Vyaire - NOL - Motion _KE DRAFT 06.10.2024
- Date
- 2024-06-10
Summary
A motion of the debtors filed June 10, 2024 as Doc 14 in In re Vyaire Medical, Inc., et al., Case No. 24-11217, a Chapter 11 case in the U.S. Bankruptcy Court for the District of Delaware. It asks for interim and final orders approving notification and hearing procedures for certain transfers of, and declarations of worthlessness with respect to, common stock of Debtor Vyaire Holding Company, and directing that transfers in violation of the procedures are null and void ab initio. The motion states the debtors estimated approximately $405 million of U.S. federal NOLs and approximately $127 million of 163(j) Carryforwards as of September 30, 2023. It explains how an ownership change under sections 382 and 383 of the IRC could limit those tax attributes. The 97-page filing ends with a notice form signed for proposed co-counsel Cole Schotz P.C. and Kirkland & Ellis LLP.
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Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 1 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. ) (Joint Administration Requested)
)
MOTION OF DEBTORS FOR ENTRY
OF INTERIM AND FINAL ORDERS (I) APPROVING
NOTIFICATION AND HEARING PROCEDURES FOR
CERTAIN TRANSFERS OF AND DECLARATIONS OF WORTHLESSNESS
WITH RESPECT TO COMMON STOCK AND (II) 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
Relief Requested
1. The Debtors seek entry of interim and final orders substantially in the forms
attached hereto as Exhibit A and Exhibit B (respectively, the “Interim Order” and “Final Order”):
(a) approving certain notification and hearing procedures, substantially in the form of Exhibit 1
attached to the Interim Order and the Final Order (the “Procedures”), related to certain transfers
of, or declarations of worthlessness, with respect to Debtor Vyaire Holding Company’s existing
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 600455.
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.
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 2 of 97
classes of common stock or any Beneficial Ownership3 therein (any such record or Beneficial
Ownership of common stock, collectively, the “Common Stock”); and (b) directing that any
purchase, sale, other transfer of, or declaration of worthlessness with respect to Beneficial
Ownership of Common Stock in violation of the Procedures shall be null and void ab initio. In
addition, the Debtors request that the Court schedule a final hearing within approximately 21 days
from the Petition Date.
Jurisdiction and Venue
2. 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.
3
“Beneficial Ownership” will be determined in accordance with the applicable rules of sections 382 and 383 of the
Internal Revenue Code of 1986, 26 U.S.C. §§ 1–9834 as amended (the “IRC”), and the U.S. Department of the
Treasury regulations thereunder (“Treasury Regulations”) (other than Treasury Regulations
section 1.382-2T(h)(2)(i)(A)), and includes direct, indirect, and constructive ownership (e.g., (1) a holding
company would be considered to beneficially own all equity securities owned by its subsidiaries, (2) a partner in
a partnership would be considered to beneficially own its proportionate share of any equity securities owned by
such partnership, (3) an individual and such individual’s family members may be treated as one individual,
(4) persons and entities acting in concert to make a coordinated acquisition of equity securities may be treated as
a single entity, and (5) a holder would be considered to beneficially own equity securities that such holder has an
Option (as defined herein) to acquire). An “Option” to acquire stock includes all interests described in Treasury
Regulations section 1.382-4(d)(9), including any contingent purchase right, warrant, convertible debt, put, call,
stock subject to risk of forfeiture, contract to acquire stock, or similar interest, regardless of whether it is
contingent or otherwise not currently exercisable.
2
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3. Venue is proper pursuant to 28 U.S.C. §§ 1408 and 1409.
4. The statutory bases for the relief requested herein are sections 105, 362, and 541 of
title 11 of the United States Code, 11 U.S.C. §§ 101–1532 (the “Bankruptcy Code”), rules 6003 of
the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”), and Local Rules 2002-1,
and 9013-1(m).
Background
5. Vyaire Medical, Inc., together with its direct and indirect subsidiaries (collectively,
“Vyaire” or the “Company”), is a global company focused on developing products and providing
related services for the diagnosis, treatment, and monitoring of various cardiology, pulmonology,
and respiratory health conditions. With a 70-year history of pioneering breathing technology, the
integrated solutions offered by the Company help enable, enhance, and extend
lives. Headquartered in Mettawa, Illinois, Vyaire operates approximately 27 offices and
manufacturing facilities, and employs approximately 950 individuals around the world.
The Company has a global reach, and Vyaire products are available in more than 100 countries.
Its customers are the hospitals, health centers, and private practice facilities delivering
life-enhancing products and services to patients every day.
6. On June 9, 2024 (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.
3
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The Tax Attributes
7. Companies generate various Tax Attributes (as defined below) through the course
of their operations. For example, a company generates net operating losses (“NOLs”) if the
operating expenses it has incurred exceed the revenues it has earned during a single tax year. A
company may apply or “carry forward” 4 NOLs to reduce future tax payments (subject to certain
conditions discussed below). NOLs arising in taxable years beginning before January 1, 2018,
may be used to offset up to 100 percent of taxable income and NOLs arising in taxable years
beginning after December 31, 2017, may be used to offset up to 80 percent of taxable income. See
Internal Revenue Code of 1986, as amended (the “IRC”) § 172. Generally, a company’s deduction
for net business interest expense is limited to 30 percent of its adjusted taxable income plus certain
other amounts. See IRC § 163. Any business interest expense disallowed is carried forward and
treated as business interest expense in the following tax year (“163(j) Carryforwards”). While
NOLs and 163(j) Carryforwards are the most ubiquitous tax attributes, companies can also
generate a variety of other tax attributes, including general business credits, research and
development credit carryforwards, unused minimum tax credits, foreign tax credits, business tax
credits, and capital loss carryforwards, as the case may be.
8. As discussed below, a company’s Tax Attributes can become subject to significant
limitation under sections 382 and 383 of the IRC if an “ownership change” occurs. The purpose
of the relief requested herein is to minimize the risk that an “ownership change” occurs before the
conclusion of these chapter 11 cases. In doing so, the Debtors intend to maximize the value of
4
Under certain circumstances, certain NOLs generated may be “carried back” to offset taxable income in prior
years. Generally, the specific rules regarding carrybacks and carryforwards depend on when a particular NOL
was generated.
4
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their estates by limiting tax liabilities generated during or as a result of the actions taken during
the cases.
9. The Debtors currently estimate that, as of September 30, 2023, they had
approximately $405 million of U.S. federal NOLs and approximately $127 million of 163(j)
Carryforwards. The Debtors expect to generate significant additional tax attributes in the current
tax year, including during the pendency of these chapter 11 cases (together with the
aforementioned NOLs, 163(j) Carryforwards, and certain other tax attributes, collectively,
the “Tax Attributes”). The Tax Attributes are potentially of significant value to the Debtors and
their estates because the Tax Attributes may offset U.S. federal taxable income or U.S. federal tax
liability in future years, including any taxable income generated by transactions consummated
during these chapter 11 cases (including with respect to any taxable disposition of some or all of
the Debtors’ assets). Accordingly, the value of the Tax Attributes will inure to the benefit of all
of the Debtors’ stakeholders.
10. The relief requested herein is expected to preserve the value of the Tax Attributes
to the benefit of the Debtors’ stakeholders. Conversely, a premature limitation of the Debtors’ Tax
Attributes could cause substantial deterioration of value and significantly reduce recoveries to the
Debtors’ stakeholders. Failure to obtain the relief sought in this Motion could, therefore, greatly
increase the risk that the Debtors would be unable to maximize the value of their estates.
I. An “Ownership Change” May Negatively Affect the Debtors’ Utilization of the
Tax Attributes.
11. Sections 382 and 383 of the IRC limit the amount of federal taxable income and
federal tax liability, respectively, that can be offset by a corporation’s tax attributes in taxable years
(or portions thereof) following an “ownership change.” Generally, an “ownership change” occurs
if the percentage (by value) of the stock of a corporation owned by one or more “5 percent”
5
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shareholders has increased by more than 50 percentage points over the lowest percentage of stock
owned by such shareholders at any time during the 3-year testing period ending on the date of the
ownership change. The total percentage point increases of stock owned by one or more “5 percent”
shareholders within the measuring period is generally referred to as the amount of the “ownership
shift.” In situations involving multiple classes of stock with different rights, the determination of
whether a shareholder is a “5 percent” shareholder is made by reference to stock value (without
regard to certain considerations such as control premiums or minority discounts, and with
reference to certain mechanical tests). For example, an ownership change would occur in the
following situation:
An individual (“A”) owns 50.1 percent of the stock of corporation
XYZ. A sells her 50.1 percent interest to another individual (“B”),
who owns 5 percent of XYZ’s stock. Under section 382 of the IRC,
an ownership change has occurred because B’s interest in XYZ has
increased more than 50 percentage points (from 5 percent to
55.1 percent) during the testing period. The same result would
follow even if B owned no XYZ stock prior to the transaction with
A because B both becomes a 5 percent shareholder and increases his
ownership by more than 50 percentage points during the
testing period.
12. It is critical to understand that, under these rules, a company can be harmed as a
result of actions by parties that are unknown to the company. As noted above, if a person unknown
to the company were to acquire more than 5 percent of the company’s stock (determined in
accordance with the rules set forth above), the company would experience an “ownership shift”
(or an increase in the magnitude of an “ownership shift”) that could lead to an ownership change.
By the time the company knew who the unidentified shareholder was, the shareholder would have
already purchased the shares and the harm would be done. Accordingly, for the Procedures to be
effective, the Procedures must bind unknown parties.
6
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13. The Debtors respectfully submit that all parties potentially subject to the procedural
relief requested herein are receiving publication notice of the relief. As one particularly salient
example, companies in certain instances may enact charter restrictions to protect their tax
attributes. Such charter restrictions may impose substantive limitations on sales and purchases of
equity that are similar to the procedural limitations requested in this Motion. Although such charter
restrictions are put to a shareholder vote before being enacted, they always bind unknown parties
(i.e., persons that are not shareholders at the time the vote is taken) and do so via public information
issued by the company in connection with the adoption of such charter restrictions. It is true that
the relief requested in this Motion is not being put to a shareholder vote––nor should it be, because
the requested relief is intended to maximize the value of the Debtors for all stakeholders––but
unlike charter restrictions, the relief requested in this Motion merely implements procedures that
must be observed before relevant actions are taken.
14. An “ownership change” can also occur as a result of a “worthless stock deduction”
claimed by any “50-percent shareholder.” IRC § 382(g)(4)(D). A 50-percent shareholder is any
person or entity (or group of people that is treated as a single entity under the applicable rules)
with Beneficial Ownership of 50 percent or more of a corporation’s stock “at any time during the
3-year period ending on the last day of the taxable year” with respect to which the worthless stock
deduction is claimed. Id. If the 50-percent shareholder still owns the corporation’s stock at the
end of the taxable year, sections 382 and 383 of the IRC essentially treat such person or entity as
newly purchasing the stock on the first day of the next taxable year. For example, if a person or
entity with 50 percent of a corporation’s stock claims a worthless stock deduction with respect to
the 2024 tax year but does not sell such stock in 2024, that person is treated: (a) as not having
owned the stock at the end of 2024; and (b) as having purchased the stock on the first day of the
7
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2025 tax year. That deemed purchase would cause an ownership change because the 50-percent
shareholder would be deemed to have a 50-percentage-point increase in its stock ownership.
Notably, while the seminal case of Official Comm. of Unsecured Creditors v. PSS S.S. Co.
(In re Prudential Lines Inc.), 928 F.2d 565 (2d Cir. 1991), is generally relied upon to support
equity trading motions in general, the specific issue in Prudential Lines was, in fact, a worthless
stock deduction.
15. If an ownership change occurs, section 382 of the IRC limits the amount of a
corporation’s future taxable income that may be offset by its “pre-change losses” and
section 383 of the IRC limits the amount of a corporation’s future tax liability that may be offset
by its “excess credits,” in each case, to an annual amount based on the fair market value of all of
the stock of the corporation prior to the ownership change multiplied by the long-term tax-exempt
rate that applies to the month of the ownership change.5 See IRC §§ 382(b) and 383(a).
Pre-change losses and excess credits include the Debtors’ Tax Attributes and any so-called
“realized built-in losses” (as defined in section 382(h)(3) of the IRC).6 Once a Tax Attribute is
limited under section 382 or 383 of the IRC, its use may be limited forever.7 Thus, certain transfers
of or worthless stock deductions with respect to the Beneficial Ownership of Common Stock
effected before the effective date of the Debtors’ emergence from chapter 11 protection may
5
The applicable long-term tax-exempt rate changes from month to month. For ownership changes occurring in
June 2024, the applicable long-term tax-exempt rate is 3.62%.
6
The rules relating to potential limitations on the ability to offset taxable income with so-called realized built-in
losses are highly complex and depend on, among other things, the extent (if any) of a debtor’s “net unrealized
built-in loss.” A net unrealized built-in loss is equal to the excess of the aggregate adjusted basis of all of a
corporation’s applicable assets over their fair market value (as determined for purposes of section 382 of the IRC)
immediately prior to the ownership change. IRC § 382(h)(3)(A)(i).
7
Realized built-in losses that are deducted beginning after the expiration of a 5-year “recognition period” are no
longer subject to limitation, but any realized built-in losses that are deducted prior to the expiration of such period
are limited forever.
8
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trigger an “ownership change” for IRC purposes, severely endangering the Debtors’ ability to
utilize the Tax Attributes, which would cause substantial damage to the Debtors’ estates.
16. Notably, the Debtors have limited the relief requested herein to the extent necessary
to preserve estate value. Specifically, the proposed Interim Order and Final Order will affect only:
(a) holders of the equivalent of more than 152,436 shares of Common Stock (i.e., 4.5 percent or
more of outstanding Common Stock);8 (b) parties who are interested in purchasing sufficient
Common Stock to result in such party becoming a holder of 4.5 percent or more of Beneficial
Ownership of any outstanding Common Stock; and (c) any “50-percent shareholder” seeking to
claim a worthless stock deduction.
17. To maximize the use of the Tax Attributes and enhance recoveries for the Debtors’
stakeholders, the Debtors seek limited relief that will enable them to closely monitor certain
transfers of Beneficial Ownership of Common Stock and certain worthless stock deductions with
respect to Beneficial Ownership of Common Stock so as to be in a position to act expeditiously to
prevent such transfers or worthlessness deductions, if necessary, with the purpose of preserving
the Tax Attributes. By establishing and implementing such Procedures, the Debtors will be in a
position to object to “ownership changes” that threaten their ability to preserve the value of their
Tax Attributes for the benefit of the estates.
II. Proposed Procedures for Transfers of or Declarations of Worthlessness with Respect
to Common Stock.
18. The Procedures are the mechanism by which the Debtors propose that they will
monitor and, if necessary, object to certain transfers of Beneficial Ownership of Common Stock
and declarations of worthlessness with respect to Beneficial Ownership of Common Stock to
8
Based on approximately 3,387,462 shares of Common Stock outstanding as of the Petition Date.
9
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ensure preservation of the Tax Attributes. The Procedures, which are fully set forth in Exhibit 1
attached to the Interim Order and Final Order, are detailed below.9
Procedures for Transfers of Common Stock
a. Any entity (as defined in section 101(15) of the Bankruptcy Code) that is a
Substantial Shareholder (as defined herein) must file with the Court, and
serve upon: (i) the Debtors, Vyaire Medical, Inc., 26125 North Riverwoods
Boulevard, Mettawa, Illinois 60045, Attn.: Charles Braley
(cbraley@alixpartners.com); (ii) proposed co-counsel to the Debtors
(a) Kirkland & Ellis LLP, 601 Lexington Avenue, New York, New York
10022, Attn.: Joshua A. Sussberg, P.C. (joshua.sussberg@kirkland.com),
Chris Ceresa (chris.ceresa@kirkland.com), and Tiffani Chanroo
(tiffani.chanroo@kirkland.com), (b) Kirkland & Ellis LLP, 333 Wolf Point
Plaza, Chicago, Illinois, 60654, Attn.: Spencer A. Winters
(spencer.winters@kirkland.com) and Yusuf U. Salloum
(yusuf.salloum@kirkland.com); and (c) 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 (d) Cole Schotz P.C., Court Plaza
North, 25 Main Street, Hackensack, New Jersey 07601, Attn.: Michael D.
