to retain the
Good Faith Deposit of such Successful Bidder (or, if the Sale Transaction is to be consummated
with a Back-Up Bidder, then such Back-Up Bidder) as part of the damages resulting to the Debtors
and their estates for such breach or failure to perform.  For the avoidance of doubt, the Debtors’
retention of a Good Faith Deposit shall not constitute a waiver of any of the Debtors’ legal or
equitable rights relating to a Successful Bidder’s or a Back-Up Bidder’s breach or failure to
perform, and all such rights and remedies are preserved.
Reservation of Rights of the Debtors and Modifications
Except as otherwise provided in the Bidding Procedures Order, the Debtors further reserve
the right as the Debtors may reasonably determine in their discretion to be in the best interest of
the Debtors’ estates, subject to the consent of the Required DIP Lenders, to: (i) determine which
Bidders are Qualified Bidders; (ii) determine which Bids are Qualified Bids; provided that, for the
avoidance of doubt, a Bid or series of Bids shall not constitute a “Qualified Bid” unless such Bid(s)
(a) meets the Minimum Bid Requirement and (b) contemplates that the aggregate cash sale
proceeds of such Bid(s) shall be indefeasibly paid to the DIP Lenders immediately upon the closing
of the Sale Transaction(s) subject to deductions for wind-down costs and expenses required to be
paid pursuant to the DIP Orders and the RSA (which such deducted amounts shall be paid to the
Debtors); (iii) determine which Qualified Bid (or Qualified Bids) is the highest and best bid and
which is the next highest and best bid; (iv) reject any Bid that is (a) inadequate or insufficient, (b)
not in conformity with the requirements of the Bidding Procedures or the requirements of the
Bankruptcy Code or (c) contrary to the best interests of the Debtors and their estates; (v) impose
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21
additional terms and conditions with respect to all potential bidders; (vii) make non-material
modifications to the Bidding Procedures; and (viii) implement additional procedural rules with
respect to the conduct of the Auction that the Debtors determine (together with the Bidding
Procedures, the “Auction Rules”), in their reasonable business judgment, will better promote the
goals of the bidding process and are not inconsistent with any Bankruptcy Court order, the
Bankruptcy Code or any rights of the Prepetition Agents under these Bidding Procedures; provided
that nothing herein shall limit any party in interest’s right to file an objection with the Bankruptcy
Court with respect to any Auction Rules (other than the Bidding Procedures).
Notwithstanding anything to the contrary in these Bidding Procedures, nothing in these Bidding
Procedures or the Bidding Procedures Order shall require the Debtors to take any action or to
refrain from taking any action related to any Sale Transaction to the extent taking or failing to take
such action would be inconsistent with applicable law or the Debtors’ fiduciary obligations, if any,
under applicable law; provided, however, that the Debtors shall promptly provide any Qualified
Bidders and the Required DIP Lenders with notice of such action or inaction and, to the extent any
such action or inaction would constitute a material change from the Bidding Procedures, the
Debtors shall first seek approval from the Bankruptcy Court for such action or inaction.
I.
NOTICING
A.
Bid Notice Parties
Qualified Bids must be submitted in writing to the following parties (collectively, the “Bid
Notice Parties”):
•
the Debtors, c/o Vyaire Medical, Inc., 26125 North Riverwoods Boulevard, Mettawa,
Illinois 60045 (Attn: Rachel Lisenby); and
•
proposed co-counsel for the Debtors, Kirkland & Ellis LLP, 601 Lexington Avenue, New
York,
New
York
10022,
(Attn.:

Joshua
A.
Sussberg,
P.C.
(joshua.sussberg@kirkland.com), and Chris Ceresa (chris.ceresa@kirkland.com)); and
Kirkland & Ellis LLP, 333 West Wolf Point Plaza, Chicago, Illinois 60654, (Attn.:  Spencer
A.
Winters,
P.C.
(spencer.winters@kirkland.com)
and
Yusuf
U.
Salloum
(yusuf.salloum@kirkland.com)); and Cole Schotz P.C., 500 Delaware Avenue, Suite 1410,
Wilmington, Delaware 19801, (Attn: Patrick J. Reilley, Esq. (preilley@coleschotz.com),
Stacy L. Newman (snewman@coleschotz.com), Michael E. Fitzpatrick, Esq.
(mfitzpatrick@coleschotz.com),
and
Jack
M.
Dougherty,
Esq.
(jdougherty@coleschotz.com)), and Court Plaza North, 25 Main Street, Hackensack, New
Jersey 07601, (Attn.: Michael D. Sirota, Esq. (msirota@coleschotz.com)).
B.
Sale Notice Parties
The “Sale Notice Parties” shall include the following persons and entities:
•
counsel to any Stalking Horse Bidder;
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22
•
all persons and entities known by the Debtors to have expressed an interest to the Debtors
in a Sale Transaction involving any of the Assets during the past 12 months, including any
person or entity that has submitted a Bid for any of the Assets;
•
all persons and entities known by the Debtors to have asserted any lien, claim, interest or
encumbrance in the Assets (for whom identifying information and addresses are available
to the Debtors), including, for the avoidance of doubt, the DIP Agent (on behalf of the DIP
Lenders) and the Prepetition Agent (on behalf of the Prepetition Lenders);
•
co-counsel to the DIP Lenders, Gibson, Dunn & Crutcher LLP, 200 Park Avenue, New
York, NY 10166-0193 (Attn: Scott J. Greenberg (sgreenberg@gibsondunn.com), Jason
Zachary
Goldstein
(jgoldstein@gibsondunn.com),
Joshua
Brody
(jbrody@gibsondunn.com), and Kevin Liang (KLiang@gibsondunn.com)) and Pachulski
Stang Ziehl & Jones LLP, 919 North Market Street, 17th Floor, Wilmington, DE 19801
(Attn: Laura Davis Jones (ljones@pszjlaw.com));
•
all relevant non-Debtor parties (each, a “Counterparty”) to any Contract that may be
assumed or rejected in connection with a Sale Transaction;
•
all of the Debtors’ known creditors (for whom identifying information and addresses are
available to the Debtors);
•
all of the Debtors’ equity holders;
•
any governmental authority known to have a claim against the Debtors in these Chapter 11
Cases;
•
the office of the U.S. Trustee;
•
all applicable federal, state and local taxing authorities, including the Internal Revenue
Service;
•
the United States Securities and Exchange Commission;
•
the United States Attorney’s Office for the District of Delaware;
•
United States Attorney General’s Office for the District of Delaware;
•
the Office of the Attorney General and the Secretary of State in each state in which the
Debtors operate;
•
all of the parties entitled to notice pursuant to Bankruptcy Rule 2002; and
•
all other parties as directed by the Court.
