Interim Order (I) Approving Notification And
Summary
An interim order entered June 11, 2024 as Doc 91 in In re Vyaire Medical, Inc., et al., Case No. 24-11217 (BLS), in the U.S. Bankruptcy Court for the District of Delaware, signed by United States Bankruptcy Judge Brendan L. Shannon. It grants on an interim basis the Debtors' motion [Docket No. 14] approving notification and hearing procedures for transfers of, and declarations of worthlessness with respect to, Debtor Vyaire Holding Company's common stock. The order declares any postpetition transfer or declaration in violation of the procedures null and void ab initio and requires remedial actions or amended tax returns. It sets the final hearing for July 9, 2024 at 10:00 a.m., with objections due July 2, 2024, and requires the Debtors to serve and publish a Notice of Interim Order within 3 days.
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Case 24-11217-BLS Doc 91 Filed 06/11/24 Page 1 of 7
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 (BLS)
)
Debtors. ) (Jointly Administered)
) Re: Docket No. 14
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 Ownership 3 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 91 Filed 06/11/24 Page 2 of 7
(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 91 Filed 06/11/24 Page 3 of 7
2. The final hearing (the “Final Hearing”) on the Motion shall be held on July 9, 2024,
at 10:00 a.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 July 2, 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 91 Filed 06/11/24 Page 4 of 7
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 this Interim Order or the exhibits thereto shall authorize any filer that is
not an individual to redact the name, date acquired, number of shares held, or last four digits of
TIN.
4
Case 24-11217-BLS Doc 91 Filed 06/11/24 Page 5 of 7
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, provided, however, that nothing in the Motion or this Interim
Order constitutes Court approval of the Restructuring Support Agreement.
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. The Debtors may retroactively or prospectively, in writing, waive any and all
restrictions, stays and notification procedures set forth in the Procedures.
11. 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.
12. 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.
5
Case 24-11217-BLS Doc 91 Filed 06/11/24 Page 6 of 7
13. 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.
14. 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.
15. 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.
6
Case 24-11217-BLS Doc 91 Filed 06/11/24 Page 7 of 7
16. The Debtors have demonstrated that the requested relief is “necessary to avoid
immediate and irreparable harm,” as contemplated by Bankruptcy Rule 6003.
17. The contents of the Motion satisfy the requirements of Bankruptcy Rule 6003(b).
18. 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.
19. The Debtors are authorized to take all actions necessary to effectuate the relief
granted in this Interim Order in accordance with the Motion.
20. This Court retains jurisdiction with respect to all matters arising from or related to
the implementation, interpretation, and enforcement of this Interim Order.
Dated: June 11th, 2024 BRENDAN L. SHANNON
Wilmington, Delaware UNITED STATES BANKRUPTCY JUDGE
7
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