Sirota, Esq. (msirota@coleschotz.com), Warren A. Usatine, Esq.
(wusatine@coleschotz.com); (iii) counsel to the 1L Ad Hoc Group, 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 (iv) Pachulski Stang Ziehl & Jones LLP, 919 North Market Street, 17th
Floor, Wilmington, DE 19801, Attn.: Laura Davis Jones
(ljones@pszjlaw.com); (iv) the United States Trustee for the District of
Delaware, Attn.: Benjamin A. Hackman
(Benjamin.A.Hackman@usdoj.gov); and (v) any statutory committee
appointed in these chapter 11 cases (collectively, the
“Notice Parties”), a declaration of such status, substantially in the form
attached to the Procedures as Exhibit 1A (each, a “Declaration of Status as a
Substantial Shareholder”), on or before the later of (A) twenty calendar days
after the date of the Notice of Interim Order, or (B) 10 calendar days after
becoming a Substantial Shareholder; provided that, for the avoidance of
doubt, the other procedures set forth herein shall apply to any Substantial
9
Capitalized terms used in this section but not otherwise defined herein have the meanings given to them in the
Procedures. To the extent that this summary and the terms of the Procedures are inconsistent, the terms of the
Procedures control.
10
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Shareholder even if no Declaration of Status as a Substantial Shareholder has
been filed.
b. Prior to effectuating any transfer of Beneficial Ownership of Common Stock
that would result in an increase in the amount of Common Stock of which a
Substantial Shareholder has Beneficial Ownership or would result in an
entity or individual becoming a Substantial Shareholder, the parties to such
transaction must file with the Court, and serve upon the Notice Parties, an
advance written declaration of the intended transfer of Common Stock,
substantially in the form attached to the Procedures as Exhibit 1B
(each, a “Declaration of Intent to Accumulate Common Stock”).
c. Prior to effectuating any transfer of Beneficial Ownership of Common Stock
that would result in a decrease in the amount of Common Stock of which a
Substantial Shareholder has Beneficial Ownership or would result in an
entity or individual ceasing to be a Substantial Shareholder, the parties to
such transaction must file with the Court, and serve upon the Notice Parties,
an advance written declaration of the intended transfer of Common Stock,
substantially in the form attached to the Procedures as Exhibit 1C (each,
a “Declaration of Intent to Transfer Common Stock,” and together with a
Declaration of Intent to Accumulate Common Stock, each, a “Declaration of
Proposed Transfer”).
d. The Debtors and the other Notice Parties shall have twenty calendar days
after receipt of a Declaration of Proposed Transfer to file with the Court and
serve on such Substantial Shareholder or potential Substantial Shareholder
an objection to any proposed transfer of Beneficial Ownership of Common
Stock, described in the Declaration of Proposed Transfer on the grounds that
such transfer might adversely affect the Debtors’ ability to utilize their Tax
Attributes. If the Debtors or any of the other Notice Parties file an objection,
such transaction will remain ineffective unless such objection is withdrawn,
or such transaction is approved by a final and non-appealable order of the
Court. If the Debtors and the other Notice Parties do not object within such
twenty-day period, such transaction can proceed solely as set forth in the
Declaration of Proposed Transfer. Further transactions within the scope of
this paragraph must be the subject of additional notices in accordance with
the procedures set forth herein, with an additional twenty-day waiting period
for each Declaration of Proposed Transfer. To the extent that the Debtors
receive an appropriate Declaration of Proposed Transfer and determine in
their business judgment not to object, they shall provide notice of that
decision to the other Notice Parties prior to the deadline to file an objection
set forth above.
e. For purposes of these Procedures (including, for the avoidance of doubt, with
respect to both transfers and declarations of worthlessness):
(i) a “Substantial Shareholder” is any entity or individual person that has
Beneficial Ownership of at least 152,436 shares of Common Stock;
11
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(representing approximately 4.5 percent of all issued and outstanding shares
of Common Stock); and (ii) “Beneficial Ownership” will be determined in
accordance with the applicable rules of section 382 of the IRC, and the
Treasury Regulations promulgated thereunder (other than Treasury
Regulations section 1.382-2T(h)(2)(i)(A)) and includes direct, indirect, and
constructive ownership (e.g., (1) a holding company would be considered to
beneficially own all equity securities owned by its subsidiaries, (2) a partner
in a partnership would be considered to beneficially own its proportionate
share of any equity securities owned by such partnership, (3) an individual
and such individual’s family members may be treated as one individual,
(4) persons and entities acting in concert to make a coordinated acquisition
of equity securities may be treated as a single entity, and (5) a holder would
be considered to beneficially own equity securities that such holder has an
Option (as defined herein) to acquire). An “Option” to acquire stock
includes all interests described in Treasury Regulations
section 1.382-4(d)(9), including any contingent purchase right, warrant,
convertible debt, put, call, stock subject to risk of forfeiture, contract to
acquire stock, or similar interest, regardless of whether it is contingent or
otherwise not currently exercisable.
Procedures for Declarations of Worthlessness of Common Stock
a. Any person or entity that currently is or becomes a 50-Percent Shareholder10
must file with the Court and serve upon the Notice Parties a declaration of
such status, substantially in the form attached to the Procedures as
Exhibit 1D (each, a “Declaration of Status as a 50-Percent Shareholder”), on
or before the later of (i) twenty calendar days after the date of the Notice of
Interim Order and (ii) 10 calendar days after becoming a 50-Percent
Shareholder; provided that, for the avoidance of doubt, the other procedures
set forth herein shall apply to any 50-Percent Shareholder even if no
Declaration of Status as a 50-Percent Shareholder has been filed.
b. Prior to filing any federal or state tax return, or any amendment to such a
return, or taking any other action that claims any deduction for worthlessness
of Beneficial Ownership of Common Stock for a taxable year ending before
the Debtors’ emergence from chapter 11 protection, such 50-Percent
Shareholder must file with the Court and serve upon the Notice Parties a
declaration of intent to claim a worthless stock deduction (a “Declaration of
Intent to Claim a Worthless Stock Deduction”), substantially in the form
attached to the Procedures as Exhibit 1E.
i. The Debtors and the other Notice Parties shall have twenty calendar
days after receipt of a Declaration of Intent to Claim a Worthless
10
For purposes of the Procedures, a “50-Percent Shareholder” is any person or entity that, at any time since
December 31, 2020, has owned Beneficial Ownership of 50% or more of the Common Stock (determined in
accordance with section 382(g)(4)(D) of the IRC and the applicable Treasury Regulations thereunder).
12
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Stock Deduction to file with the Court and serve on such 50-Percent
Shareholder an objection to any proposed claim of worthlessness
described in the Declaration of Intent to Claim a Worthless Stock
Deduction on the grounds that such claim might adversely affect the
Debtors’ ability to utilize their Tax Attributes.
ii. If the Debtors or the other Notice Parties timely object, the filing of
the tax return or amendment thereto with such claim will not be
permitted unless approved by a final and non-appealable order of
the Court, unless such objection is withdrawn.
iii. If the Debtors and the other Notice Parties do not object within such
twenty-day period, the filing of the return or amendment with such
claim will be permitted solely as described in the Declaration of
Intent to Claim a Worthless Stock Deduction. Additional returns
and amendments within the scope of this section must be the subject
of additional notices as set forth herein, with an additional
twenty-day waiting period. To the extent that the Debtors receive
an appropriate Declaration of Intent to Claim a Worthless Stock
Deduction and determine in their business judgment not to object,
they shall provide notice of that decision to the other Notice Parties
prior to the deadline to file an objection set forth above in
subparagraph (b)(i).
Notice Procedures
a. No later than 5 business days following entry of the Interim Order, the
Debtors shall serve a notice by first class mail and email, if available,
substantially in the form attached to the Procedures as Exhibit 1F
(the “Notice of Interim Order”), on: (i) the U.S. Trustee; (ii) Gibson, Dunn
& Crutcher LLP, as counsel to the 1L Ad Hoc Group; (iii) the entities listed
on the consolidated list of creditors holding the thirty (30) largest unsecured
claims; (iv) the U.S. Securities and Exchange Commission; (v) the Internal
Revenue Service; (vi) the United States Attorney’s Office for the District of
Delaware; (vii) the state attorneys general for states in which the Debtors
conduct business; (viii) the registered and nominee holders of the Common
Stock (with instructions to serve down to the beneficial holders of Common
Stock, as applicable); and (ix) the Notice Parties. Additionally, no later than
5 business days following entry of the Final Order, the Debtors shall serve a
Notice of Interim Order modified to reflect that the Final Order has been
entered (as modified, the “Notice of Final Order”) on the same entities that
received the Notice of Interim Order.
b. All registered and nominee holders of Common Stock shall be required to
serve the Notice of Interim Order or Notice of Final Order, as applicable, on
any holder for whose benefit such registered or nominee holder holds such
13
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 14 of 97
Common Stock, down the chain of ownership for all such holders of
Common Stock.
c. Any entity or individual, or broker or agent acting on such entity’s or
individual’s behalf who sells Common Stock to another entity or individual,
shall be required to serve a copy of the Notice of Interim Order or Notice of
Final Order, as applicable, on such purchaser of such Common Stock, or any
broker or agent acting on such purchaser’s behalf.
d. To the extent confidential information is required in any declaration
described in the Procedures, such confidential information may be filed with
the Court in redacted form; provided, however, that any such declarations
served on the Notice Parties shall not be in redacted form. The Notice
Parties shall keep all information provided in such declarations strictly
confidential and shall not disclose the contents thereof to any person except:
(i) to the extent necessary to respond to a petition or objection filed with the
Court; (ii) to the extent otherwise required by law; or (iii) to the extent that
the information contained therein is already public; provided, further,
however, that the Debtors may disclose the contents thereof to their
professional advisors, who shall keep all such notices strictly confidential
and shall not disclose the contents thereof to any other person, subject to
further Court order. To the extent confidential information is necessary to
respond to an objection filed with the Court, such confidential information
shall be filed under seal or in a redacted form.
Basis for Relief
19. Section 541 of the Bankruptcy Code provides that property of the estate comprises,
among other things, “all legal or equitable interests of the debtor in property as of the
commencement of the case.” 11 U.S.C. § 541. The Tax Attributes are property of the Debtors’
estates. See Official Comm. of Unsecured Creditors v. PSS S.S. Co. (In re Prudential Lines Inc.),
928 F.2d 565, 573 (2d Cir. 1991) (“We hold that the right to a carryforward attributable to
its . . . NOL was property of [the debtor’s] bankruptcy estate.”). Section 362(a)(3) of the
Bankruptcy Code, stays “any act [of an entity] to obtain possession of property of the estate or of
property from the estate or to exercise control over property of the estate.” 11 U.S.C. § 362(a)(3).
Any act of a holder of a debtor’s equity securities that causes the termination, or limits use, of the
Tax Attributes violates the automatic stay. See, e.g., In re Prudential Lines, 928 F.2d at 574
14
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(holding that causing the termination of or adversely affecting the value of a debtor’s NOL violates
the automatic stay).
20. Implementation of the Procedures is necessary and appropriate to enforce the
automatic stay and, critically, to preserve the value of the Tax Attributes for the benefit of the
Debtors’ estates. Under sections 382 and 383 of the IRC, certain transfers of or declarations of
worthlessness with respect to Beneficial Ownership of Common Stock prior to the consummation
of a chapter 11 plan (the “Plan”) could cause the termination or limit the use of the Tax Attributes.
As stated above, the Debtors estimate that as of September 30, 2023, the Debtors had
approximately $405 million of U.S. federal NOLs, approximately $127 million of 163(j)
Carryforwards, and certain other tax attributes, and, in addition, the Debtors expect to generate
significant additional Tax Attributes in the current tax year, including during the pendency of these
chapter 11 cases. As noted above, these Tax Attributes may be necessary to address tax
consequences resulting from the implementation of the Plan and, depending upon the structure
utilized to consummate the Plan, they may provide the potential for material future tax savings
(including in post-emergence years). The termination or limitation of the Tax Attributes could,
therefore, be materially detrimental to all parties in interest, including by potentially limiting the
Debtors’ ability to utilize certain structures to consummate the Plan. Granting the relief requested
herein will preserve the Debtors’ flexibility in operating their businesses during the pendency of
these chapter 11 cases and implementing an exit plan that makes full and efficient use of the Tax
Attributes and maximizes the value of the Debtors’ estates.
21. Additionally, the Procedures do not bar all transfers of or declarations of
worthlessness with respect to Beneficial Ownership of Common Stock. The Debtors seek to
establish procedures only to monitor those types of transactions that would pose a serious risk
15
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 16 of 97
under the ownership change test pursuant to sections 382 and 383 of the IRC and to preserve the
Debtors’ ability to seek substantive relief if it appears that a proposed transfer or declaration of
worthlessness could jeopardize the Debtors’ utilization of the Tax Attributes. Because of the Tax
Attributes’ importance to the Debtors’ chapter 11 cases, and thus all parties in interest, the benefits
of implementing the Procedures outweigh the drawbacks of subjecting a small subset of transfers
to the Procedures.
22. Courts in this district routinely approve relief similar to that requested herein.
See, e.g., In re Appgate, Inc., No. 24 10956 (CTG) (Bankr. D. Del. May 28, 2024) (approving
certain notification and hearing procedures with respect to certain transfers of equity interests on
a final basis); In re Express, Inc., No. 24-10831 (KBO) (Bankr. D. Del. Apr. 22, 2024) (same);
In re Sientra, Inc., No. 24-10245 (JTD) (Bankr. D. Del. Apr. 9, 2024) (same); In re Yellow Corp.,
No. 23-11069 (CTG) (Bankr. D. Del. Sep. 13, 2023); In re PGX Holdings, Inc., No. 23-10718
(CTG) (Bankr. D. Del. July 19, 2023) (same).
The Requirements of Bankruptcy Rule 6003(b) Are Satisfied
23. Bankruptcy Rule 6003 empowers a court to grant certain relief within the first
twenty-one days after the petition date only “to the extent that relief is necessary to avoid
immediate and irreparable harm.” For the reasons discussed above, the Debtors believe an
immediate and orderly transition into chapter 11 is critical, and the failure to receive the requested
relief during the first twenty-one days of these chapter 11 cases could impact the Debtors’
operations at this important juncture. The requested relief is necessary for the Debtors to operate
their businesses in the ordinary course, preserve the ongoing value of their operations, and
maximize value of their estates for the benefit of all stakeholders. The Debtors have demonstrated
16
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 17 of 97
that the requested relief is “necessary to avoid immediate and irreparable harm,” as contemplated
by Bankruptcy Rule 6003, and the Court should grant the requested relief.