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23
C.
Sale Notice and Publication Notice
Within two (2) business days after entry of the Bidding Procedures Order, or as soon as
reasonably practicable thereafter, the Debtors will file with the Court, serve on the Sale Notice
Parties and cause to be published on the Claims Agent Website a notice (the “Sale Notice”) setting
forth (A) a description of the Assets available for sale in accordance with these Bidding
Procedures, (B) the date, time and location of the Auction and Sale Hearing, (C) the Sale Transaction
Objection Deadline and Post- Auction Objection Deadline (each as defined in Section X.D below)
and the procedures for filing such objections, and, if applicable, (D) a summary of the material
terms of any Stalking Horse Agreement, including the terms and conditions of any termination
payment or expense reimbursement to be provided thereunder, as of the date of the Sale Notice.
As soon as reasonably practicable after entry of the Bidding Procedures Order, the
Debtors will provide notice of the Sale Hearing through the publication of the Sale Notice, on
the website of the Debtors’ proposed noticing and claims agent to be retained in these
chapter 11 cases, Omni, at www.omniagentsolutions.com/Vyaire.  Within four (4) business
days after entry of the Bidding Procedures Order, or as soon as reasonably practicable
thereafter, the Debtors will provide notice of the Sale Hearing through publication of the Sale
Notice, with any modifications necessary for ease of publication, once in The New York Times
(national edition) (the “Publication Notice”).
D.
Sale Objections and Post-Auction Objections
Objections to a sale of the Assets, including (i) any objection to a sale of the Assets free
and clear of all liens, claims, interests, and encumbrances pursuant to section 363(f) of the
Bankruptcy Code and (ii) entry of any Sale Order shall, by no later than July 22, 2024, at 4:00
p.m., (prevailing Eastern Time) (the “Sale Transaction Objection Deadline”), be filed with the
Court and served on the following parties (collectively, the “Objection Notice Parties”):
•
the Debtors, c/o Vyaire Medical, Inc., 26125 North Riverwoods Boulevard, Mettawa,
Illinois 60045 (Attn: Rachel Lisenby);
•
proposed co-counsel for the Debtors, Kirkland & Ellis LLP, 601 Lexington Avenue, New
York, New York 10022, (Attn.:  Joshua A. Sussberg, P.C. (joshua.sussberg@kirkland.com)
and Chris Ceresa (chris.ceresa@kirkland.com)); and Kirkland & Ellis LLP, 333 West Wolf
Point Plaza, Chicago, Illinois 60654, (Attn.:  Spencer A. Winters, P.C.
(spencer.winters@kirkland.com), Yusuf U. Salloum (yusuf.salloum@kirkland.com), and
Rebecca Marston (rebecca.marston@kirkland.com)); and Cole Schotz P.C., 500 Delaware
Avenue, Suite 1410, Wilmington, Delaware 19801, (Attn: Patrick J. Reilley, Esq.
(preilley@coleschotz.com), Stacy L. Newman (snewman@coleschotz.com), Michael E.
Fitzpatrick, Esq. (mfitzpatrick@coleschotz.com), and Jack M. Dougherty, Esq.
(jdougherty@coleschotz.com)), and Court Plaza North, 25 Main Street, Hackensack, New
Jersey 07601, (Attn.: Michael D. Sirota, Esq. (msirota@coleschotz.com));
•
co-counsel to the DIP Lenders, Gibson, Dunn & Crutcher LLP, 200 Park Avenue, New
York, NY 10166-0193 (Attn: Scott J. Greenberg (SGreenberg@gibsondunn.com), Jason
Zachary
Goldstein
(JGoldstein@gibsondunn.com),
Joshua
Brody
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24
(JBrody@gibsondunn.com), and Kevin Liang (KLiang@gibsondunn.com) and Pachulski
Stang Ziehl & Jones LLP, 919 North Market Street, 17th Floor, Wilmington, DE 19801
(Attn: Laura Davis Jones (ljones@pszjlaw.com));
•
counsel for any relevant Successful Bidder(s); and
•
counsel for any relevant Backup Bidder(s).
Following service of the Notice of Auction Results, Sale Notice Parties may object to the
conduct of the Auction and/or the particular terms of any proposed Sale Transaction in a Successful
Bid, other than with respect to a Stalking Horse Bid (each such objection, a “Post-Auction
Objection”) by no later than later of (i) July 25, 2024, at 4:00 p.m., (prevailing Eastern Time)
and (ii) three (3) days prior to the Sale Hearing (the “Post-Auction Objection Deadline”).  Each
Post-Auction Objection shall be filed with the Court and served on the Objection Notice Parties.
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EXHIBIT 2
Sale Notice
Case 24-11217-BLS    Doc 16    Filed 06/10/24    Page 81 of 97

IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
)
In re:
)
Chapter 11
)
VYAIRE MEDICAL, INC., et al.,1
)
Case No. 24-11217 (___)
)
Debtors.
