Final Order (I) Approving Notification
- Date
- 2024-07-09
Summary
A final order entered July 9, 2024 by United States Bankruptcy Judge Brendan L. Shannon 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 as Doc 226. The order grants on a final basis the debtors' motion and approves notification and hearing procedures for certain transfers of, and declarations of worthlessness with respect to, common stock of Debtor Vyaire Holding Company. It provides that transfers or declarations in violation of the procedures are null and void ab initio, requiring remedial actions or an amended tax return. It also directs the debtors to post the procedures to the Omni Agent Solutions, Inc. case website and states that the order is subject to any DIP Order. The order is five pages.
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Case 24-11217-BLS Doc 226 Filed 07/09/24 Page 1 of 5
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 Nos. 14, 91
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, but
not directing, 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
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’ 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 226 Filed 07/09/24 Page 2 of 5
of common stock, (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 this Court having
determined that the legal and factual bases set forth in the Motion 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.
2. The Procedures, as set forth in Exhibit 1 attached to this Final Order are hereby
approved on a final basis.
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 226 Filed 07/09/24 Page 3 of 5
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, in consultation with the official committee of unsecured creditors (the “Committee”) and
the Ad Hoc Group, 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. Nothing in this Final 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.
7. The Debtors may retroactively or prospectively, in writing and in consultation with
the Committee and the Ad Hoc Group, waive any and all restrictions, stays and notification
procedures set forth in the Procedures.
8. 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
Case 24-11217-BLS Doc 226 Filed 07/09/24 Page 4 of 5
being reasonably calculated to provide notice to all parties that may be affected by the Procedures,
whether known or unknown.
9. Nothing in the Motion or this Final 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 Final Order
constitutes Court approval of the Restructuring Support Agreement.
10. 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.
11. 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.
12. 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.
13. The requirements set forth in this Final Order are in addition to the requirements of
applicable law and do not excuse compliance therewith.
14. 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,
Case 24-11217-BLS Doc 226 Filed 07/09/24 Page 5 of 5
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;
(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.
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.
Dated: July 9th, 2024 BRENDAN L. SHANNON
Wilmington, Delaware UNITED STATES BANKRUPTCY JUDGE
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