Reservation of Rights
24. Nothing contained in this motion or any order granting the relief requested in this
motion, and no action taken by the Debtors pursuant to the relief requested or granted (including
any payment made in accordance with any such order), is intended as or shall be construed or
deemed to be: (a) an admission as to the amount of, basis for, priority or validity of any claim
against the Debtors under the Bankruptcy Code or other applicable nonbankruptcy law;
(b) a waiver of the Debtors’ or any other party in interest’s rights to dispute any claim on any
grounds; (c) a promise or requirement to pay any particular claim; (d) an implication, admission
or finding that any particular claim is an administrative expense claim, other priority claim or
otherwise of a type specified or defined in this motion or any order granting the relief requested
by this motion; (e) a request or authorization to assume, adopt or reject any agreement, contract,
or lease pursuant to section 365 of the Bankruptcy Code; (f) an admission as to the validity, priority
enforceability or perfection of any lien on, security interest in or other encumbrance on property
of the Debtors’ estates; or (g) a waiver or limitation of any claims, causes of action or other rights
of the Debtors or any other party in interest against any person or entity under the Bankruptcy
Code or any other applicable law.
Waiver of Bankruptcy Rule 6004(a) and 6004(h)
25. To implement the foregoing successfully, the Debtors seek a waiver of the notice
requirements under Bankruptcy Rule 6004(a) and the fourteen-day stay of an order authorizing the
use, sale, or lease of property under Bankruptcy Rule 6004(h).
26. To the extent that any aspect of the relief sought herein constitutes a use of property
under section 363(b) of the Bankruptcy Code, the Debtors seek a waiver of the notice requirements
17
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 18 of 97
under Bankruptcy Rule 6004(a) and the fourteen-day stay of an order authorizing the use, sale, or
lease of property under Bankruptcy Rule 6004(h).
Notice
27. 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) to the extent known, the registered and nominee holders of the Common Stock (with instructions
to serve down to the beneficial holders of Common Stock as applicable); and (m) any party that
has requested notice pursuant to Bankruptcy Rule 2002. As this motion is seeking “first day”
relief, the Debtors will serve copies of this motion and any order entered in respect to this motion
as required by Local Rule 9013-1(m). The Debtors submit that, in light of the nature of the relief
requested, no other or further notice need be given.
[Remainder of page intentionally left blank]
18
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 19 of 97
WHEREFORE, the Debtors request entry of Interim Order and Final Order, substantially
in the forms attached hereto as Exhibit A and Exhibit B, (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. Reilly
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 14 Filed 06/10/24 Page 20 of 97
Exhibit A
Proposed Interim Order
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 21 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. ) (Joint Administration Requested)
) Re: Docket No. __
INTERIM ORDER (I) APPROVING NOTIFICATION AND
HEARING PROCEDURES FOR CERTAIN TRANSFERS OF
AND DECLARATIONS OF WORTHLESSNESS WITH RESPECT
TO COMMON STOCK AND (II) GRANTING RELATED RELIEF
Upon the motion (the “Motion”)2 of the above-captioned debtors and debtors in possession
(collectively, the “Debtors”) for the entry of an interim order (this “Interim Order”), (a) authorizing
the Debtors to approve certain notification and hearing procedures, substantially in the form of
Exhibit 1 attached hereto (the “Procedures”), related to certain transfers of, or declarations of
worthlessness with respect to Debtor Vyaire Holding Company’s existing classes of common stock
or any Beneficial Ownership3 therein (any such record or Beneficial Ownership of common stock,
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 otherwise defined herein have the meanings ascribed to them in the Motion.
3
“Beneficial Ownership” will be determined in accordance with the applicable rules of sections 382 and 383 of the
Internal Revenue Code of 1986, 26 U.S.C. §§ 1–9834 as amended (the “IRC”), and the U.S. Department of the
Treasury regulations thereunder (“Treasury Regulations”) (other than Treasury Regulations
section 1.382-2T(h)(2)(i)(A)), and includes direct, indirect, and constructive ownership (e.g., (1) a holding
company would be considered to beneficially own all equity securities owned by its subsidiaries, (2) a partner in
a partnership would be considered to beneficially own its proportionate share of any equity securities owned by
such partnership, (3) an individual and such individual’s family members may be treated as one individual,
(4) persons and entities acting in concert to make a coordinated acquisition of equity securities may be treated as
a single entity, and (5) a holder would be considered to beneficially own equity securities that such holder has an
Option (as defined herein) to acquire). An “Option” to acquire stock includes all interests described in Treasury
Regulations section 1.382-4(d)(9), including any contingent purchase right, warrant, convertible debt, put, call,
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 22 of 97
(collectively, the “Common Stock”)), (b) directing that any purchase, sale, other transfer of, or
declaration of worthlessness with respect to Common Stock in violation of the Procedures shall be
null and void ab initio, (c) scheduling a final hearing to consider approval of the Motion on a final
basis, and (d) granting related relief, all as more fully set forth in the Motion; and upon the First
Day Declaration; and 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 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; and this Court having found that this
is a core proceeding pursuant to 28 U.S.C. § 157(b)(2); and this Court having found that venue of
this proceeding and the Motion in this district is proper pursuant to 28 U.S.C. §§ 1408 and 1409;
and this Court having found that the relief requested in the Motion is in the best interests of the
Debtors’ estates, their creditors, and other parties in interest; and this Court having found that the
Debtors’ notice of the Motion and opportunity for a hearing on the Motion were appropriate under
the circumstances and no other notice need be provided; and this Court having reviewed the
Motion and having heard the statements in support of the relief requested therein at a hearing
before this Court (the “Hearing”); and this Court having determined that the legal and factual bases
set forth in the Motion and at the Hearing establish just cause for the relief granted herein; and
upon all of the proceedings had before this Court; and after due deliberation and sufficient cause
appearing therefor, it is HEREBY ORDERED THAT:
1. The Motion is granted on an interim basis as set forth herein.
stock subject to risk of forfeiture, contract to acquire stock, or similar interest, regardless of whether it is
contingent or otherwise not currently exercisable.
2
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 23 of 97
2. The final hearing (the “Final Hearing”) on the Motion shall be held on _________,
2024, at__:__ _.m., prevailing Eastern Time. Any objections or responses to entry of a final order
on the Motion shall be filed on or before 4:00 p.m., prevailing Eastern Time, on _________, 2024
and shall be served on: (a) the Debtors, 26125 North Riverwoods Boulevard, Mettawa, Illinois,
USA 60045, Attn.: Charles Braley (cbraley@alixpartners.com); (b) proposed co-counsel to the
Debtors (i) Kirkland & Ellis LLP, 601 Lexington Avenue, New York, New York 10022, Attn.:
Joshua A. Sussberg, P.C. (joshua.sussberg@kirkland.com), Chris Ceresa
(chris.ceresa@kirkland.com), and Tiffani Chanroo (tiffani.chanroo@kirkland.com), (ii) Kirkland
& Ellis LLP, 333 West Wolf Point Plaza, Chicago, Illinois, 60654, Attn.: Spencer A. Winters
(spencer.winters@kirkland.com) and Yusuf U. Salloum (yusuf.salloum@kirkland.com),
(iii) 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 (iv) Cole Schotz P.C., Court Plaza
North, 25 Main Street, Hackensack, New Jersey 07601, Attn.: Michael D. Sirota, Esq.
(msirota@coleschotz.com) and Warren A. Usatine, Esq. (wusatine@coleschotz.com);
(c) 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);
(d) the United States Trustee, 844 King Street, Suite 2207, Lockbox 35, Wilmington, Delaware
3
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 24 of 97
19801, Attn.: Benjamin A. Hackman (Benjamin.A.Hackman@usdoj.gov); and (e) any statutory
committee appointed in these chapter 11 cases.
3. The Procedures, as set forth in Exhibit 1 attached hereto, are hereby approved on
an interim basis; provided, however, that any party in interest may file a motion and seek
emergency relief from the Procedures based upon a showing of sufficient cause; provided, further,
that the Debtors’ and the other Notice Parties’ rights to oppose such relief are fully reserved and
preserved.
4. Any postpetition transfer of or postpetition declaration of worthlessness with
respect to Beneficial Ownership of Common Stock in violation of the Procedures, including but
not limited to the notice requirements, shall be null and void ab initio.
5. In the case of any such postpetition transfer of Beneficial Ownership of Common
Stock in violation of the Procedures, including but not limited to the notice requirements, the
person or entity making such transfer shall be required to take remedial actions specified by the
Debtors, which may include the actions specified in Private Letter Ruling 201010009
(Dec. 4, 2009), to appropriately reflect that such transfer is null and void ab initio.
6. In the case of any such postpetition declaration of worthlessness with respect to
Beneficial Ownership of Common Stock in violation of the Procedures, including the notice
requirements, the person or entity making such declaration shall be required to file an amended
tax return revoking such declaration and any related deduction to appropriately reflect that such
declaration is void ab initio.
7. Nothing in the Motion or this Interim Order waives or modifies the requirements
of the Restructuring Support Agreement, including, without limitation, the consent and
consultation rights contained therein.
4
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 25 of 97
8. 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
postpetition financing facilities or credit agreement, 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 Order and any
action taken or proposed to be taken hereunder, the terms of the DIP Order shall control.
9. The Debtors may retroactively or prospectively, in writing, waive any and all
restrictions, stays and notification procedures set forth in the Procedures.
10. Within 3 days of entry of this Interim Order, the Debtors shall send the Notice of
Interim Order attached hereto as Exhibit 1F, by first class mail and email, if available, to all
registered holders, who in turn shall serve the notice down the chain of ownership to the beneficial
holders, and to all parties that were served with notice of the Motion, submit a copy of the Notice
of Interim Order (modified for publication) to The New York Times, and post this Interim Order
and the Procedures to the website established by the Debtors’ claims and noticing agent for these
chapter 11 cases, https://omniagentsolutions.com/Vyaire, such notice being reasonably calculated
to provide notice to all parties that may be affected by the Procedures, whether known or unknown.
11. To the extent that this Interim Order is inconsistent with any prior order or pleading
with respect to the Motion in these chapter 11 cases, the terms of this Interim Order shall govern.
12. The requirements set forth in this Interim Order are in addition to the requirements
of Bankruptcy Rule 3001(e) and applicable securities, corporate, and other laws and do not excuse
compliance therewith.
5
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 26 of 97
13. Nothing contained in the Motion or this Interim Order, and no action taken pursuant
to the relief requested or granted (including any payment made in accordance with this Interim
Order), is intended as or shall be construed or deemed to be: (a) an admission as to the amount,
validity or priority of, or basis for any claim against the Debtors under the Bankruptcy Code or
other applicable nonbankruptcy law; (b) a waiver of the Debtors’ or any other party in interest’s
right to dispute any claim on any grounds; (c) a promise or requirement to pay any particular claim;
(d) an implication, admission or finding that any particular claim is an administrative expense
claim, other priority claim or otherwise of a type specified or defined in the Motion or this Interim
Order; (e) a request or authorization to assume, adopt, or reject any agreement, contract, or lease
pursuant to section 365 of the Bankruptcy Code; (f) an admission as to the validity, priority,
enforceability or perfection of any lien on, security interest in, or other encumbrance on property
of the Debtors’ estates; or (g) a waiver or limitation of any claims, causes of action or other rights
of the Debtors or any other party in interest against any person or entity under the Bankruptcy
Code or any other applicable law.
14. Other than to the extent that this Interim Order expressly conditions or restricts
trading in Common Stock, nothing in this Interim Order or in the Motion shall, or shall be deemed
to, prejudice, impair, or otherwise alter or affect the rights of any holders of Common Stock, as
applicable, including in connection with the treatment of any such stock under any chapter 11 plan
or any applicable bankruptcy court order.
15. The Debtors have demonstrated that the requested relief is “necessary to avoid
immediate and irreparable harm,” as contemplated by Bankruptcy Rule 6003.
16. The contents of the Motion satisfy the requirements of Bankruptcy Rule 6003(b).
6
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 27 of 97
17. 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 the Local Rules are satisfied
by such notice.
18. The Debtors are authorized to take all actions necessary to effectuate the relief
granted in this Interim Order in accordance with the Motion.
19. This Court retains jurisdiction with respect to all matters arising from or related to
the implementation, interpretation, and enforcement of this Interim Order.
7
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 28 of 97
Exhibit 1
Procedures for Transfers of and Declarations of Worthlessness
with Respect to Beneficial Ownership of Common Stock
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 29 of 97
PROCEDURES FOR TRANSFERS OF AND DECLARATIONS
OF WORTHLESSNESS WITH RESPECT TO COMMON STOCK
The following procedures apply to transfers of Common Stock:1
a. Any entity (as defined in section 101(15) of the Bankruptcy Code) that is a
Substantial Shareholder (as defined herein) must file with the Court, and
serve upon: (i) the Debtors, Vyaire Medical, Inc., 26125 North Riverwoods
Boulevard, Mettawa, Illinois 60045, Attn.: Charles Braley
(cbraley@alixpartners.com); (ii) proposed co-counsel to the Debtors
(a) Kirkland & Ellis LLP, 601 Lexington Avenue, New York, New York
10022, Attn.: Joshua A. Sussberg, P.C. (joshua.sussberg@kirkland.com),
Chris Ceresa (chris.ceresa@kirkland.com), and Tiffani Chanroo
(tiffani.chanroo@kirkland.com), (b) Kirkland & Ellis LLP, 333 Wolf Point
Plaza, Chicago, Illinois, 60654, Attn.: Spencer A. Winters
(spencer.winters@kirkland.com) and Yusuf U. Salloum
(yusuf.salloum@kirkland.com); and (c) 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 (d) Cole Schotz P.C., Court Plaza
North, 25 Main Street, Hackensack, New Jersey 07601, Attn.: Michael D.
Sirota, Esq. (msirota@coleschotz.com), Warren A. Usatine, Esq.
(wusatine@coleschotz.com); (iii) counsel to the 1L Ad Hoc Group, 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 (iv) Pachulski Stang Ziehl & Jones LLP, 919 North Market Street, 17th
Floor, Wilmington, DE 19801, Attn.: Laura Davis Jones
(ljones@pszjlaw.com); (v) the United States Trustee for the District of
Delaware, Attn.: Benjamin A. Hackman
(Benjamin.A.Hackman@usdoj.gov); and (v) any statutory committee
appointed in these chapter 11 cases (collectively, the
“Notice Parties”), a declaration of such status, substantially in the form
attached hereto as Exhibit 1A (each, a “Declaration of Status as a
Substantial Shareholder”), on or before the later of (A) twenty calendar days
after the date of the Notice of Interim Order, or (B) 10 calendar days after
becoming a Substantial Shareholder; provided that, for the avoidance of
doubt, the other procedures set forth herein shall apply to any Substantial
Shareholder even if no Declaration of Status as a Substantial Shareholder has
been filed.
1
Capitalized terms used but not otherwise defined herein have the meanings given to them in the Motion.
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 30 of 97
b. Prior to effectuating any transfer of Beneficial Ownership of Common Stock
that would result in an increase in the amount of Common Stock of which a
Substantial Shareholder has Beneficial Ownership or would result in an
entity or individual becoming a Substantial Shareholder, the parties to such
transaction must file with the Court, and serve upon the Notice Parties, an
advance written declaration of the intended transfer of Common Stock,
substantially in the form attached hereto as Exhibit 1B (each, a “Declaration
of Intent to Accumulate Common Stock”).
c. Prior to effectuating any transfer of Beneficial Ownership of Common Stock
that would result in a decrease in the amount of Common Stock of which a
Substantial Shareholder has Beneficial Ownership or would result in an
entity or individual ceasing to be a Substantial Shareholder, the parties to
such transaction must file with the Court, and serve upon the Notice Parties,
an advance written declaration of the intended transfer of Common Stock,
substantially in the form attached hereto as Exhibit 1C (each, a “Declaration
of Intent to Transfer Common Stock,” and together with a Declaration of
Intent to Accumulate Common Stock, each, a “Declaration of Proposed
Transfer”).
d. The Debtors and the other Notice Parties shall have ten calendar days after
receipt of a Declaration of Proposed Transfer to file with the Court and serve
on such Substantial Shareholder or potential Substantial Shareholder an
objection to any proposed transfer of Beneficial Ownership of Common
Stock, described in the Declaration of Proposed Transfer on the grounds that
such transfer is reasonably expected to adversely affect the Debtors’ ability
to utilize their Tax Attributes. If the Debtors or any of the other Notice
Parties file an objection, such transaction will remain ineffective unless such
objection is withdrawn, or such transaction is approved by a final and
non-appealable order of the Court. If the Debtors and the other Notice
Parties do not object within such ten-day period, such transaction can
proceed solely as set forth in the Declaration of Proposed Transfer. Further
transactions within the scope of this paragraph must be the subject of
additional notices in accordance with the procedures set forth herein, with an
additional ten-day waiting period for each Declaration of Proposed Transfer.