)
[(Jointly Administered)]
)
NOTICE OF BIDDING PROCEDURES, AUCTION, AND SALE HEARING
PLEASE TAKE NOTICE that on June 9, 2024, the above-captioned debtors and certain
of its subsidiaries (collectively, the “Debtors”) filed the Motion of the Debtors for Entry of an
Order (I) Approving Bidding Procedures in Connection with the Sale of Substantially All of the
Debtors’ Assets, (II) Authorizing the Debtors to Enter Into a Stalking Horse Agreement and
Provide Bid Protections, (III) Approving the Form and Manner of Notice Thereof, (IV) Scheduling
an Auction and Sale Hearing, (IV) Approving Procedures for the Assumption and Assignment of
Contracts, (V) Approving the Sale of the Debtors’ Assets Free and Clear, and (VI) Granting
Related Relief [Docket No. [●]] (the “Sale Motion”)2 with the United States Bankruptcy Court for
the District of Delaware (the “Court”) seeking, among other things, entry of an order (the “Sale
Order”) authorizing and approving:  (a) the sale or sales of all, substantially all, or any portion of
the Debtors’ assets, free and clear of liens, claims, encumbrances, and other interests, except as set
forth in the applicable Stalking Horse Agreement, if any, or an alternative asset purchase
agreement with a Successful Bidder for up to substantially all the assets of the Debtors (the “Sale”);
and (b) the assumption and assignment of certain executory contracts and unexpired leases
(collectively, the “Contracts”).
PLEASE TAKE FURTHER NOTICE that the Debtors are soliciting offers for the
purchase of some, all, or substantially all of the assets of the Debtors’ assets, including bids
exclusively for the assets of the Debtors’ Ventilation business and exclusively for the assets of the
Debtors’ Respiratory Diagnostics business, as well as bids on any combination up to all of the
Debtors’ assets, consistent with the bidding procedures (the “Bidding Procedures”) approved by
the Court by entry of an order on [●] [●], 2024 [Docket No. [●]] (the “Bidding Procedures Order”).
All interested bidders should carefully read the Bidding Procedures and Bidding Procedures
Order.  To the extent that there are any inconsistencies between this notice and the Bidding
1
The last four digits of Debtor Vyaire Medical, Inc.’s federal tax identification number are 6495.  A complete list
of each of the Debtors in these chapter 11 cases and each such Debtor’s federal tax identification number may be
obtained
on
the
website
of
the
Debtors’
proposed
claims
and
noticing
agent
at
https://omniagentsolutions.com/Vyaire.  The location of Debtor Vyaire Medical, Inc.’s principal place of business
and the Debtors’ service address in these chapter 11 cases is 26125 North Riverwoods Boulevard, Mettawa,
Illinois, USA 60045.
2
Capitalized terms used herein but not otherwise defined shall have the meanings ascribed to such terms in the
Sale Motion or Bidding Procedures Order, as applicable.
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2
Procedures or Bidding Procedures Order, the Bidding Procedures or Bidding Procedures Order, as
applicable, shall govern in all respects.
PLEASE TAKE FURTHER NOTICE that, if the Debtors so choose to designate one or
more stalking horse bidders, the deadline for designating a stalking horse bidder is on or before
July 1, 2024, at 4:00 p.m., (prevailing Eastern Time) (the “Stalking Horse Bidder Designation
Deadline”).
PLEASE TAKE FURTHER NOTICE that, if the Debtors so choose to designate one or
more stalking horse bidders, any objection to Bid Protections set forth in (i) the Stalking Horse
Notice, or (ii) the form of Stalking Horse Order (a “Stalking Horse Objection”), shall be filed no
later than four (4) days after the filing of the Stalking Horse Notice at 4:00 p.m., (prevailing
Eastern Time) (the “Stalking Horse Objection Deadline”).
PLEASE TAKE FURTHER NOTICE that, if the Debtors receive qualified competing
bids within the requirements and time frame specified by the Bidding Procedures, the Debtors will
conduct an auction (the “Auction”) of the Assets on July 24, 2024, at 10:00 a.m., (prevailing
Eastern Time) virtually through an online platform (or at any other location or electronically as
the Debtors may hereafter designate).
PLEASE TAKE FURTHER NOTICE that the Debtors will seek approval of the Sale at
a hearing scheduled to commence on July 29, 2024, at 10:00 a.m., (prevailing Eastern Time)
(the “Sale Hearing”) before the Honorable [●], United States Bankruptcy Judge for the Bankruptcy
Court for the District of Delaware, 824 North Market Street, 3rd Floor, Courtroom No. [●],
Wilmington, Delaware 19801.
PLEASE TAKE FURTHER NOTICE that, except as otherwise set forth in the Bidding
Procedures Order, including with respect to any objections to proposed cure amounts or the
assumption and assignment of Contracts, objections to the relief requested in the Sale Motion must:
(a) be in writing; (b) conform to the applicable provisions of the Bankruptcy Rules and the Local
Rules; (c) state with particularity the legal and factual bases for the objection and the specific
grounds therefor; and (d) be filed with the Court and served so as to be actually received on or
within fourteen (14) days following service of any notice of proposed assumption and
assignment by the parties in the table below.
PLEASE TAKE FURTHER NOTICE that, except as otherwise set forth in the Bidding
Procedures Order, any objections to the auction proceedings, or the relief requested in the Sale
Motion must:  (a) be in writing; (b) conform to the applicable provisions of the Bankruptcy Rules
and the Local Rules; (c) state with particularity the legal and factual bases for the objection and
the specific grounds therefor; and (d) be filed with the Court and served so as to be
actually received on or before the Post-Auction Objection and Sale Transaction Objection
Deadlines,  on July 25, 2024, at 4:00 p.m., (prevailing Eastern Time) and July 22, 2024 at
4:00 p.m. (prevailing Eastern Time), respectively, by the parties below:
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3
[Proposed] Co-Counsel to the Debtors
[Proposed] Co-Counsel to the Debtors
Kirkland & Ellis LLP
601 Lexington Ave
New York, New York 10022
Attn. Joshua A. Sussberg, P.C.
Chris Ceresa
Email: joshua.sussberg@kirkland.com
chris.ceresa@kirkland.com
Kirkland & Ellis LLP
333 West Wolf Point Plaza
Chicago, Illinois 60654
Attn.: Spencer Winters, P.C.
