Procedures for Transfers of and Declarations of Worthlessness
- Date
- 2024-06-11
Summary
Exhibit 1 to a motion in In re Vyaire Medical, Inc., et al., Case No. 24-11217 (BLS), in the U.S. Bankruptcy Court for the District of Delaware, filed June 11, 2024 as Doc 91-1 and running 32 pages. It sets out procedures for transfers of, and declarations of worthlessness with respect to, Beneficial Ownership of Common Stock. A Substantial Shareholder, defined as holding at least 152,436 shares, must file a declaration of status, and proposed transfers require advance declarations to which the Debtors and Notice Parties have ten calendar days to object. A 50-Percent Shareholder must file a declaration before claiming a worthless stock deduction. The procedures also set notice requirements and attach forms including Exhibit 1A, Exhibit 1B, Exhibit 1C, Exhibit 1D, Exhibit 1E and Exhibit 1F, ending with a draft notice signed by proposed co-counsel to the Debtors.
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Case 24-11217-BLS Doc 91-1 Filed 06/11/24 Page 1 of 32
Exhibit 1
Procedures for Transfers of and Declarations of Worthlessness
with Respect to Beneficial Ownership of Common Stock
Case 24-11217-BLS Doc 91-1 Filed 06/11/24 Page 2 of 32
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 91-1 Filed 06/11/24 Page 3 of 32
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 91-1 Filed 06/11/24 Page 4 of 32
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 Shareholder 2
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.
a. 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 91-1 Filed 06/11/24 Page 5 of 32
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 91-1 Filed 06/11/24 Page 6 of 32
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 91-1 Filed 06/11/24 Page 7 of 32
Exhibit 1A
Declaration of Status as a Substantial Shareholder
Case 24-11217-BLS Doc 91-1 Filed 06/11/24 Page 8 of 32
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)
)
DECLARATION OF STATUS AS A SUBSTANTIAL SHAREHOLDER 2
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 (BLS)
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 91-1 Filed 06/11/24 Page 9 of 32
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 91-1 Filed 06/11/24 Page 10 of 32
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 91-1 Filed 06/11/24 Page 11 of 32
Exhibit 1B
Declaration of Intent to Accumulate Common Stock
Case 24-11217-BLS Doc 91-1 Filed 06/11/24 Page 12 of 32
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)
)
DECLARATION OF INTENT TO
ACCUMULATE COMMON STOCK 2
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 (BLS) 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 91-1 Filed 06/11/24 Page 13 of 32
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 91-1 Filed 06/11/24 Page 14 of 32
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 91-1 Filed 06/11/24 Page 15 of 32
Exhibit 1C
Declaration of Intent to Transfer Common Stock
Case 24-11217-BLS Doc 91-1 Filed 06/11/24 Page 16 of 32
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)
)
DECLARATION OF INTENT TO
TRANSFER COMMON STOCK 2
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 (BLS) 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 91-1 Filed 06/11/24 Page 17 of 32
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 91-1 Filed 06/11/24 Page 18 of 32
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 91-1 Filed 06/11/24 Page 19 of 32
Exhibit 1D
Declaration of Status as a 50-Percent Shareholder
Case 24-11217-BLS Doc 91-1 Filed 06/11/24 Page 20 of 32
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)
)
DECLARATION OF STATUS AS A 50-PERCENT SHAREHOLDER
The undersigned party is/has become a 50-Percent Shareholder 2 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 (BLS) 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 91-1 Filed 06/11/24 Page 21 of 32
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 91-1 Filed 06/11/24 Page 22 of 32
Respectfully submitted,
(Name of Declarant)
By:
________________________________
Name: _____________________________
Address: ___________________________
___________________________________
Telephone: _________________________
Facsimile: __________________________
Dated: _______________, 2024
_______________, __________
(City) (State)
3
Case 24-11217-BLS Doc 91-1 Filed 06/11/24 Page 23 of 32
Exhibit 1E
Declaration of Intent to Claim a Worthless Stock Deduction
Case 24-11217-BLS Doc 91-1 Filed 06/11/24 Page 24 of 32
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)
)
DECLARATION OF INTENT TO CLAIM A WORTHLESS STOCK DEDUCTION 2
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 (BLS)
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 91-1 Filed 06/11/24 Page 25 of 32
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 91-1 Filed 06/11/24 Page 26 of 32
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 91-1 Filed 06/11/24 Page 27 of 32
Exhibit 1F
Notice of Interim Order
Case 24-11217-BLS Doc 91-1 Filed 06/11/24 Page 28 of 32
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)
)
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 91-1 Filed 06/11/24 Page 29 of 32
Procedures for Certain Transfers of and Declarations of Worthlessness with Respect to Common
Stock and (II) Granting Related Relief [Docket No. 14] (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 91-1 Filed 06/11/24 Page 30 of 32
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 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),
3
Case 24-11217-BLS Doc 91-1 Filed 06/11/24 Page 31 of 32
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.
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.
4
Case 24-11217-BLS Doc 91-1 Filed 06/11/24 Page 32 of 32
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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