To the extent that the Debtors receive an appropriate Declaration of Proposed
Transfer and determine in their business judgment not to object, they shall
provide notice of that decision as soon as is reasonably practicable to the
Notice Parties.
e. For purposes of these Procedures (including, for the avoidance of doubt, with
respect to both transfers and declarations of worthlessness):
(i) a “Substantial Shareholder” is any entity or individual person that has
Beneficial Ownership of at least 152,436 shares of Common Stock;
(representing approximately 4.5 percent of all issued and outstanding shares
of Common Stock); and (ii) “Beneficial Ownership” will be determined in
accordance with the applicable rules of section 382 of the IRC, and the
2
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 31 of 97
Treasury Regulations promulgated thereunder (other than Treasury
Regulations section 1.382-2T(h)(2)(i)(A)) and includes direct, indirect, and
constructive ownership (e.g., (1) a holding company would be considered to
beneficially own all equity securities owned by its subsidiaries, (2) a partner
in a partnership would be considered to beneficially own its proportionate
share of any equity securities owned by such partnership, (3) an individual
and such individual’s family members may be treated as one individual,
(4) persons and entities acting in concert to make a coordinated acquisition
of equity securities may be treated as a single entity, and (5) a holder would
be considered to beneficially own equity securities that such holder has an
Option (as defined herein) to acquire). An “Option” to acquire stock
includes all interests described in Treasury Regulations
section 1.382-4(d)(9), including any contingent purchase right, warrant,
convertible debt, put, call, stock subject to risk of forfeiture, contract to
acquire stock, or similar interest, regardless of whether it is contingent or
otherwise not currently exercisable.
The following procedures apply for declarations of worthlessness of Common Stock:
a. Any person or entity that currently is or becomes a 50-Percent Shareholder2
must file with the Court and serve upon the Notice Parties a declaration of
such status, substantially in the form attached hereto as Exhibit 1D (each,
a “Declaration of Status as a 50-Percent Shareholder”), on or before the later
of (i) twenty calendar days after the date of the Notice of Interim Order and
(ii) 10 calendar days after becoming a 50-Percent Shareholder; provided
that, for the avoidance of doubt, the other procedures set forth herein shall
apply to any 50-Percent Shareholder even if no Declaration of Status as a
50-Percent Shareholder has been filed.
b. Prior to filing any federal or state tax return, or any amendment to such a
return, or taking any other action that claims any deduction for worthlessness
of Beneficial Ownership of Common Stock for a taxable year ending before
the Debtors’ emergence from chapter 11 protection, such 50-Percent
Shareholder must file with the Court and serve upon the Notice Parties a
declaration of intent to claim a worthless stock deduction (a “Declaration of
Intent to Claim a Worthless Stock Deduction”), substantially in the form
attached hereto as Exhibit 1E.
i. The Debtors and the other Notice Parties shall have ten calendar
days after receipt of a Declaration of Intent to Claim a Worthless
Stock Deduction to file with the Court and serve on such 50-Percent
Shareholder an objection to any proposed claim of worthlessness
described in the Declaration of Intent to Claim a Worthless Stock
2
For purposes of the Procedures, a “50-Percent Shareholder” is any person or entity that, at any time since
December 31, 2020, has owned Beneficial Ownership of 50% or more of the Common Stock (determined in
accordance with section 382(g)(4)(D) of the IRC and the applicable Treasury Regulations thereunder).
3
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 32 of 97
Deduction on the grounds that such claim might adversely affect the
Debtors’ ability to utilize their Tax Attributes.
ii. If the Debtors or the other Notice Parties timely object, the filing of
the tax return or amendment thereto with such claim will not be
permitted unless approved by a final and non-appealable order of
the Court, unless such objection is withdrawn.
iii. If the Debtors and the other Notice Parties do not object within such
ten-day period, the filing of the return or amendment with such
claim will be permitted solely as described in the Declaration of
Intent to Claim a Worthless Stock Deduction. Additional returns
and amendments within the scope of this section must be the subject
of additional notices as set forth herein, with an additional ten-day
waiting period. To the extent that the Debtors receive an appropriate
Declaration of Intent to Claim a Worthless Stock Deduction and
determine in their business judgment not to object, they shall
provide notice of that decision as soon as is reasonably practicable
to the Notice Parties.
NOTICE PROCEDURES
The following notice procedures apply to these Procedures:
a. No later than 5 business days following entry of the Interim Order, the
Debtors shall serve a notice by first class mail and email, if available,
substantially in the form attached to the Procedures as Exhibit 1F
(the “Notice of Interim Order”), on: (i) the U.S. Trustee; (ii) Gibson, Dunn
& Crutcher LLP, as counsel to the 1L Ad Hoc Group; (iii) the entities listed
on the consolidated list of creditors holding the thirty (30) largest unsecured
claims; (iv) the U.S. Securities and Exchange Commission; (v) the Internal
Revenue Service; (vi) the United States Attorney’s Office for the District of
Delaware; (vii) the state attorneys general for states in which the Debtors
conduct business; (viii) the registered and nominee holders of the Common
Stock (with instructions to serve down to the beneficial holders of Common
Stock, as applicable); and (ix) the Notice Parties. Additionally, no later than
5 business days following entry of the Final Order, the Debtors shall serve a
Notice of Interim Order modified to reflect that the Final Order has been
entered (as modified, the “Notice of Final Order”) on the same entities that
received the Notice of Interim Order.
b. All registered and nominee holders of Common Stock shall be required to
serve the Notice of Interim Order or Notice of Final Order, as applicable, on
any holder for whose benefit such registered or nominee holder holds such
Common Stock, down the chain of ownership for all such holders of
Common Stock.
4
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 33 of 97
c. Any entity or individual, or broker or agent acting on such entity’s or
individual’s behalf who sells Common Stock to another entity or individual,
shall be required to serve a copy of the Notice of Interim Order or Notice of
Final Order, as applicable, on such purchaser of such Common Stock, or any
broker or agent acting on such purchaser’s behalf.
d. To the extent confidential information is required in any declaration
described in the Procedures, such confidential information may be filed with
the Court in redacted form; provided, however, that any such declarations
served on the Notice Parties shall not be in redacted form. The Notice
Parties shall keep all information provided in such declarations strictly
confidential and shall not disclose the contents thereof to any person except:
(i) to the extent necessary to respond to a petition or objection filed with the
Court; (ii) to the extent otherwise required by law; or (iii) to the extent that
the information contained therein is already public; provided, further,
however, that the Debtors may disclose the contents thereof to their
professional advisors, who shall keep all such notices strictly confidential
and shall not disclose the contents thereof to any other person, subject to
further Court order. To the extent confidential information is necessary to
respond to an objection filed with the Court, such confidential information
shall be filed under seal or in a redacted form.
5
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 34 of 97
Exhibit 1A
Declaration of Status as a Substantial Shareholder
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 35 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. ) (Joint Administration Requested)
)
DECLARATION OF STATUS AS A SUBSTANTIAL SHAREHOLDER2
The undersigned party is/has become a Substantial Shareholder with respect to the existing
classes of common stock or any Beneficial Ownership therein (any such record or Beneficial
Ownership of common stock, collectively, the “Common Stock”) of Vyaire Holding Company.
Vyaire Holding Company is a debtor and debtor in possession in Case No. 24-11217 (___) pending
in the United States Bankruptcy Court for the District of Delaware (the “Court”).
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
For purposes of this Declaration: (i) a “Substantial Shareholder” is any entity or individual that has Beneficial
Ownership of at least 152,436 shares of Common Stock (representing approximately 4.5 percent of issued and
outstanding shares of Common Stock); (ii) “Beneficial Ownership” will be determined in accordance with the
applicable rules of sections 382 and 383 of the Internal Revenue Code of 1986, 26 U.S.C. §§ 1–9834 as amended
(the “IRC”), and the Treasury Regulations thereunder (other than Treasury Regulations section 1.382-
2T(h)(2)(i)(A)) and includes direct, indirect, and constructive ownership (e.g., (1) a holding company would be
considered to beneficially own all equity securities owned by its subsidiaries, (2) a partner in a partnership would
be considered to beneficially own its proportionate share of any equity securities owned by such partnership,
(3) an individual and such individual’s family members may be treated as one individual, (4) persons and entities
acting in concert to make a coordinated acquisition of equity securities may be treated as a single entity, and (5) a
holder would be considered to beneficially own equity securities that such holder has an Option (as defined herein)
to acquire). An “Option” to acquire stock includes all interests described in Treasury Regulations section 1.382-
4(d)(9), including any contingent purchase right, warrant, convertible debt, put, call, stock subject to risk of
forfeiture, contract to acquire stock, or similar interest, regardless of whether it is contingent or otherwise not
currently exercisable.
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 36 of 97
As of _______, 2024, the undersigned party currently has Beneficial Ownership of
______ shares of Common Stock. The following table sets forth the date(s) on which the
undersigned party acquired Beneficial Ownership of such Common Stock:
Number of Shares Date Acquired
(Attach additional page or pages if necessary)
The last four digits of the taxpayer identification number of the undersigned party
are ________.
Pursuant to the Interim Order (I) Approving Notification and Hearing Procedures for
Certain Transfers of and Declarations of Worthlessness with Respect to Common Stock and
(II) Granting Related Relief [Docket No. ___] (the “Interim Order”), this declaration
(this “Declaration”) is being filed with the Court and served upon the Notice Parties (as defined in
the Interim Order).
At the election of the Substantial Shareholder, the Declaration to be filed with this Court
(but not the Declaration that is served upon the Notice Parties) may be redacted to exclude the
Substantial Shareholder’s taxpayer identification number and the amount of Common Stock that
the Substantial Shareholder beneficially owns.
2
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 37 of 97
Pursuant to 28 U.S.C. § 1746, under penalties of perjury, the undersigned party hereby
declares that he or she has examined this Declaration and accompanying attachments (if any), and,
to the best of his or her knowledge and belief, this Declaration and any attachments hereto are true,
correct, and complete.
Respectfully submitted,
(Name of Substantial Shareholder)
By:
________________________________
Name: _____________________________
Address: ___________________________
___________________________________
Telephone: _________________________
Facsimile: __________________________
Dated: _____________, 2024
_______________, __________
(City) (State)
3
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 38 of 97
Exhibit 1B
Declaration of Intent to Accumulate Common Stock
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 39 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. ) (Joint Administration Requested)
)
DECLARATION OF INTENT TO
ACCUMULATE COMMON STOCK2
The undersigned party hereby provides notice of its intention to purchase, acquire, or
otherwise accumulate (the “Proposed Transfer”) one or more shares of the existing classes of
common stock or any Beneficial Ownership therein (any such record or Beneficial Ownership of
common stock, collectively, the “Common Stock”) of Vyaire Holding Company. Vyaire Holding
Company is a debtor and debtor in possession in Case No. 24-11217 (___) pending in the United
States Bankruptcy Court for the District of Delaware (the “Court”).
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
For purposes of this Declaration: (i) a “Substantial Shareholder” is any entity or individual that has Beneficial
Ownership of at least 152,436 shares of Common Stock (representing approximately 4.5 percent of all issued and
outstanding shares of Common Stock); and (ii) “Beneficial Ownership” will be determined in accordance with
the applicable rules of sections 382 and 383 of the Internal Revenue Code of 1986, 26 U.S.C. §§ 1–9834 as
amended (the “IRC”), and the Treasury Regulations thereunder (other than Treasury Regulations section 1.382-
2T(h)(2)(i)(A)), and includes direct, indirect, and constructive ownership (e.g., (1) a holding company would be
considered to beneficially own all equity securities owned by its subsidiaries, (2) a partner in a partnership would
be considered to beneficially own its proportionate share of any equity securities owned by such partnership,
(3) an individual and such individual’s family members may be treated as one individual, (4) persons and entities
acting in concert to make a coordinated acquisition of equity securities may be treated as a single entity, and (5) a
holder would be considered to beneficially own equity securities that such holder has an Option (as defined herein)
to acquire). An “Option” to acquire stock includes all interests described in Treasury Regulations section 1.382-
4(d)(9), including any contingent purchase right, warrant, convertible debt, put, call, stock subject to risk of
forfeiture, contract to acquire stock, or similar interest, regardless of whether it is contingent or otherwise not
currently exercisable.
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 40 of 97
If applicable, on _________, 2024, the undersigned party filed a Declaration of Status as a
Substantial Shareholder with the Court and served copies thereof as set forth therein.
The undersigned party currently has Beneficial Ownership of ______ shares of Common
Stock.
Pursuant to the Proposed Transfer, the undersigned party proposes to purchase, acquire, or
otherwise accumulate Beneficial Ownership of ______ shares of Common Stock or an Option with
respect to ______ shares of Common Stock. If the Proposed Transfer is permitted to occur, the
undersigned party will have Beneficial Ownership of _____ shares of Common Stock.
The last four digits of the taxpayer identification number of the undersigned party are
_____.
Pursuant to the Interim Order (I) Approving Notification and Hearing Procedures for
Certain Transfers of and Declarations of Worthlessness with Respect to Common Stock and
(II) Granting Related Relief [Docket No. ____] (the “Interim Order”), this declaration
(this “Declaration”) is being filed with the Court and served upon the Notice Parties (as defined in
the Interim Order).
At the election of the undersigned party, the Declaration to be filed with this Court (but not
the Declaration that is served upon the Notice Parties) may be redacted to exclude the undersigned
party’s taxpayer identification number and the amount of Common Stock that the undersigned
party beneficially owns.
Pursuant to the Interim Order, the undersigned party acknowledges that it is prohibited
from consummating the Proposed Transfer unless and until the undersigned party complies with
the Procedures set forth therein.
2
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 41 of 97
The Debtors and the other Notice Parties have twenty calendar days after receipt of this
Declaration to object to the Proposed Transfer described herein. If the Debtors or any of the other
Notice Parties file an objection, such Proposed Transfer will remain ineffective unless such
objection is withdrawn or such transaction is approved by a final and non-appealable order of the
Court. If the Debtors and the other Notice Parties do not object within such twenty-day period,
then after expiration of such period the Proposed Transfer may proceed solely as set forth in this
Declaration.
Any further transactions contemplated by the undersigned party that may result in the
undersigned party purchasing, acquiring, or otherwise accumulating Beneficial Ownership of
additional shares of Common Stock will each require an additional notice filed with the Court to
be served in the same manner as this Declaration.
Pursuant to 28 U.S.C. § 1746, under penalties of perjury, the undersigned party hereby
declares that he or she has examined this Declaration and accompanying attachments (if any), and,
to the best of his or her knowledge and belief, this Declaration and any attachments hereto are true,
correct, and complete.