Yusuf U. Salloum
Email: spencer.winters@kirkland.com
yusuf.salloum@kirkland.com
Cole Schotz, P.C.
500 Delaware Avenue, Suite 1410
Wilmington, Delaware 19801
Attn: Patrick J. Reilley, Esq.
Email: preilley@coleschotz.com
Cole Schotz, P.C.
Court Plaza North, 25 Main Street
Hackensack, New Jersey 07601
Attn:  Michael D. Sirota, Esq.
Email: msirota@coleschotz.com
The United States Trustee
Counsel to the Stalking Horse Bidder
Office of the United States Trustee
for the District of Delaware
844 King Street, Suite 2207, Lockbox 35,
Wilmington, Delaware 19801
Attn. Benjamin A. Hackman
Benjamin.A.Hackman@usdoj.gov
[●]
[Street Address]
[City],[State][Zip Code]
Attn.:  [●]
Email: [●]
CONSEQUENCES OF FAILING TO TIMELY MAKE AN OBJECTION
ANY PARTY OR ENTITY WHO FAILS TO TIMELY MAKE AN OBJECTION TO
THE SALE ON OR BEFORE THE SALE OBJECTION DEADLINE IN ACCORDANCE
WITH THE BIDDING PROCEDURES ORDER SHALL BE FOREVER BARRED FROM
ASSERTING ANY OBJECTION TO THE SALE, INCLUDING WITH RESPECT TO THE
TRANSFER OF THE DEBTORS’ ASSETS FREE AND CLEAR OF ALL LIENS, CLAIMS,
ENCUMBRANCES, AND OTHER INTERESTS, EXCEPT AS SET FORTH IN THE
APPLICABLE PURCHASE AGREEMENT.
PLEASE TAKE FURTHER NOTICE that copies of the Sale Motion,
Bidding Procedures, and Bidding Procedures Order, as well as all related exhibits, is available:  (a)
free of charge upon request to Omni Agent Solutions, Inc. (the notice and claims agent retained in
these chapter 11 cases) by calling (866) 956-2140 (U.S./Canada) or (818) 666-3635 (International);
(b) by
visiting
the
website
maintained
in
these
chapter 11
cases
at
https://omniagentsolutions.com/Vyaire;
or
(c) for
a
fee
via
PACER
by
visiting
http://www.deb.uscourts.gov.
PLEASE TAKE FURTHER NOTICE that you may obtain additional information
concerning the above-captioned chapter 11 cases at the website maintained in these chapter 11
cases at https://omniagentsolutions.com/Vyaire.
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4
Dated: [●], 2024
Wilmington, Delaware
/s/ DRAFT
COLE SCHOTZ P.C.
KIRKLAND & ELLIS LLP
Patrick J. Reilley, Esq. (DE Bar No. 4451)
KIRKLAND & ELLIS INTERNATIONAL LLP
500 Delaware Avenue, Suite 1410
Joshua A. Sussberg, P.C. (pro hac vice admission pending)
Wilmington, Delaware 19801
601 Lexington Ave
Telephone:
(302) 652-3131
New York, New York 10022
Facsimile:
(302) 652-3117
Telephone:
(212) 446-4800
Email:
preilley@coleschotz.com
Facsimile:
(212) 446-4900
Email:
joshua.sussberg@kirkland.com
- and -
- and -
Michael D. Sirota, Esq. (pro hac vice admission pending)
Warren A. Usatine, Esq (pro hac vice admission pending)
Spencer A. Winters, P.C. (pro hac vice admission pending)
Court Plaza North, 25 Main Street
Yusuf U. Salloum (pro hac vice admission pending)
Hackensack, New Jersey 07601
333 West Wolf Point Plaza
Telephone:
(201) 489-3000
Chicago, Illinois 60654
Facsimile:
(201) 489-1536
Telephone:
(312) 862-2000
Email:
msirota@coleschotz.com
Facsimile:
(312) 862-2200
wusatine@coleschotz.com
Email:
spencer.winters@kirkland.com
yusuf.salloum@kirkland.com
Proposed Co-Counsel to the Debtors
Proposed Co-Counsel to the Debtors
and Debtors in Possession
and Debtors in Possession
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EXHIBIT 3
Potentially Assumed and Assigned Contract Notice
Case 24-11217-BLS    Doc 16    Filed 06/10/24    Page 86 of 97

IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
)
In re:
)
Chapter 11
)
VYAIRE MEDICAL, INC., et al.,1
)
Case No. 24-11217 (___)
)
Debtors.
)
[(Jointly Administered)]
)
FIRST NOTICE TO CONTRACT PARTIES OF POTENTIALLY
ASSUMED AND ASSIGNED EXECUTORY CONTRACTS AND UNEXPIRED LEASES
YOU ARE RECEIVING THIS NOTICE BECAUSE YOU
OR ONE OF YOUR AFFILIATES IS A COUNTERPARTY TO AN
EXECUTORY CONTRACT OR UNEXPIRED LEASE WITH ONE OR MORE
OF THE DEBTORS AS SET FORTH ON EXHIBIT A ATTACHED HERETO.
PLEASE TAKE NOTICE that on [●] [●], 2024, the United States Bankruptcy Court for
the District of Delaware (the “Court”) entered the Order (I) Approving Bidding Procedures in
Connection with the Sale of Substantially All of the Debtors’ Assets, (II) Authorizing the Debtors
to Enter into a Stalking Horse Agreement and Provide Bid Protections, (III) Approving the Form
and Manner of Notice Thereof, (IV) Scheduling an Auction and Sale Hearing, (V) Approving
Procedures for the Assumption and Assignment of Contracts, (VI) Approving the Sale of the
Debtors’ Assets Free and Clear, and (VII) Granting Related Relief [Docket No. [●]] (the “Bidding
Procedures Order”),2 authorizing the Debtors to conduct an auction (the “Auction”) under certain
circumstances to select the party to purchase the Debtors’ assets.  The Auction will be governed
by the bidding procedures approved pursuant to the Bidding Procedures Order (attached to the
Bidding Procedures Order as Exhibit 1, the “Bidding Procedures”).