Respectfully submitted,
(Name of Declarant)
By:
________________________________
Name: _____________________________
Address: ___________________________
___________________________________
Telephone: _________________________
Facsimile: __________________________
Dated: _______________, 2024
_______________, __________
(City) (State)
3
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 42 of 97
Exhibit 1C
Declaration of Intent to Transfer Common Stock
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 43 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. ) (Joint Administration Requested)
)
DECLARATION OF INTENT TO
TRANSFER COMMON STOCK2
The undersigned party hereby provides notice of its intention to sell, trade, or otherwise
transfer (the “Proposed Transfer”) one or more shares of the existing classes of common stock or
any Beneficial Ownership therein (any such record or Beneficial Ownership of common stock,
collectively, the “Common Stock”) of Vyaire Holding Company. Vyaire Holding Company is a
debtor and debtor in possession in Case No. 24-11217 (___) pending in the United States
Bankruptcy Court for the District of Delaware (the “Court”).
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
For purposes of this Declaration: (i) a “Substantial Shareholder” is any entity or individual that has Beneficial
Ownership of at least 152,436 shares of Common Stock (representing approximately 4.5 percent of all issued and
outstanding shares of Common Stock); and (ii) “Beneficial Ownership” will be determined in accordance with
the applicable rules of sections 382 and 383 of the Internal Revenue Code of 1986, 26 U.S.C. §§ 1–9834 as
amended (the “IRC”), and the Treasury Regulations thereunder (other than Treasury Regulations section 1.382-
2T(h)(2)(i)(A)), and includes direct, indirect, and constructive ownership (e.g., (1) a holding company would be
considered to beneficially own all equity securities owned by its subsidiaries, (2) a partner in a partnership would
be considered to beneficially own its proportionate share of any equity securities owned by such partnership, (3)
an individual and such individual’s family members may be treated as one individual, (4) persons and entities
acting in concert to make a coordinated acquisition of equity securities may be treated as a single entity, and (5)
a holder would be considered to beneficially own equity securities that such holder has an Option (as defined
herein) to acquire). An “Option” to acquire stock includes all interests described in Treasury Regulations section
1.382-4(d)(9), including any contingent purchase right, warrant, convertible debt, put, call, stock subject to risk
of forfeiture, contract to acquire stock, or similar interest, regardless of whether it is contingent or otherwise not
currently exercisable.
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 44 of 97
If applicable, on ______ 2024, the undersigned party filed a Declaration of Status as a
Substantial Shareholder with the Court and served copies thereof as set forth therein.
The undersigned party currently has Beneficial Ownership of ______ shares of Common
Stock.
Pursuant to the Proposed Transfer, the undersigned party proposes to sell, trade, or
otherwise transfer Beneficial Ownership of ______ shares of Common Stock or an Option with
respect to ______ shares of Common Stock. If the Proposed Transfer is permitted to occur, the
undersigned party will have Beneficial Ownership of ______ shares of Common Stock after such
transfer becomes effective.
The last four digits of the taxpayer identification number of the undersigned party are
______ .
Pursuant to the Interim Order (I) Approving Notification and Hearing Procedures for
Certain Transfers of and Declarations of Worthlessness with Respect to Common Stock and
(II) Granting Related Relief [Docket No. ______] (the “Interim Order”), this declaration
(this “Declaration”) is being filed with the Court and served upon the Notice Parties (as defined in
the Interim Order).
At the election of the undersigned party, the Declaration to be filed with this Court (but not
the Declaration that is served upon the Notice Parties) may be redacted to exclude the undersigned
party’s taxpayer identification number and the amount of Common Stock that the undersigned
party beneficially owns.
Pursuant to the Interim Order, the undersigned party acknowledges that it is prohibited
from consummating the Proposed Transfer unless and until the undersigned party complies with
the Procedures set forth therein.
2
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 45 of 97
The Debtors and the other Notice Parties have twenty calendar days after receipt of this
Declaration to object to the Proposed Transfer described herein. If the Debtors or any of the other
Notice Parties file an objection, such Proposed Transfer will remain ineffective unless such
objection is withdrawn or such transaction is approved by a final and non-appealable order of the
Court. If the Debtors and the other Notice Parties do not object within such twenty-day period,
then after expiration of such period the Proposed Transfer may proceed solely as set forth in this
Declaration.
Any further transactions contemplated by the undersigned party that may result in the
undersigned party selling, trading, or otherwise transferring Beneficial Ownership of additional
shares of Common Stock will each require an additional notice filed with the Court to be served
in the same manner as this Declaration.
Pursuant to 28 U.S.C. § 1746, under penalties of perjury, the undersigned party hereby
declares that he or she has examined this Declaration and accompanying attachments (if any), and,
to the best of his or her knowledge and belief, this Declaration and any attachments hereto are true,
correct, and complete.
Respectfully submitted,
(Name of Declarant)
By:
________________________________
Name: _____________________________
Address: ___________________________
___________________________________
Telephone: _________________________
Facsimile: __________________________
Dated: _______________, 2024
_______________, __________
(City) (State)
3
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 46 of 97
Exhibit 1D
Declaration of Status as a 50-Percent Shareholder
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 47 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. ) (Joint Administration Requested)
)
DECLARATION OF STATUS AS A 50-PERCENT SHAREHOLDER
The undersigned party is/has become a 50-Percent Shareholder2 with respect to one or more
shares of the existing classes of common stock or any Beneficial Ownership therein (any such
record or Beneficial Ownership of common stock, collectively, the “Common Stock”) of Vyaire
Holding Company. Vyaire Holding Company is a debtor and debtor in possession in Case No. 24-
11217 (___) pending in the United States Bankruptcy Court for the District of Delaware
(the “Court”).
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
For purposes of this Declaration: (i) a “50-Percent Shareholder” is any person or entity that, at any time since
December 31, 2020, has owned Beneficial Ownership of 50 percent or more of the Common Stock (determined
in accordance with section 382(g)(4)(D) of the IRC and the applicable Treasury Regulations thereunder);
(ii) “Beneficial Ownership” will be determined in accordance with the applicable rules of sections 382 and 383 of
the Internal Revenue Code of 1986, 26 U.S.C. §§ 1–9834 as amended (the “IRC”), and the Treasury Regulations
thereunder (other than Treasury Regulations section 1.382-2T(h)(2)(i)(A)) and includes direct, indirect, and
constructive ownership (e.g., (1) a holding company would be considered to beneficially own all equity securities
owned by its subsidiaries, (2) a partner in a partnership would be considered to beneficially own its proportionate
share of any equity securities owned by such partnership, (3) an individual and such individual’s family members
may be treated as one individual, (4) persons and entities acting in concert to make a coordinated acquisition of
equity securities may be treated as a single entity, and (5) a holder would be considered to beneficially own equity
securities that such holder has an Option (as defined herein) to acquire); and (iii) an “Option” to acquire stock
includes all interests described in Treasury Regulations section 1.382-4(d)(9), including any contingent purchase
right, warrant, convertible debt, put, call, stock subject to risk of forfeiture, contract to acquire stock, or similar
interest, regardless of whether it is contingent or otherwise not currently exercisable.
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 48 of 97
As of ______, 2024, the undersigned party currently has Beneficial Ownership of
______ shares of Common Stock. The following table sets forth the date(s) on which the
undersigned party acquired Beneficial Ownership of such Common Stock:
Number of Shares Date Acquired
(Attach additional page or pages if necessary)
The last four digits of the taxpayer identification number of the undersigned party
are ______.
Pursuant to the Interim Order (I) Approving Notification and Hearing Procedures for
Certain Transfers of and Declarations of Worthlessness with Respect to Common Stock and
(II) Granting Related Relief [Docket No. ______] (the “Interim Order”), this declaration
(this “Declaration”) is being filed with the Court and served upon the Notice Parties (as defined in
the Interim Order).
Pursuant to 28 U.S.C. § 1746, under penalties of perjury, the undersigned party hereby
declares that he or she has examined this Declaration and accompanying attachments (if any), and,
to the best of his or her knowledge and belief, this Declaration and any attachments hereto are true,
correct, and complete.
2
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 49 of 97
Respectfully submitted,
(Name of Declarant)
By:
________________________________
Name: _____________________________
Address: ___________________________
___________________________________
Telephone: _________________________
Facsimile: __________________________
Dated: _______________, 2024
_______________, __________
(City) (State)
3
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 50 of 97
Exhibit 1E
Declaration of Intent to Claim a Worthless Stock Deduction
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 51 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. ) (Joint Administration Requested)
)
DECLARATION OF INTENT TO CLAIM A WORTHLESS STOCK DEDUCTION2
The undersigned party hereby provides notice of its intention to claim a worthless stock
deduction (the “Worthless Stock Deduction”) with respect to one or more shares of the existing
classes of common stock or any Beneficial Ownership therein (any such record or Beneficial
Ownership of common stock, collectively, the “Common Stock”) of Vyaire Holding Company.
Vyaire Holding Company is a debtor and debtor in possession in Case No. 24-11217 (___) pending
in the United States Bankruptcy Court for the District of Delaware (the “Court”).
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
For purposes of this Declaration: (i) a “50-Percent Shareholder” is any person or entity that, at any time since
December 31, 2020, has had Beneficial Ownership of 50 percent or more of the Common Stock (determined in
accordance with IRC § 382(g)(4)(D) and the applicable Treasury Regulations); (ii) “Beneficial Ownership” will
be determined in accordance with the applicable rules of sections 382 and 383 of the Internal Revenue Code of
1986, 26 U.S.C. §§ 1–9834 as amended (the “IRC”), and the Treasury Regulations thereunder (other than
Treasury Regulations section 1.382-2T(h)(2)(i)(A)) and includes direct, indirect, and constructive ownership
(e.g., (1) a holding company would be considered to beneficially own all equity securities owned by its
subsidiaries, (2) a partner in a partnership would be considered to beneficially own its proportionate share of any
equity securities owned by such partnership, (3) an individual and such individual’s family members may be
treated as one individual, (4) persons and entities acting in concert to make a coordinated acquisition of equity
securities may be treated as a single entity, and (5) a holder would be considered to beneficially own equity
securities that such holder has an Option (as defined herein) to acquire). An “Option” to acquire stock includes
all interests described in Treasury Regulations section 1.382-4(d)(9), including any contingent purchase right,
warrant, convertible debt, put, call, stock subject to risk of forfeiture, contract to acquire stock, or similar interest,
regardless of whether it is contingent or otherwise not currently exercisable.
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 52 of 97
If applicable, on ______, 2024, the undersigned party filed a Declaration of Status as a 50-
Percent Shareholder with the Court and served copies thereof as set forth therein.
The undersigned party currently has Beneficial Ownership of ______ shares of Common
Stock.
Pursuant to the Worthless Stock Deduction, the undersigned party proposes to declare that
______ shares of Common Stock became worthless during the tax year ending ______.
The last four digits of the taxpayer identification number of the undersigned party
are ______.
Pursuant to the Interim Order (I) Approving Notification and Hearing Procedures for
Certain Transfers of and Declarations of Worthlessness with Respect to Common Stock and
(II) Granting Related Relief [Docket No. ______ ] (the “Interim Order”), this declaration
(this “Declaration”) is being filed with the Court and served upon the Notice Parties (as defined in
the Interim Order).
At the election of the undersigned party, the Declaration to be filed with this Court (but not
the Declaration that is served upon the Notice Parties) may be redacted to exclude the undersigned
party’s taxpayer identification number and the amount of Common Stock that the undersigned
party beneficially owns.
Pursuant to the Interim Order, the undersigned party acknowledges that the Debtors and
the other Notice Parties have twenty calendar days after receipt of this Declaration to object to the
Worthless Stock Deduction described herein. If the Debtors or any of the other Notice parties file
an objection, such Worthless Stock Deduction will not be effective unless such objection is
withdrawn or such action is approved by a final and non-appealable order of the Court. If the
Debtors and the other Notice Parties do not object within such twenty-day period, then after
2
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 53 of 97
expiration of such period the Worthless Stock Deduction may proceed solely as set forth in this
Declaration.
Any further claims of worthlessness contemplated by the undersigned party will each
require an additional notice filed with the Court to be served in the same manner as this Declaration
and are subject to an additional twenty-day waiting period.
Pursuant to 28 U.S.C. § 1746, under penalties of perjury, the undersigned party hereby
declares that he or she has examined this Declaration and accompanying attachments (if any), and,
to the best of his or her knowledge and belief, this Declaration and any attachments hereto are true,
correct, and complete.
Respectfully submitted,
(Name of Declarant)
By:
________________________________
Name: _____________________________
Address: ___________________________
___________________________________
Telephone: _________________________
Facsimile: __________________________
Dated: _______________, 2024
_______________, __________
(City) (State)
3
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 54 of 97
Exhibit 1F
Notice of Interim Order
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 55 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. ) (Joint Administration Requested)
)
NOTICE OF INTERIM ORDER (I) APPROVING NOTIFICATION
AND HEARING PROCEDURES FOR CERTAIN TRANSFERS OF
AND DECLARATIONS OF WORTHLESSNESS WITH RESPECT
TO COMMON STOCK AND (II) GRANTING RELATED RELIEF
TO: ALL ENTITIES (AS DEFINED BY SECTION 101(15) OF THE BANKRUPTCY
CODE) THAT MAY HOLD BENEFICIAL OWNERSHIP OF THE EXISTING CLASSES
OF COMMON STOCK (THE “COMMON STOCK”) OF VYAIRE HOLDING
COMPANY:
PLEASE TAKE NOTICE that on June 9, 2024 (the “Petition Date”), the above-captioned
debtors and debtors in possession (collectively, the “Debtors”), filed petitions with the United
States Bankruptcy Court for the District of Delaware (the “Court”) under chapter 11 of title 11 of
the United States Code (the “Bankruptcy Code”). Subject to certain exceptions, section 362 of the
Bankruptcy Code operates as a stay of any act to obtain possession of property of or from the
Debtors’ estates or to exercise control over property of or from the Debtors’ estates.
PLEASE TAKE FURTHER NOTICE that on the Petition Date, the Debtors filed the
Motion of Debtors for Entry of Interim and Final Orders (I) Approving Notification and Hearing
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.
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 56 of 97
Procedures for Certain Transfers of and Declarations of Worthlessness with Respect to Common
Stock and (II) Granting Related Relief [Docket No. [●]] (the “Motion”).
PLEASE TAKE FURTHER NOTICE that on [●][●], 2024, the Court entered the Interim
Order (I) Approving Notification and Hearing Procedures for Certain Transfers of and
Declarations of Worthlessness with Respect to Common Stock and (II) Granting Related Relief
[Docket No. [●]] (the “Interim Order”) approving procedures for certain transfers and declarations
of worthlessness with respect to Common Stock, set forth in Exhibit 1 attached to the Interim
Order (the “Procedures”).2
PLEASE TAKE FURTHER NOTICE that, pursuant to the Interim Order, a Substantial
Shareholder may not consummate any purchase, sale, or other transfer of Common Stock, or
Beneficial Ownership of Common Stock in violation of the Procedures, and any such transaction
in violation of the Procedures shall be null and void ab initio.
PLEASE TAKE FURTHER NOTICE that, pursuant to the Interim Order, the
Procedures shall apply to the holding and transfers of Common Stock, or any Beneficial Ownership
therein by a Substantial Shareholder or someone who may become a Substantial Shareholder.
PLEASE TAKE FURTHER NOTICE that pursuant to the Interim Order, upon the
request of any person or entity, the proposed notice, claims, and solicitation agent for the Debtors,
Omni Agent Solutions, Inc., will provide a copy of the Interim Order and a form of each of the
declarations required to be filed by the Procedures in a reasonable period of time. Such
declarations are also available via PACER on the Court’s website at https://ecf.deb.uscourts.gov/
2
Capitalized terms used but not otherwise defined herein have the meanings ascribed to them in the Interim Order
or the Motion, as applicable.
2
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 57 of 97
for a fee, or free of charge by accessing the Debtors’ restructuring website at
https://omniagentsolutions.com/Vyaire.
PLEASE TAKE FURTHER NOTICE that, pursuant to the Interim Order, failure to
follow the Procedures set forth in the Interim Order shall constitute a violation of, among other
things, the automatic stay provisions of section 362 of the Bankruptcy Code.
PLEASE TAKE FURTHER NOTICE that final hearing (the “Final Hearing”) on the
Motion shall be held on _________, 2024, at__:__ _.m., prevailing Eastern Time. Any objections
or responses to entry of a final order on the Motion shall be filed on or before 4:00 p.m., prevailing
Eastern Time, on _________, 2024 and shall be served on: (a) the Debtors, 26125 North
Riverwoods Boulevard, Mettawa, Illinois, USA 60045, Attn.: Charles Braley
(cbraley@alixpartners.com); (b) proposed co-counsel to the Debtors (i) Kirkland & Ellis LLP, 601
Lexington Avenue, New York, New York 10022, Attn.: Joshua A. Sussberg, P.C.
(joshua.sussberg@kirkland.com), Chris Ceresa (chris.ceresa@kirkland.com), and Tiffani Chanroo
(tiffani.chanroo@kirkland.com, (ii) Kirkland & Ellis LLP, 333 West Wolf Point Plaza, Chicago,
Illinois, 60654, Attn.: Spencer A. Winters (spencer.winters@kirkland.com) and Yusuf U. Salloum
(yusuf.salloum@kirkland.com), (iii) 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 (iv) Cole Schotz P.C., Court Plaza
North, 25 Main Street, Hackensack, New Jersey 07601, Attn.: Michael D. Sirota, Esq.
(msirota@coleschotz.com) and Warren A. Usatine, Esq. (wusatine@coleschotz.com);
(c) counsel to the 1L Ad Hoc Group, (i) Gibson, Dunn & Crutcher LLP, 200 Park Avenue, New
3
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 58 of 97
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);
(d) the United States Trustee, 844 King Street, Suite 2207, Lockbox 35, Wilmington, Delaware
19801, Attn.: Benjamin A. Hackman (Benjamin.A.Hackman@usdoj.gov); and (e) any statutory
committee appointed in these chapter 11 cases. In the event no objections to entry of the Final
Order on the Motion are timely received, the Court may enter such Final Order without need for
the Final Hearing.
PLEASE TAKE FURTHER NOTICE that nothing in the Interim Order shall preclude
any person desirous of acquiring any Common Stock from requesting relief from the Interim Order
from this Court, subject to the Debtors’ and the other Notice Parties’ rights to oppose such relief.
PLEASE TAKE FURTHER NOTICE that other than to the extent that the Interim Order
expressly conditions or restricts trading in Common Stock, nothing in the Interim Order or in the
Motion shall, or shall be deemed to, prejudice, impair, or otherwise alter or affect the rights of any
holders of Common Stock, including in connection with the treatment of any such stock under any
chapter 11 plan or any applicable bankruptcy court order.
PLEASE TAKE FURTHER NOTICE that any prohibited purchase, sale, or other
transfer of Common Stock, Beneficial Ownership thereof, or option with respect thereto in
violation of the Interim Order is prohibited and shall be null and void ab initio and may be subject
to additional sanctions as this court may determine.
4
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 59 of 97
PLEASE TAKE FURTHER NOTICE that the requirements set forth in the Interim
Order are in addition to the requirements of applicable law and do not excuse
compliance therewith.
5
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 60 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 14 Filed 06/10/24 Page 61 of 97
Exhibit B
Proposed Final Order
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 62 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. ) (Joint Administration Requested)
) Re: Docket No. __
FINAL ORDER (I) APPROVING NOTIFICATION
AND HEARING PROCEDURES FOR CERTAIN TRANSFERS OF
AND DECLARATIONS OF WORTHLESSNESS WITH RESPECT
TO COMMON STOCK AND (II) GRANTING RELATED RELIEF
Upon the motion (the “Motion”)2 of the above-captioned debtors and debtors in possession
(collectively, the “Debtors”) for the entry of a final order (this “Final Order”), (a) authorizing the
Debtors to approve certain notification and hearing procedures, substantially in the form of
Exhibit 1 attached hereto (the “Procedures”), related to certain transfers of, or declarations of
worthlessness with respect to Debtor Vyaire Holding Company’s existing classes of common stock
or any Beneficial Ownership3 therein (any such record or Beneficial Ownership of common stock,
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 otherwise defined herein have the meanings ascribed to them in the Motion.
3
“Beneficial Ownership” will be determined in accordance with the applicable rules of sections 382 and 383 of the
Internal Revenue Code of 1986, 26 U.S.C. §§ 1–9834 as amended (the “IRC”), and the U.S. Department of the
Treasury regulations thereunder (“Treasury Regulations”) (other than Treasury Regulations
section 1.382-2T(h)(2)(i)(A)), and includes direct, indirect, and constructive ownership (e.g., (1) a holding
company would be considered to beneficially own all equity securities owned by its subsidiaries, (2) a partner in
a partnership would be considered to beneficially own its proportionate share of any equity securities owned by
such partnership, (3) an individual and such individual’s family members may be treated as one individual,
(4) persons and entities acting in concert to make a coordinated acquisition of equity securities may be treated as
a single entity, and (5) a holder would be considered to beneficially own equity securities that such holder has an
Option (as defined herein) to acquire). An “Option” to acquire stock includes all interests described in Treasury
Regulations section 1.382-4(d)(9), including any contingent purchase right, warrant, convertible debt, put, call,
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 63 of 97
(collectively, the “Common Stock”)); (b) directing that any purchase, sale, other transfer of, or
declaration of worthlessness with respect to Common Stock in violation of the Procedures shall be
null and void ab initio, and (c) granting related relief, all as more fully set forth in the Motion; and
upon the First Day Declaration; and 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 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; and this Court having found
that this is a core proceeding pursuant to 28 U.S.C. § 157(b)(2); and this Court having found that
this Court may enter a final order consistent with Article III of the United States Constitution; and
this Court having found that venue of this proceeding and the Motion in this district is proper
pursuant to 28 U.S.C. §§ 1408 and 1409; and this Court having found that the relief requested in
the Motion is in the best interests of the Debtors’ estates, their creditors, and other parties in
interest; and this Court having found that the Debtors’ notice of the Motion and opportunity for a
hearing on the Motion were appropriate under the circumstances and no other notice need be
provided; and this Court having reviewed the Motion and having heard the statements in support
of the relief requested therein at a hearing before this Court (the “Hearing”); and this Court having
determined that the legal and factual bases set forth in the Motion and at the Hearing establish just
cause for the relief granted herein; and upon all of the proceedings had before this Court; and after
due deliberation and sufficient cause appearing therefor, it is HEREBY ORDERED THAT:
1. The Motion is granted on a final basis as set forth herein.
stock subject to risk of forfeiture, contract to acquire stock, or similar interest, regardless of whether it is
contingent or otherwise not currently exercisable.
2
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 64 of 97
2. The Procedures, as set forth in Exhibit 1 attached to this Final Order are hereby
approved on a final basis.
3. Any postpetition transfer of or postpetition declaration of worthlessness with
respect to Beneficial Ownership of Common Stock in violation of the Procedures, including but
not limited to the notice requirements, shall be null and void ab initio.
4. In the case of any such postpetition transfer of Beneficial Ownership of Common
Stock in violation of the Procedures, including but not limited to the notice requirements, the
person or entity making such transfer shall be required to take remedial actions specified by the
Debtors, which may include the actions specified in Private Letter Ruling 201010009 (Dec. 4,
2009), to appropriately reflect that such transfer is null and void ab initio.
5. In the case of any such postpetition declaration of worthlessness with respect to
Beneficial Ownership of Common Stock in violation of the Procedures, including the notice
requirements, the person or entity making such declaration shall be required to file an amended
tax return revoking such declaration and any related deduction to appropriately reflect that such
declaration is void ab initio.
6. The Debtors may retroactively or prospectively, in writing, waive any and all
restrictions, stays and notification procedures set forth in the Procedures.
7. The Debtors shall post the Procedures to the website established by Omni Agent
Solutions, Inc. for these chapter 11 cases (https://omniagentsolutions.com/Vyaire), such notice
being reasonably calculated to provide notice to all parties that may be affected by the Procedures,
whether known or unknown.
3
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 65 of 97
8. Nothing in the Motion or this Interim Order waives or modifies the requirements
of the Restructuring Support Agreement, including, without limitation, the consent and
consultation rights contained therein.
9. 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
postpetition financing facilities or credit agreement, 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 Order and any
action taken or proposed to be taken hereunder, the terms of the DIP Order shall control.
10. To the extent that this Final Order is inconsistent with any prior order or pleading
with respect to the Motion in these chapter 11 cases, the terms of this Final Order shall govern.
11. Nothing herein shall preclude any person desirous of acquiring Common Stock
from requesting relief from this Final Order from this Court, subject to the Debtors’ and the other
Notice Parties’ rights to oppose such relief.
12. The requirements set forth in this Final Order are in addition to the requirements of
applicable law and do not excuse compliance therewith.
13. Nothing contained in the Motion or this Final Order, and no action taken pursuant
to the relief requested or granted (including any payment made in accordance with this Final
Order), is intended as or shall be construed or deemed to be: (a) an admission as to the amount of,
basis for, priority of, or validity of any claim against the Debtors under the Bankruptcy Code or
other applicable nonbankruptcy law; (b) a waiver of the Debtors’ or any other party in interest’s
right to dispute any claim on any grounds; (c) a promise or requirement to pay any particular claim;
4
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 66 of 97
(d) an implication, admission or finding that any particular claim is an administrative expense
claim, other priority claim or otherwise of a type specified or defined in the Motion or this Final
Order; (e) a request or authorization to assume, adopt, or reject any agreement, contract, or lease
pursuant to section 365 of the Bankruptcy Code; (f) an admission as to the validity, priority,
enforceability or perfection of any lien on, security interest in, or other encumbrance on property
of the Debtors’ estates; or (g) a waiver or limitation of any claims, causes of action or other rights
of the Debtors or any other party in interest against any person or entity under the Bankruptcy
Code or any other applicable law.
14. The contents of the Motion satisfy the requirements of Bankruptcy Rule 6003(b).
15. 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 the Local Rules are satisfied
by such notice.
16. Notwithstanding Bankruptcy Rule 6004(h), the terms and conditions of this Final
Order are immediately effective and enforceable upon its entry.
17. The Debtors are authorized to take all actions necessary to effectuate the relief
granted in this Final Order in accordance with the Motion.
18. This Court retains exclusive jurisdiction with respect to all matters arising from or
related to the implementation, interpretation, and enforcement of this Final Order.
5
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 67 of 97
Exhibit 1
Procedures for Transfers of and Declarations of Worthlessness
with Respect to Beneficial Ownership of Common Stock
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 68 of 97
PROCEDURES FOR TRANSFERS OF AND DECLARATIONS
OF WORTHLESSNESS WITH RESPECT TO COMMON STOCK
The following procedures apply to transfers of Common Stock:1
a. Any entity (as defined in section 101(15) of the Bankruptcy Code) that is a
Substantial Shareholder (as defined herein) must file with the Court, and
serve upon: (i) the Debtors, Vyaire Medical, Inc., 26125 North Riverwoods
Boulevard, Mettawa, Illinois 60045, Attn.: Charles Braley
(cbraley@alixpartners.com); (ii) proposed co-counsel to the Debtors
(a) Kirkland & Ellis LLP, 601 Lexington Avenue, New York, New York
10022, Attn.: Joshua A. Sussberg, P.C. (joshua.sussberg@kirkland.com),
Chris Ceresa (chris.ceresa@kirkland.com), and Tiffani Chanroo
(tiffani.chanroo@kirkland.com), (b) Kirkland & Ellis LLP, 333 Wolf Point
Plaza, Chicago, Illinois, 60654, Attn.: Spencer A. Winters
(spencer.winters@kirkland.com) and Yusuf U. Salloum
(yusuf.salloum@kirkland.com); and (c) 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 (d) Cole Schotz P.C., Court Plaza
North, 25 Main Street, Hackensack, New Jersey 07601, Attn.: Michael D.
Sirota, Esq. (msirota@coleschotz.com), Warren A. Usatine, Esq.
(wusatine@coleschotz.com); (iii) counsel to the 1L Ad Hoc Group, 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 (iv) Pachulski Stang Ziehl & Jones LLP, 919 North Market Street, 17th
Floor, Wilmington, DE 19801, Attn.: Laura Davis Jones
(ljones@pszjlaw.com); (iv) the United States Trustee for the District of
Delaware, Attn.: Benjamin A. Hackman
(Benjamin.A.Hackman@usdoj.gov); and (v) any statutory committee
appointed in these chapter 11 cases (collectively, the
“Notice Parties”), a declaration of such status, substantially in the form
attached hereto as Exhibit 1A (each, a “Declaration of Status as a
Substantial Shareholder”), on or before the later of (A) twenty calendar days
after the date of the Notice of Final Order, or (B) 10 calendar days after
becoming a Substantial Shareholder; provided that, for the avoidance of
doubt, the other procedures set forth herein shall apply to any Substantial
Shareholder even if no Declaration of Status as a Substantial Shareholder has
been filed.
1
Capitalized terms used but not otherwise defined herein have the meanings given to them in the Motion.
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 69 of 97
b. Prior to effectuating any transfer of Beneficial Ownership of Common Stock
that would result in an increase in the amount of Common Stock of which a
Substantial Shareholder has Beneficial Ownership or would result in an
entity or individual becoming a Substantial Shareholder, the parties to such
transaction must file with the Court, and serve upon the Notice Parties, an
advance written declaration of the intended transfer of Common Stock,
substantially in the form attached hereto as Exhibit 1B (each, a “Declaration
of Intent to Accumulate Common Stock”).
c. Prior to effectuating any transfer of Beneficial Ownership of Common Stock
that would result in a decrease in the amount of Common Stock of which a
Substantial Shareholder has Beneficial Ownership or would result in an
entity or individual ceasing to be a Substantial Shareholder, the parties to
such transaction must file with the Court, and serve upon the Notice Parties,
an advance written declaration of the intended transfer of Common Stock,
substantially in the form attached hereto as Exhibit 1C (each, a “Declaration
of Intent to Transfer Common Stock,” and together with a Declaration of
Intent to Accumulate Common Stock, each, a “Declaration of Proposed
Transfer”).
d. The Debtors and the other Notice Parties shall have ten calendar days after
receipt of a Declaration of Proposed Transfer to file with the Court and serve
on such Substantial Shareholder or potential Substantial Shareholder an
objection to any proposed transfer of Beneficial Ownership of Common
Stock, described in the Declaration of Proposed Transfer on the grounds that
such transfer is reasonably expected to adversely affect the Debtors’ ability
to utilize their Tax Attributes. If the Debtors or any of the other Notice
Parties file an objection, such transaction will remain ineffective unless such
objection is withdrawn, or such transaction is approved by a final and
non-appealable order of the Court. If the Debtors and the other Notice
Parties do not object within such ten-day period, such transaction can
proceed solely as set forth in the Declaration of Proposed Transfer. Further
transactions within the scope of this paragraph must be the subject of
additional notices in accordance with the procedures set forth herein, with an
additional ten-day waiting period for each Declaration of Proposed Transfer.