PLEASE TAKE FURTHER NOTICE that, pursuant to the Bidding Procedures and the
terms of any Successful Bid, the Debtors may assume and assign to the Successful Bidder the
contracts or agreements listed on Exhibit A (each, a “Potentially Assumed and Assigned
Contract”) to which you are a counterparty, upon approval of the Sale.  The Debtors have
conducted a review of their books and records and have determined that the cure amount for unpaid
1
The last four digits of Debtor Vyaire Medical, Inc.’s federal tax identification number are 6495.  A complete list
of each of the Debtors in these chapter 11 cases and each such Debtor’s federal tax identification number may be
obtained
on
the
website
of
the
Debtors’
proposed
claims
and
noticing
agent
at
https://omniagentsolutions.com/Vyaire.  The location of Debtor Vyaire Medical, Inc.’s principal place of business
and the Debtors’ service address in these chapter 11 cases is 26125 North Riverwoods Boulevard, Mettawa,
Illinois, USA 60045.
2
All capitalized terms used but not otherwise defined herein shall have the meaning ascribed to them in the Bidding
Procedures Order or the Sale Motion (as defined in the Bidding Procedures Order), as applicable.
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2
monetary obligations under such Potentially Assumed and Assigned Contracts is as set forth on
Exhibit A attached hereto (the “Cure Amounts”).
PLEASE TAKE FURTHER NOTICE that if you disagree with the proposed Cure
Amounts, object to a proposed assignment to the Successful Bidder of any Potentially Assumed
and Assigned Contract, your objection must: (i) be in writing; (ii) comply with the applicable
provisions of the Bankruptcy Rules, Local Bankruptcy Rules, and any order governing the
administration of these chapter 11 cases; (iii) state with specificity the nature of the objection and,
if the objection pertains to the proposed Cure Amounts, state the correct cure amount alleged to be
owed to the objecting Contract Counterparty, together with any applicable and appropriate
documentation in support thereof; and (iv) be filed with the Court and served and actually
received within fourteen (14) calendar days after service of the this notice (the “Assumption
and Assignment Objection Deadline”) by the Court and the following parties:  (i) [proposed] co-
counsel for the Debtors, Kirkland & Ellis LLP, 601 Lexington Avenue, New York, New York
10022, Attn.:  Joshua A. Sussberg, P.C. (joshua.sussberg@kirkland.com) and Chris Ceresa
(chris.ceresa@kirkland.com), and Kirkland & Ellis LLP, 333 West Wolf Point Plaza, Chicago,
Illinois 60654, Attn.:  Spencer A. Winters, P.C. (spencer.winters@kirkland.com), Yusuf U.
Salloum (yusuf.salloum@kirkland.com), and Rebecca Marston (rebecca.marston@kirkland.com);
(ii) [proposed] co˗counsel to the Debtors, Cole Schotz P.C., 500 Delaware Avenue, Suite 1410,
Wilmington, Delaware 19801, Attn: Patrick J. Reilley, Esq. (preilley@coleschotz.com), Michael
E. Fitzpatrick, Esq. (mfitzpatrick@coleschotz.com), and Jack M. Dougherty, Esq.
(jdougherty@coleschotz.com), and Cole Schotz P.C., Court Plaza North, 25 Main Street,
Hackensack, New Jersey 07601, Attn.: Michael D. Sirota, Esq. (msirota@coleschotz.com); and
(iii) the Debtors’ [proposed] investment banker, PJT Partners LP, 280 Park Avenue, New York,
New York 10017, Attn:  Michael Schlappig (schlappig@pjtpartners.com), Jaimie Baird
(baird@pjtpartners.com), and Dylan Friesner (friesner@pjtpartners.com) (v) counsel to the 1L Ad
Hoc Group, (a) Gibson, Dunn & Crutcher LLP,  200 Park Avenue, New York, NY 10166-0193,
Attn.:  Scott J. Greenberg (SGreenberg@gibsondunn.com), Jason Zachary Goldstein
(JGoldstein@gibsondunn.com), Joshua Brody (JBrody@gibsondunn.com), and Kevin Liang
(KLiang@gibsondunn.com) and (b) Pachulski Stang Ziehl & Jones LLP, 919 North Market Street,
17th Floor, Wilmington, DE 19801, Attn.: Laura Davis Jones (ljones@pszjlaw.com); (vi) the
United States Trustee, 844 King Street, Suite 2207, Lockbox 35, Wilmington, Delaware 19801,
Attn.: Benjamin A. Hackman (Benjamin.A.Hackman@usdoj.gov).
PLEASE TAKE FURTHER NOTICE that no later than July 24, 2024, or as soon as
reasonably practicable after the close of the Auction, the Debtors shall (a) file the Successful
Bidder Notice with the Court (which notice shall identify the Successful Bidder, the amount of the
Successful Bid, the Back-Up Bid, and the amount of the Back-Up Bid(s), and include the final
form(s) of the Sale Order(s)), and (b) cause the Successful Bidder Notice to be published on the
Debtors’ restructuring website, https://omniagentsolutions.com/Vyaire.  Further, the Debtors shall
serve, by overnight mail, the Successful Bidder Notice and Sale Order(s), along with any adequate
assurance materials, upon affected Contract Counterparties as soon as reasonably practicable
following the conclusion of the Auction.