To the extent that the Debtors receive an appropriate Declaration of Proposed
Transfer and determine in their business judgment not to object, they shall
provide notice of that decision as soon as is reasonably practicable to the
Notice Parties.
e. For purposes of these Procedures (including, for the avoidance of doubt, with
respect to both transfers and declarations of worthlessness):
(i) a “Substantial Shareholder” is any entity or individual person that has
Beneficial Ownership of at least 152,436 shares of Common Stock;
(representing approximately 4.5 percent of all issued and outstanding shares
of Common Stock); and (ii) “Beneficial Ownership” will be determined in
accordance with the applicable rules of section 382 of the IRC, and the
2
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 70 of 97
Treasury Regulations promulgated thereunder (other than Treasury
Regulations section 1.382-2T(h)(2)(i)(A)) and includes direct, indirect, and
constructive ownership (e.g., (1) a holding company would be considered to
beneficially own all equity securities owned by its subsidiaries, (2) a partner
in a partnership would be considered to beneficially own its proportionate
share of any equity securities owned by such partnership, (3) an individual
and such individual’s family members may be treated as one individual,
(4) persons and entities acting in concert to make a coordinated acquisition
of equity securities may be treated as a single entity, and (5) a holder would
be considered to beneficially own equity securities that such holder has an
Option (as defined herein) to acquire). An “Option” to acquire stock
includes all interests described in Treasury Regulations
section 1.382-4(d)(9), including any contingent purchase right, warrant,
convertible debt, put, call, stock subject to risk of forfeiture, contract to
acquire stock, or similar interest, regardless of whether it is contingent or
otherwise not currently exercisable.
The following procedures apply for declarations of worthlessness of Common Stock:
a. Any person or entity that currently is or becomes a 50-Percent Shareholder2
must file with the Court and serve upon the Notice Parties a declaration of
such status, substantially in the form attached hereto as Exhibit 1D (each,
a “Declaration of Status as a 50-Percent Shareholder”), on or before the later
of (i) twenty calendar days after the date of the Notice of Final Order and
(ii) 10 calendar days after becoming a 50-Percent Shareholder; provided that,
for the avoidance of doubt, the other procedures set forth herein shall apply
to any 50-Percent Shareholder even if no Declaration of Status as a
50-Percent Shareholder has been filed.
b. Prior to filing any federal or state tax return, or any amendment to such a
return, or taking any other action that claims any deduction for worthlessness
of Beneficial Ownership of Common Stock for a taxable year ending before
the Debtors’ emergence from chapter 11 protection, such 50-Percent
Shareholder must file with the Court and serve upon the Notice Parties a
declaration of intent to claim a worthless stock deduction (a “Declaration of
Intent to Claim a Worthless Stock Deduction”), substantially in the form
attached hereto as Exhibit 1E.
i. The Debtors and the other Notice Parties shall have ten calendar
days after receipt of a Declaration of Intent to Claim a Worthless
Stock Deduction to file with the Court and serve on such 50-Percent
Shareholder an objection to any proposed claim of worthlessness
described in the Declaration of Intent to Claim a Worthless Stock
2
For purposes of the Procedures, a “50-Percent Shareholder” is any person or entity that, at any time since
December 31, 2020, has owned Beneficial Ownership of 50% or more of the Common Stock (determined in
accordance with section 382(g)(4)(D) of the IRC and the applicable Treasury Regulations thereunder).
3
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 71 of 97
Deduction on the grounds that such claim might adversely affect the
Debtors’ ability to utilize their Tax Attributes.
ii. If the Debtors or the other Notice Parties timely object, the filing of
the tax return or amendment thereto with such claim will not be
permitted unless approved by a final and non-appealable order of
the Court, unless such objection is withdrawn.
iii. If the Debtors and the other Notice Parties do not object within such
ten-day period, the filing of the return or amendment with such
claim will be permitted solely as described in the Declaration of
Intent to Claim a Worthless Stock Deduction. Additional returns
and amendments within the scope of this section must be the subject
of additional notices as set forth herein, with an additional ten-day
waiting period. To the extent that the Debtors receive an appropriate
Declaration of Intent to Claim a Worthless Stock Deduction and
determine in their business judgment not to object, they shall
provide notice of that decision as soon as is reasonably practicable
to the Notice Parties.
NOTICE PROCEDURES
The following notice procedures apply to these Procedures:
a. No later than 5 business days following entry of the Interim Order, the
Debtors shall serve a notice by first class mail and email, if available,
substantially in the form attached to the Procedures as Exhibit 1F
(the “Notice of Interim Order”), on: (i) the U.S. Trustee; (ii) Gibson, Dunn &
Crutcher LLP, as counsel to the 1L Ad Hoc Group; (iii) the entities listed on
the consolidated list of creditors holding the thirty largest unsecured claims;
(iv) the U.S. Securities and Exchange Commission; (v) the Internal Revenue
Service; (vi) the United States Attorney’s Office for the District of Delaware;
(vii) the state attorneys general for states in which the Debtors conduct
business; (viii) the registered and nominee holders of the Common Stock;
and (ix) the Notice Parties. Additionally, no later than 5 business days
following entry of the Final Order, the Debtors shall serve a Notice of Interim
Order modified to reflect that the Final Order has been entered (as modified,
the “Notice of Final Order”) on the same entities that received the Notice of
Interim Order.
b. All registered and nominee holders of Common Stock shall be required to
serve the Notice of Interim Order or Notice of Final Order, as applicable, on
any holder for whose benefit such registered or nominee holder holds such
Common Stock, down the chain of ownership for all such holders of
Common Stock.
4
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 72 of 97
c. Any entity or individual, or broker or agent acting on such entity’s or
individual’s behalf who sells Common Stock to another entity or individual,
shall be required to serve a copy of the Notice of Interim Order or Notice of
Final Order, as applicable, on such purchaser of such Common Stock, or any
broker or agent acting on such purchaser’s behalf.
d. To the extent confidential information is required in any declaration
described in the Procedures, such confidential information may be filed with
the Court in redacted form; provided, however, that any such declarations
served on the Notice Parties shall not be in redacted form. The Notice
Parties shall keep all information provided in such declarations strictly
confidential and shall not disclose the contents thereof to any person except:
(i) to the extent necessary to respond to a petition or objection filed with the
Court; (ii) to the extent otherwise required by law; or (iii) to the extent that
the information contained therein is already public; provided, further,
however, that the Debtors may disclose the contents thereof to their
professional advisors, who shall keep all such notices strictly confidential
and shall not disclose the contents thereof to any other person, subject to
further Court order. To the extent confidential information is necessary to
respond to an objection filed with the Court, such confidential information
shall be filed under seal or in a redacted form.
5
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 73 of 97
Exhibit 1A
Declaration of Status as a Substantial Shareholder
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 74 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. ) (Joint Administration Requested)
)
DECLARATION OF STATUS AS A SUBSTANTIAL SHAREHOLDER2
The undersigned party is/has become a Substantial Shareholder with respect to the existing
classes of common stock or any Beneficial Ownership therein (any such record or Beneficial
Ownership of common stock, collectively, the “Common Stock”) Vyaire Holding Company.
Vyaire Holding Company is a debtor and debtor in possession in Case No. 24-11217 (___) pending
in the United States Bankruptcy Court for the District of Delaware (the “Court”).
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
For purposes of this Declaration: (i) a “Substantial Shareholder” is any entity or individual that has Beneficial
Ownership of at least (A) 152,436 shares of Common Stock (representing approximately 4.5 percent of issued
and outstanding shares of Common Stock); (ii) “Beneficial Ownership” will be determined in accordance with
the applicable rules of sections 382 and 383 of the Internal Revenue Code of 1986, 26 U.S.C. §§ 1–9834 as
amended (the “IRC”), and the Treasury Regulations thereunder (other than Treasury Regulations section 1.382-
2T(h)(2)(i)(A)) and includes direct, indirect, and constructive ownership (e.g., (1) a holding company would be
considered to beneficially own all equity securities owned by its subsidiaries, (2) a partner in a partnership would
be considered to beneficially own its proportionate share of any equity securities owned by such partnership,
(3) an individual and such individual’s family members may be treated as one individual, (4) persons and entities
acting in concert to make a coordinated acquisition of equity securities may be treated as a single entity, and (5) a
holder would be considered to beneficially own equity securities that such holder has an Option (as defined herein)
to acquire). An “Option” to acquire stock includes all interests described in Treasury Regulations section 1.382-
4(d)(9), including any contingent purchase right, warrant, convertible debt, put, call, stock subject to risk of
forfeiture, contract to acquire stock, or similar interest, regardless of whether it is contingent or otherwise not
currently exercisable.
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 75 of 97
As of______, 2024, the undersigned party currently has Beneficial Ownership of
______ shares of Common Stock. The following table sets forth the date(s) on which the
undersigned party acquired Beneficial Ownership of such Common Stock:
Number of Shares Date Acquired
(Attach additional page or pages if necessary)
The last four digits of the taxpayer identification number of the undersigned party
are ______.
Pursuant to the Final Order (I) Approving Notification and Hearing Procedures for
Certain Transfers of and Declarations of Worthlessness with Respect to Common Stock and
(II) Granting Related Relief [Docket No. ______] (the “Final Order”), this declaration
(this “Declaration”) is being filed with the Court and served upon the Notice Parties (as defined in
the Final Order).
At the election of the Substantial Shareholder, the Declaration to be filed with this Court
(but not the Declaration that is served upon the Notice Parties) may be redacted to exclude the
Substantial Shareholder’s taxpayer identification number and the amount of Common Stock that
the Substantial Shareholder beneficially owns.
2
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 76 of 97
Pursuant to 28 U.S.C. § 1746, under penalties of perjury, the undersigned party hereby
declares that he or she has examined this Declaration and accompanying attachments (if any), and,
to the best of his or her knowledge and belief, this Declaration and any attachments hereto are true,
correct, and complete.
Respectfully submitted,
(Name of Substantial Shareholder)
By:
________________________________
Name: _____________________________
Address: ___________________________
___________________________________
Telephone: _________________________
Facsimile: __________________________
Dated: _______________, 2024
_______________, __________
(City) (State)
3
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 77 of 97
Exhibit 1B
Declaration of Intent to Accumulate Common Stock
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 78 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. ) (Joint Administration Requested)
)
DECLARATION OF INTENT TO
ACCUMULATE COMMON STOCK2
The undersigned party hereby provides notice of its intention to purchase, acquire, or
otherwise accumulate (the “Proposed Transfer”) one or more shares of the existing classes of
common stock or any Beneficial Ownership therein (any such record or Beneficial Ownership of
common stock, collectively, the “Common Stock”) of Vyaire Holding Company. Vyaire Holding
Company is a debtor and debtor in possession in Case No. 24-11217 (___) pending in the United
States Bankruptcy Court for the District of Delaware (the “Court”).
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
For purposes of this Declaration: (i) a “Substantial Shareholder” is any entity or individual that has Beneficial
Ownership of at least 152,436 shares of Common Stock (representing approximately 4.5 percent of all issued and
outstanding shares of Common Stock); and (ii) “Beneficial Ownership” will be determined in accordance with
the applicable rules of sections 382 and 383 of the Internal Revenue Code of 1986, 26 U.S.C. §§ 1–9834 as
amended (the “IRC”), and the Treasury Regulations thereunder (other than Treasury Regulations section 1.382-
2T(h)(2)(i)(A)), and includes direct, indirect, and constructive ownership (e.g., (1) a holding company would be
considered to beneficially own all equity securities owned by its subsidiaries, (2) a partner in a partnership would
be considered to beneficially own its proportionate share of any equity securities owned by such partnership, (3)
an individual and such individual’s family members may be treated as one individual, (4) persons and entities
acting in concert to make a coordinated acquisition of equity securities may be treated as a single entity, and (5)
a holder would be considered to beneficially own equity securities that such holder has an Option (as defined
herein) to acquire). An “Option” to acquire stock includes all interests described in Treasury Regulations section
1.382-4(d)(9), including any contingent purchase right, warrant, convertible debt, put, call, stock subject to risk
of forfeiture, contract to acquire stock, or similar interest, regardless of whether it is contingent or otherwise not
currently exercisable.
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 79 of 97
If applicable, on ______, 2024, the undersigned party filed a Declaration of Status as a
Substantial Shareholder with the Court and served copies thereof as set forth therein.
The undersigned party currently has Beneficial Ownership of ______ shares of Common
Stock.
Pursuant to the Proposed Transfer, the undersigned party proposes to purchase, acquire, or
otherwise accumulate Beneficial Ownership of ______ shares of Common Stock or an Option with
respect to ______ shares of Common Stock. If the Proposed Transfer is permitted to occur, the
undersigned party will have Beneficial Ownership of ______ shares of Common Stock.
The last four digits of the taxpayer identification number of the undersigned party
are ______.
Pursuant to the Final Order (I) Approving Notification and Hearing Procedures for
Certain Transfers of and Declarations of Worthlessness with Respect to Common Stock and
(II) Granting Related Relief [Docket No. ______] (the “Final Order”), this declaration
(this “Declaration”) is being filed with the Court and served upon the Notice Parties (as defined in
the Final Order).
At the election of the undersigned party, the Declaration to be filed with this Court (but not
the Declaration that is served upon the Notice Parties) may be redacted to exclude the undersigned
party’s taxpayer identification number and the amount of Common Stock that the undersigned
party beneficially owns.
Pursuant to the Final Order, the undersigned party acknowledges that it is prohibited from
consummating the Proposed Transfer unless and until the undersigned party complies with the
Procedures set forth therein.
2
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 80 of 97
The Debtors and the other Notice Parties have twenty calendar days after receipt of this
Declaration to object to the Proposed Transfer described herein. If the Debtors or any of the other
Notice Parties file an objection, such Proposed Transfer will remain ineffective unless such
objection is withdrawn or such transaction is approved by a final and non-appealable order of the
Court. If the Debtors and the other Notice Parties do not object within such twenty-day period,
then after expiration of such period the Proposed Transfer may proceed solely as set forth in this
Declaration.
Any further transactions contemplated by the undersigned party that may result in the
undersigned party purchasing, acquiring, or otherwise accumulating Beneficial Ownership of
additional shares of Common Stock will each require an additional notice filed with the Court to
be served in the same manner as this Declaration.
Pursuant to 28 U.S.C. § 1746, under penalties of perjury, the undersigned party hereby
declares that he or she has examined this Declaration and accompanying attachments (if any), and,
to the best of his or her knowledge and belief, this Declaration and any attachments hereto are true,
correct, and complete.
Respectfully submitted,
(Name of Declarant)
By:
________________________________
Name: _____________________________
Address: ___________________________
___________________________________
Telephone: _________________________
Facsimile: __________________________
Dated: _______________, 2024
_______________, __________
(City) (State)
3
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 81 of 97
Exhibit 1C
Declaration of Intent to Transfer Common Stock
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 82 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. ) (Joint Administration Requested)
)
DECLARATION OF INTENT TO
TRANSFER COMMON STOCK2
The undersigned party hereby provides notice of its intention to sell, trade, or otherwise
transfer (the “Proposed Transfer”) one or more shares of the existing classes of common stock or
any Beneficial Ownership therein (any such record or Beneficial Ownership of common stock,
collectively, the “Common Stock”) of Vyaire Holding Company. Vyaire Holding Company is a
debtor and debtor in possession in Case No. 24-11217 (___) pending in the United States
Bankruptcy Court for the District of Delaware (the “Court”).
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
For purposes of this Declaration: (i) a “Substantial Shareholder” is any entity or individual that has Beneficial
Ownership of at least 152,436 shares of Common Stock (representing approximately 4.5 percent of all issued and
outstanding shares of Common Stock); and (ii) “Beneficial Ownership” will be determined in accordance with
the applicable rules of sections 382 and 383 of the Internal Revenue Code of 1986, 26 U.S.C. §§ 1–9834 as
amended (the “IRC”), and the Treasury Regulations thereunder (other than Treasury Regulations section 1.382-
2T(h)(2)(i)(A)), and includes direct, indirect, and constructive ownership (e.g., (1) a holding company would be
considered to beneficially own all equity securities owned by its subsidiaries, (2) a partner in a partnership would
be considered to beneficially own its proportionate share of any equity securities owned by such partnership, (3)
an individual and such individual’s family members may be treated as one individual, (4) persons and entities
acting in concert to make a coordinated acquisition of equity securities may be treated as a single entity, and (5)
a holder would be considered to beneficially own equity securities that such holder has an Option (as defined
herein) to acquire). An “Option” to acquire stock includes all interests described in Treasury Regulations section
1.382-4(d)(9), including any contingent purchase right, warrant, convertible debt, put, call, stock subject to risk
of forfeiture, contract to acquire stock, or similar interest, regardless of whether it is contingent or otherwise not
currently exercisable.
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 83 of 97
If applicable, on ______, 2024, the undersigned party filed a Declaration of Status as a
Substantial Shareholder with the Court and served copies thereof as set forth therein.
The undersigned party currently has Beneficial Ownership of ______ shares of Common
Stock.
Pursuant to the Proposed Transfer, the undersigned party proposes to sell, trade, or
otherwise transfer Beneficial Ownership of ______ shares of Common Stock or an Option with
respect to ______ shares of Common Stock. If the Proposed Transfer is permitted to occur, the
undersigned party will have Beneficial Ownership of ______ shares Common Stock after such
transfer becomes effective.
The last four digits of the taxpayer identification number of the undersigned party
are ______.
Pursuant to the Final Order Approving Notification and Hearing Procedures for Certain
Transfers of and Declarations of Worthlessness with Respect to Common Stock and (II) Granting
Related Relief [Docket No. ______] (the “Final Order”), this declaration (this “Declaration”) is
being filed with the Court and served upon the Notice Parties (as defined in the Final Order).
At the election of the undersigned party, the Declaration to be filed with this Court (but not
the Declaration that is served upon the Notice Parties) may be redacted to exclude the undersigned
party’s taxpayer identification number and the amount of Common Stock that the undersigned
party beneficially owns.
Pursuant to the Final Order, the undersigned party acknowledges that it is prohibited from
consummating the Proposed Transfer unless and until the undersigned party complies with the
Procedures set forth therein.
2
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 84 of 97
The Debtors and the other Notice Parties have twenty calendar days after receipt of this
Declaration to object to the Proposed Transfer described herein. If the Debtors or any of the other
Notice Parties file an objection, such Proposed Transfer will remain ineffective unless such
objection is withdrawn or such transaction is approved by a final and non-appealable order of the
Court. If the Debtors and the other Notice Parties do not object within such twenty-day period,
then after expiration of such period the Proposed Transfer may proceed solely as set forth in this
Declaration.
Any further transactions contemplated by the undersigned party that may result in the
undersigned party selling, trading, or otherwise transferring Beneficial Ownership of additional
shares of Common Stock will each require an additional notice filed with the Court to be served
in the same manner as this Declaration.
Pursuant to 28 U.S.C. § 1746, under penalties of perjury, the undersigned party hereby
declares that he or she has examined this Declaration and accompanying attachments (if any), and,
to the best of his or her knowledge and belief, this Declaration and any attachments hereto are true,
correct, and complete.
Respectfully submitted,
(Name of Declarant)
By:
________________________________
Name: _____________________________
Address: ___________________________
___________________________________
Telephone: _________________________
Facsimile: __________________________
Dated: _______________, 2024
_______________, __________
(City) (State)
3
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 85 of 97
Exhibit 1D
Declaration of Status as a 50-Percent Shareholder
Case 24-11217-BLS Doc 14 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. ) (Joint Administration Requested)
)
DECLARATION OF STATUS AS A 50-PERCENT SHAREHOLDER
The undersigned party is/has become a 50-Percent Shareholder2 with respect to one or more
shares of the existing classes of common stock or any Beneficial Ownership therein (any such
record or Beneficial Ownership of common stock, collectively, the “Common Stock”) of Vyaire
Holding Company. Vyaire Holding Company is a debtor and debtor in possession in Case No. 24-
11217 (___) pending in the United States Bankruptcy Court for the District of Delaware
(the “Court”).
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
For purposes of this Declaration: (i) a “50-Percent Shareholder” is any person or entity that, at any time since
December 31, 2020, has owned Beneficial Ownership of 50 percent or more of the Common Stock (determined
in accordance with section 382(g)(4)(D) of the IRC and the applicable Treasury Regulations thereunder); and
(ii) “Beneficial Ownership” will be determined in accordance with the applicable rules of sections 382 and 383 of
the Internal Revenue Code of 1986, 26 U.S.C. §§ 1–9834 as amended (the “IRC”), and the Treasury Regulations
thereunder (other than Treasury Regulations section 1.382-2T(h)(2)(i)(A)) and includes direct, indirect, and
constructive ownership (e.g., (1) a holding company would be considered to beneficially own all equity securities
owned by its subsidiaries, (2) a partner in a partnership would be considered to beneficially own its proportionate
share of any equity securities owned by such partnership, (3) an individual and such individual’s family members
may be treated as one individual, (4) persons and entities acting in concert to make a coordinated acquisition of
equity securities may be treated as a single entity, and (5) a holder would be considered to beneficially own equity
securities that such holder has an Option (as defined herein) to acquire); and (iii) an “Option” to acquire stock
includes all interests described in Treasury Regulations section 1.382-4(d)(9), including any contingent purchase
right, warrant, convertible debt, put, call, stock subject to risk of forfeiture, contract to acquire stock, or similar
interest, regardless of whether it is contingent or otherwise not currently exercisable.
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 87 of 97
As of ______, 2024, the undersigned party currently has Beneficial Ownership of
______ shares of Common Stock. The following table sets forth the date(s) on which the
undersigned party acquired Beneficial Ownership of such Common Stock:
Number of Shares Date Acquired
(Attach additional page or pages if necessary)
The last four digits of the taxpayer identification number of the undersigned party
are ______.
Pursuant to the Final Order (I) Approving Notification and Hearing Procedures for
Certain Transfers of and Declarations of Worthlessness with Respect to Common Stock and
(II) Granting Related Relief [Docket No. [●]] (the “Final Order”), this declaration
(this “Declaration”) is being filed with the Court and served upon the Notice Parties (as defined in
the Final Order).
Pursuant to 28 U.S.C. § 1746, under penalties of perjury, the undersigned party hereby
declares that he or she has examined this Declaration and accompanying attachments (if any), and,
to the best of his or her knowledge and belief, this Declaration and any attachments hereto are true,
correct, and complete.
2
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 88 of 97
Respectfully submitted,
(Name of 50-Percent Shareholder)
By:
________________________________
Name: _____________________________
Address: ___________________________
___________________________________
Telephone: _________________________
Facsimile: __________________________
Dated: _______________, 2024
_______________, __________
(City) (State)
3
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 89 of 97
Exhibit 1E
Declaration of Intent to Claim a Worthless Stock Deduction
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 90 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. ) (Joint Administration Requested)
)
DECLARATION OF INTENT TO CLAIM A WORTHLESS STOCK DEDUCTION2
The undersigned party hereby provides notice of its intention to claim a worthless stock
deduction (the “Worthless Stock Deduction”) with respect to one or more shares of the existing
classes of common stock or any Beneficial Ownership therein (any such record or Beneficial
Ownership of common stock, collectively, the “Common Stock”) of Vyaire Holding Company.
Vyaire Holding Company is a debtor and debtor in possession in Case No. 24-11217 (___) pending
in the United States Bankruptcy Court for the District of Delaware (the “Court”).
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
For purposes of this Declaration: (i) a “50-Percent Shareholder” is any person or entity that, at any time since
December 31, 2020, has had Beneficial Ownership of 50 percent or more of the Common Stock (determined in
accordance with IRC § 382(g)(4)(D) and the applicable Treasury Regulations); and (ii) “Beneficial Ownership”
will be determined in accordance with the applicable rules of sections 382 and 383 of the Internal Revenue Code
of 1986, 26 U.S.C. §§ 1–9834 as amended (the “IRC”), and the Treasury Regulations thereunder (other than
Treasury Regulations section 1.382-2T(h)(2)(i)(A)) and includes direct, indirect, and constructive ownership
(e.g., (1) a holding company would be considered to beneficially own all equity securities owned by its
subsidiaries, (2) a partner in a partnership would be considered to beneficially own its proportionate share of any
equity securities owned by such partnership, (3) an individual and such individual’s family members may be
treated as one individual, (4) persons and entities acting in concert to make a coordinated acquisition of equity
securities may be treated as a single entity, and (5) a holder would be considered to beneficially own equity
securities that such holder has an Option (as defined herein) to acquire); and (iii) an “Option” to acquire stock
includes all interests described in Treasury Regulations section 1.382-4(d)(9), including any contingent purchase
right, warrant, convertible debt, put, call, stock subject to risk of forfeiture, contract to acquire stock, or similar
interest, regardless of whether it is contingent or otherwise not currently exercisable.
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 91 of 97
If applicable, on ______, 2024, the undersigned party filed a Declaration of Status as a 50-
Percent Shareholder with the Court and served copies thereof as set forth therein.
The undersigned party currently has Beneficial Ownership of ______ shares of Common
Stock.
Pursuant to the Worthless Stock Deduction, the undersigned party proposes to declare
that______ shares of Common Stock became worthless during the tax year ending ______.
The last four digits of the taxpayer identification number of the undersigned party
are ______.
Pursuant to the Final Order (I) Approving Notification and Hearing Procedures for
Certain Transfers of and Declarations of Worthlessness with Respect to Common Stock and
(II) Granting Related Relief [Docket No. ______] (the “Final Order”), this declaration
(this “Declaration”) is being filed with the Court and served upon the Notice Parties (as defined in
the Final Order).
At the election of the undersigned party, the Declaration to be filed with this Court (but not
the Declaration that is served upon the Notice Parties) may be redacted to exclude the undersigned
party’s taxpayer identification number and the amount of Common Stock that the undersigned
party beneficially owns.
Pursuant to the Final Order, the undersigned party acknowledges that the Debtors and the
other Notice Parties have twenty calendar days after receipt of this Declaration to object to the
Worthless Stock Deduction described herein. If the Debtors or any of the other Notice Parties file
an objection, such Worthless Stock Deduction will not be effective unless such objection is
withdrawn or such action is approved by a final and non-appealable order of the Court. If the
Debtors and the other Notice Parties do not object within such twenty-day period, then after
2
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 92 of 97
expiration of such period the Worthless Stock Deduction may proceed solely as set forth in this
Declaration.
Any further claims of worthlessness contemplated by the undersigned party will each
require an additional notice filed with the Court to be served in the same manner as this Declaration
and are subject to an additional twenty-day waiting period.
Pursuant to 28 U.S.C. § 1746, under penalties of perjury, the undersigned party hereby
declares that he or she has examined this Declaration and accompanying attachments (if any), and,
to the best of his or her knowledge and belief, this Declaration and any attachments hereto are true,
correct, and complete.
Respectfully submitted,
(Name of Declarant)
By:
________________________________
Name: _____________________________
Address: ___________________________
___________________________________
Telephone: _________________________
Facsimile: __________________________
Dated: _______________, 2024
_______________, __________
(City) (State)
3
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 93 of 97
Exhibit 1F
Notice of Final Order
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 94 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. ) (Joint Administration Requested)
)
NOTICE OF FINAL ORDER (I) APPROVING NOTIFICATION
AND HEARING PROCEDURES FOR CERTAIN TRANSFERS OF
AND DECLARATIONS OF WORTHLESSNESS WITH RESPECT
TO COMMON STOCK AND (II) GRANTING RELATED RELIEF
TO: ALL ENTITIES (AS DEFINED BY SECTION 101(15) OF THE BANKRUPTCY
CODE) THAT MAY HOLD BENEFICIAL OWNERSHIP OF THE EXISTING CLASSES
OF COMMON STOCK (THE “COMMON STOCK”) OF VYAIRE HOLDING
COMPANY:
PLEASE TAKE NOTICE that on June 9, 2024, (the “Petition Date”), the
above-captioned debtors and debtors in possession (collectively, the “Debtors”), filed petitions
with the United States Bankruptcy Court for the District of Delaware (the “Court”) under
chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”). Subject to certain
exceptions, section 362 of the Bankruptcy Code operates as a stay of any act to obtain possession
of property of or from the Debtors’ estates or to exercise control over property of or from the
Debtors’ estates.
PLEASE TAKE FURTHER NOTICE that on the Petition Date, the Debtors filed the
Motion of Debtors for Entry of Interim and Final Orders (I) Approving Notification and Hearing
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.
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 95 of 97
Procedures for Certain Transfers of and Declarations of Worthlessness with Respect to Common
Stock and (II) Granting Related Relief [Docket No. [●]] (the “Motion”).
PLEASE TAKE FURTHER NOTICE that on [●][●], 2024, the Court entered the Final
Order (I) Approving Notification and Hearing Procedures for Certain Transfers of and
Declarations of Worthlessness with Respect to Common Stock and (II) Granting Related Relief
[Docket No. [●]] (the “Final Order”) approving procedures for certain transfers of Common Stock,
set forth in Exhibit 1 attached to the Final Order (the “Procedures”).2
PLEASE TAKE FURTHER NOTICE that, pursuant to the Final Order, a Substantial
Shareholder may not consummate any purchase, sale, or other transfer of Common Stock, or
Beneficial Ownership of Common Stock in violation of the Procedures, and any such transaction
in violation of the Procedures shall be null and void ab initio.
PLEASE TAKE FURTHER NOTICE that, pursuant to the Final Order, the Procedures
shall apply to the holding and transfers of Common Stock, or any Beneficial Ownership therein by
a Substantial Shareholder or someone who may become a Substantial Shareholder.
PLEASE TAKE FURTHER NOTICE that pursuant to the Interim Order, upon the
request of any person or entity, the proposed notice, claims, and solicitation agent for the Debtors,
Omni Agent Solutions, Inc., will provide a copy of the Interim Order and a form of each of the
declarations required to be filed by the Procedures in a reasonable period of time. Such
declarations are also available via PACER on the Court’s website at https://ecf.deb.uscourts.gov/
for a fee, or free of charge by accessing the Debtors’ restructuring website at
https://omniagentsolutions.com/Vyaire.
2
Capitalized terms used but not otherwise defined herein have the meanings ascribed to them in the Final Order or
the Motion, as applicable.
2
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 96 of 97
PLEASE TAKE FURTHER NOTICE that, pursuant to the Final Order, failure to follow
the procedures set forth in the Final Order shall constitute a violation of, among other things, the
automatic stay provisions of section 362 of the Bankruptcy Code.
PLEASE TAKE FURTHER NOTICE that nothing in the Final Order shall preclude any
person desirous of acquiring any Common Stock from requesting relief from the Final Order from
this Court, subject to the Debtors’ and the other Notice Parties’ rights to oppose such relief.
PLEASE TAKE FURTHER NOTICE that other than to the extent that the Final Order
expressly conditions or restricts trading in Common Stock, nothing in the Final Order or in the
Motion shall, or shall be deemed to, prejudice, impair, or otherwise alter or affect the rights of any
holders of Common Stock, including in connection with the treatment of any such stock under any
chapter 11 plan or any applicable bankruptcy court order.
PLEASE TAKE FURTHER NOTICE that any prohibited purchase, sale, other transfer
of Common Stock, Beneficial Ownership thereof, or option with respect thereto in violation of the
Final Order is prohibited and shall be null and void ab initio and may be subject to additional
sanctions as this court may determine.
PLEASE TAKE FURTHER NOTICE that the requirements set forth in the Final Order
are in addition to the requirements of applicable law and do not excuse compliance therewith.
3
Case 24-11217-BLS Doc 14 Filed 06/10/24 Page 97 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
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