PLEASE TAKE FURTHER NOTICE that if you object to the conduct of the Auction and/or
the particular terms of any proposed Sale Transaction in a Successful Bid, other than with respect
to a Stalking Horse Bid, your objection must:  (i) be in writing; (ii) comply with the Bankruptcy
Case 24-11217-BLS    Doc 16    Filed 06/10/24    Page 88 of 97

3
Code, Bankruptcy Rules, Local Rules, and all orders of the Bankruptcy Court; (iii) state with
particularity the legal and factual basis for the objection and the specific grounds therefor; and
(iv) be filed with the Bankruptcy Court and served and actually received no later than July 25,
2024, at 4:00 p.m. (prevailing Eastern Time) (the “Post-Auction Objection Deadline”) by the
following parties: by the Court and the following parties:  (i) [proposed] co-counsel for the
Debtors, Kirkland & Ellis LLP, 601 Lexington Avenue, New York, New York 10022,
Attn.:  Joshua A. Sussberg, P.C. (joshua.sussberg@kirkland.com) and Chris Ceresa
(chris.ceresa@kirkland.com), and Kirkland & Ellis LLP, 333 West Wolf Point Plaza,
Chicago, Illinois 60654, Attn.:  Spencer A. Winters, P.C. (spencer.winters@kirkland.com), Yusuf
U.
Salloum
(yusuf.salloum@kirkland.com),
and
Rebecca
Marston
(rebecca.marston@kirkland.com); (ii) [proposed] co˗counsel to the Debtors, Cole Schotz P.C.,
500 Delaware Avenue, Suite 1410, Wilmington, Delaware 19801, Attn: Patrick J. Reilley, Esq.
(preilley@coleschotz.com), Michael E. Fitzpatrick, Esq. (mfitzpatrick@coleschotz.com), and
Jack M. Dougherty, Esq. (jdougherty@coleschotz.com), and Cole Schotz P.C., Court Plaza North,
25 Main Street, Hackensack, New Jersey 07601, Attn.: Michael D. Sirota, Esq.
(msirota@coleschotz.com); and (iii) the Debtors’ [proposed] investment banker, PJT Partners LP,
280
Park
Avenue,
New
York,
New
York
10017,
Attn:

Michael
Schlappig
(schlappig@pjtpartners.com), Jaimie Baird (baird@pjtpartners.com), and Dylan Friesner
(friesner@pjtpartners.com).
PLEASE TAKE FURTHER NOTICE that if no objection to (a) the Cure Amounts(s),
(b) the proposed assignment and assumption of any Potentially Assumed and Assigned Contract,
or (c) adequate assurance of the Successful Bidder’s ability to perform is filed by the Contract
Objection Deadline, then (i) you will be deemed to have stipulated that the Cure Amounts as
determined by the Debtors are correct, (ii) you will be forever barred, estopped, and enjoined from
asserting any additional cure amount under the proposed Potentially Assumed and Assigned
Contract, and (iii) you will be forever barred, estopped, and enjoined from objecting to such
proposed assignment to the Successful Bidder on the grounds that the Successful Bidder has not
provided adequate assurance of future performance as of the closing date of the Sale.
PLEASE TAKE FURTHER NOTICE that any objection to the proposed assumption
and assignment of a Potentially Assumed and Assigned Contract or related Cure Amounts in
connection with the Successful Bid that otherwise complies with these procedures yet remains
unresolved as of the commencement of the Sale Hearing, shall be heard separately from the Sale
Hearing at a later date as may be fixed by the Court.
PLEASE THAT FURTHER NOTICE that, notwithstanding anything herein, the mere
listing of any Potentially Assumed and Assigned Contract on the Cure Notice does not require or
guarantee that such Potentially Assumed and Assigned Contract will be assumed by the Debtors
at any time or assumed and assigned, and all rights of the Debtors and the Successful Bidder with
respect to such Executory Contracts and/or Unexpired Leases are reserved.  Moreover, the Debtors
explicitly reserve their rights, in their reasonable discretion, to seek to reject or assume each
Potentially Assumed and Assigned Contract pursuant to section 365(a) of the Bankruptcy Code
and in accordance with the procedures allowing the Debtors and/or the Successful Bidder, as
applicable, to designate any Potentially Assumed and Assigned Contract as either rejected or
assumed on a post-closing basis.
Case 24-11217-BLS    Doc 16    Filed 06/10/24    Page 89 of 97

4
PLEASE TAKE FURTHER NOTICE that, nothing herein (i) alters in any way the
prepetition nature of the Potentially Assumed and Assigned Contracts or the validity, priority, or
amount of any claims of a counterparty to any Potentially Assumed and Assigned Contract against
the Debtors that may arise under such Potentially Assumed and Assigned Contract, (ii) creates a
postpetition contract or agreement, or (iii) elevates to administrative expense priority any claims
of a counterparty to any Potentially Assumed and Assigned Contract against the Debtors that may
arise under such Potentially Assumed and Assigned Contract.
PLEASE TAKE FURTHER NOTICE that you may obtain additional information
concerning the above-captioned chapter 11 cases at the website maintained in these chapter 11
cases at https://omniagentsolutions.com/Vyaire.
[Remainder of page intentionally left blank]
Case 24-11217-BLS    Doc 16    Filed 06/10/24    Page 90 of 97

Dated: [●], 2024
Wilmington, Delaware
/s/ DRAFT
COLE SCHOTZ P.C.
KIRKLAND & ELLIS LLP
Patrick J. Reilley, Esq. (DE Bar No. 4451)
KIRKLAND & ELLIS INTERNATIONAL LLP
500 Delaware Avenue, Suite 1410
Joshua A. Sussberg, P.C. (pro hac vice admission pending)
Wilmington, Delaware 19801
601 Lexington Ave
Telephone:
(302) 652-3131
New York, New York 10022
Facsimile:
(302) 652-3117
Telephone:
(212) 446-4800
Email:
preilley@coleschotz.com
Facsimile:
(212) 446-4900
Email:
joshua.sussberg@kirkland.com
- and -
- and -
Michael D. Sirota, Esq. (pro hac vice admission pending)
Warren A. Usatine, Esq (pro hac vice admission pending)
Spencer A. Winters, P.C. (pro hac vice admission pending)
Court Plaza North, 25 Main Street
Yusuf U. Salloum (pro hac vice admission pending)
Hackensack, New Jersey 07601
333 West Wolf Point Plaza
Telephone:
(201) 489-3000
Chicago, Illinois 60654
Facsimile:
(201) 489-1536
Telephone:
(312) 862-2000
Email:
msirota@coleschotz.com
Facsimile:
(312) 862-2200
wusatine@coleschotz.com
Email:
spencer.winters@kirkland.com
yusuf.salloum@kirkland.com
Proposed Co-Counsel to the Debtors
Proposed Co-Counsel to the Debtors
and Debtors in Possession
and Debtors in Possession
Case 24-11217-BLS    Doc 16    Filed 06/10/24    Page 91 of 97

Exhibit A
Potentially Assumed and Assigned Contracts1
Potentially Assumed and Assigned Contracts
Unique Vendor
Name
Contract #
Debtor Entity
Description
Total Agg. Cure
Amount
1
The inclusion of a contract on this list (each, a “Contract”) does not constitute an admission as to the executory
or non-executory nature of the Contract, or as to the existence or validity of any claims held by the counterparty
or counterparties to such Contract.  The Debtors reserve all rights with respect to assumption or rejection of any
Contract included on this list.
Case 24-11217-BLS    Doc 16    Filed 06/10/24    Page 92 of 97

EXHIBIT 4
Successful Bidder Notice
Case 24-11217-BLS    Doc 16    Filed 06/10/24    Page 93 of 97

IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
)
In re:
)
Chapter 11
)
VYAIRE MEDICAL, INC., et al.,1
)
Case No. 24-11217 (___)
)
Debtors.
)
[(Jointly Administered)]
)
)
Re:  Docket No. _
NOTICE OF SUCCESSFUL BIDDER
PLEASE TAKE NOTICE that, on June 9, 2024, each of the above-captioned debtors and
certain of its subsidiaries (collectively, the “Debtors”) filed a petition with this Court under
chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”).
PLEASE TAKE FURTHER NOTICE that, on [●], 2024, the United States Bankruptcy
Court for the District of Delaware (the “Court”) entered the Order (I) Approving Bidding
Procedures in Connection with the Sale of Substantially All of the Debtors’ Assets, (II) Authorizing
the Debtors to Enter Into a Stalking Horse Agreement and Provide Bid Protections,
(III) Approving the Form and Manner of Notice Thereof, (IV) Scheduling an Auction and Sale
Hearing, (V) Approving Procedures for the Assumption and Assignment of Contracts,
(VI) Approving the Sale of the Debtors’ Assets Free and Clear, and (VI) Granting Related Relief
[Docket No. [●]] (the “Bidding Procedures Order”), authorizing the Debtors to solicit and select
the highest or otherwise best offer(s) for a sale (or sales) (each, a “Sale Transaction”) of (a) all or
substantially all of the assets or (b) one or more, or any combination of, assets of one or more
Debtors (each, an “Asset,” and collectively, the “Assets”).2
PLEASE TAKE FURTHER NOTICE that, on July 24, 2024, at 10:00 a.m. (prevailing
Eastern Time), pursuant to the Bidding Procedures Order, the Debtors conducted the Auction
with respect to the Assets at the office of Kirkland & Ellis LLP, 333 West Wolf Point Plaza,
Chicago, IL 60654 and/or via remote video at the Debtors’ election.
1
The last four digits of Debtor Vyaire Medical, Inc.’s federal tax identification number are 6495.  A complete list
of each of the Debtors in these chapter 11 cases and each such Debtor’s federal tax identification number may be
obtained
on
the
website
of
the
Debtors’
proposed
claims
and
noticing
agent
at
https://omniagentsolutions.com/Vyaire.  The location of Debtor Vyaire Medical, Inc.’s principal place of business
and the Debtors’ service address in these chapter 11 cases is 26125 North Riverwoods Boulevard, Mettawa,
Illinois, USA 60045.
2
Capitalized terms used but not defined herein have the meanings given to them in the Bidding Procedures Order.
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2
PLEASE TAKE FURTHER NOTICE that, upon the conclusion of the Auction, the
Debtors, in the exercise of their reasonable and good-faith business judgment, have selected (a) [●]
as a Successful Bidder (the “Purchaser”), and (b) [●] as a Back-Up Bidder.
PLEASE TAKE FURTHER NOTICE that, as set forth more fully in that certain
purchase and sale agreement (the “Purchase Agreement”) between the Debtors (collectively,
the “Sellers”) and [●] (as Purchaser), the Successful Bid [●] provides a purchase price of $[●] for
[the Assets].  Further, the Back-Up Bid submitted by the Back-Up Bidder provides for a purchase
price of $[●] for [the Assets].
PLEASE TAKE FURTHER NOTICE that, the Debtors (as Sellers) and [●] (as
Purchaser) entered into the Purchase Agreement to effectuate the Sale Transaction on the terms
set forth in the Purchase Agreement, attached hereto as Exhibit A.
PLEASE TAKE FURTHER NOTICE that the Debtors have determined to effectuate the
Sale Transaction.
PLEASE TAKE FURTHER NOTICE that the proposed forms of order that the Debtors
will seek to have the Court enter to authorize the Sale Transaction under the Purchase Agreement
is attached hereto as Exhibit B.  The Debtors reserve the right to modify such proposed order prior
to the Sale Hearing.
PLEASE TAKE FURTHER NOTICE that the Debtors will seek approval of the Sale
Transaction of these Assets to the Purchaser at the Sale Hearing scheduled to commence on
July 29, 2024, at 10:00 a.m., (prevailing Eastern Time) before the Honorable [●], United States
Bankruptcy Judge for the Bankruptcy Court for the District of Delaware, at 824 North Market
Street, 6th Floor, Courtroom No. [●], Wilmington, Delaware 19801.  The Sale Hearing may be
adjourned by announcement in open Court or on the Court’s calendar without any further notice
required.
PLEASE TAKE FURTHER NOTICE that objections specific to a Successful Bidder
must be made on or before July 22, 2024, at 4:00 p.m., (prevailing Eastern Time) (the “Sale
Transaction Objection Deadline”).  Objections specific to the Auction must be made on or before
July 25, 2024, at 4:00 p.m., (prevailing Eastern Time) (the “Post-Auction Objection Deadline”).
Objections must be made in writing, state the basis of such objection with specificity, and shall be
filed with the Court, with a courtesy copy to chambers, and must be filed no later than the Auction
Objection Deadline, as applicable, and must be served on the following parties:  (i) the Debtors,
26125 North Riverwoods Boulevard, Mettawa, Illinois, 60045; (ii) proposed co-counsel for the
Debtors, Kirkland & Ellis LLP, 601 Lexington Avenue, New York, New York 10022,
Attn.:  Joshua A. Sussberg, P.C. (joshua.sussberg@kirkland.com) and Chris Ceresa
(chris.ceresa@kirkland.com), and Kirkland & Ellis LLP, 333 West Wolf Point Plaza, Chicago,
Illinois 60654, Attn.:  Spencer A. Winters, P.C. (spencer.winters@kirkland.com), Yusuf U.
Salloum (yusuf.salloum@kirkland.com), and Rebecca Marston (rebecca.marston@kirkland.com);
(iii) proposed co˗counsel to the Debtors, Cole Schotz P.C., 500 Delaware Avenue, Suite 1410,
Wilmington, Delaware 19801, Attn: Patrick J. Reilley, Esq. (preilley@coleschotz.com), and Cole
Schotz P.C., Court Plaza North, 25 Main Street, Hackensack, New Jersey 07601, Attn.: Michael
D. Sirota, Esq. (msirota@coleschotz.com); and (iv) the Debtors’ proposed investment banker, PJT
Case 24-11217-BLS    Doc 16    Filed 06/10/24    Page 95 of 97

3
Partners LP, 280 Park Avenue, New York, New York 10017, Attn:  Michael Schlappig
(schlappig@pjtpartners.com), Jaimie Baird (baird@pjtpartners.com), and Dylan Friesner
(friesner@pjtpartners.com). (v) counsel to the 1L Ad Hoc Group, (i) Gibson, Dunn & Crutcher
LLP,  200 Park Avenue, New York, NY 10166-0193, Attn.:  Scott J. Greenberg
(SGreenberg@gibsondunn.com), Jason Zachary Goldstein (JGoldstein@gibsondunn.com),
Joshua Brody (JBrody@gibsondunn.com), and Kevin Liang (KLiang@gibsondunn.com) and
(ii) Pachulski Stang Ziehl & Jones LLP, 919 North Market Street, 17th Floor, Wilmington, DE
19801, Attn.: Laura Davis Jones (ljones@pszjlaw.com); (vi) the United States Trustee, 844 King
Street, Suite 2207, Lockbox 35, Wilmington, Delaware 19801, Attn.: Benjamin A. Hackman
(Benjamin.A.Hackman@usdoj.gov); and (vii) any other party that has requested notice pursuant
to Bankruptcy Rule 2002.
PLEASE TAKE FURTHER NOTICE that at the Sale Hearing, the Debtors will seek the
Court’s approval of the Successful Bid by the Purchaser.  Unless the Court orders otherwise, the
Sale Hearing shall be an evidentiary hearing on matters relating to the Sale Transaction, and there
will be no further bidding at the Sale Hearing.
PLEASE TAKE FURTHER NOTICE that, unless an objection is timely filed regarding
the assumption or assignment to the Successful Bidder of a contract or lease, such contract or lease
shall be assumed and assigned to the Successful Bidder as of [●] (the “Assignment Date”).
PLEASE TAKE FURTHER NOTICE that this Successful Bidder Notice is subject to
the terms and conditions of the Bidding Procedures Motion and the Bidding Procedures Order,
with such Bidding Procedures Order controlling in the event of any conflict, and the Debtors
encourage parties in interest to review such documents in their entirety.
PLEASE TAKE FURTHER NOTICE that you may obtain additional information
concerning the above-captioned chapter 11 cases at the website maintained in these chapter 11
cases at https://omniagentsolutions.com/Vyaire.
[Remainder of page intentionally left blank]
Case 24-11217-BLS    Doc 16    Filed 06/10/24    Page 96 of 97

Dated: [●], 2024
Wilmington, Delaware
/s/ DRAFT
COLE SCHOTZ P.C.
KIRKLAND & ELLIS LLP
Patrick J. Reilley, Esq. (DE Bar No. 4451)
KIRKLAND & ELLIS INTERNATIONAL LLP
500 Delaware Avenue, Suite 1410
Joshua A. Sussberg, P.C. (pro hac vice admission pending)
Wilmington, Delaware 19801
601 Lexington Ave
Telephone:
(302) 652-3131
New York, New York 10022
Facsimile:
(302) 652-3117
Telephone:
(212) 446-4800
Email:
preilley@coleschotz.com
Facsimile:
(212) 446-4900
Email:
joshua.sussberg@kirkland.com
- and -
- and -
Michael D. Sirota, Esq. (pro hac vice admission pending)
Warren A. Usatine, Esq (pro hac vice admission pending)
Spencer A. Winters, P.C. (pro hac vice admission pending)
Court Plaza North, 25 Main Street
Yusuf U. Salloum (pro hac vice admission pending)
Hackensack, New Jersey 07601
333 West Wolf Point Plaza
Telephone:
(201) 489-3000
Chicago, Illinois 60654
Facsimile:
(201) 489-1536
Telephone:
(312) 862-2000
Email:
msirota@coleschotz.com
Facsimile:
(312) 862-2200
wusatine@coleschotz.com
Email:
spencer.winters@kirkland.com
yusuf.salloum@kirkland.com
Proposed Co-Counsel to the Debtors
Proposed Co-Counsel to the Debtors
and Debtors in Possession
and Debtors in Possession
Case 24-11217-BLS    Doc 16    Filed 06/10/24    Page 97 of 97

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