Vyaire - COC - Bid Procedures Motion Order Final
- Date
- 2024-07-09
Summary
Doc 233-2, filed July 9, 2024 in In re Vyaire Medical, Inc., et al., Case No. 24-11217 (BLS), in the U.S. Bankruptcy Court for the District of Delaware, is Exhibit 2, a blackline of the proposed bidding procedures order against the version filed at Docket No. 16. The order would approve bidding procedures for the sale of substantially all of the Debtors' assets, authorize a stalking horse agreement with bid protections, and schedule an auction and sale hearing. The marked changes include a stalking horse selection no later than July 11, 2024 and a $250,000 cap on expense reimbursement, with the break-up fee and reimbursement together not exceeding $850,000. It sets an IOI deadline of July 1, 2024. The document closes with a form successful bidder notice signed by Cole Schotz P.C. and Kirkland & Ellis LLP as proposed co-counsel to the Debtors.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
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Case 24-11217-BLS Doc 233-2 Filed 07/09/24 Page 1 of 71
Exhibit 2
Blackline
Case 24-11217-BLS Doc 233-2 Filed 07/09/24 Page 2 of 71
As Filed at Docket No. 16
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 Administerationed
Requested)
)
) Re: Docket No. __16
ORDER (I) APPROVING BIDDING PROCEDURES
IN CONNECTION WITH THE SALE OF SUBSTANTIALLYALL ALL
OF THE DEBTORS’ ASSETS, (II) AUTHORIZING THE DEBTORS
TO ENTER INTO A STALKING HORSE AGREEMENT AND
PROVIDE BID PROTECTIONS, (III) APPROVING THE FORM AND
MANNER OF NOTICE THEREOF, (IV) SCHEDULING AN AUCTION AND
SALE HEARING, (V) APPROVING PROCEDURES FOR THE ASSUMPTION
AND ASSIGNMENT OF CONTRACTS, (VI) APPROVING THE SALE OF THE
DEBTORS’ ASSETS FREE AND CLEAR, AND (VII) GRANTING RELATED RELIEF
Upon the Motion of the Debtors for Entry of an Order (I) Approving Bidding Procedures
in Connection with the Sale of Substantially All of the Debtors’ Assets, (II) Authorizing the
Debtors to Enter Into a Stalking Horse Agreement and Provide Bid Protections, (III) Approving
the Form and Manner of Notice Thereof, (IV) Scheduling an Auction and Sale Hearing,
(V) Approving Procedures for the Assumption and Assignment of Contracts, (VI) Approving the
Sale of the Debtors’ Assets Free and Clear, and (VII) Granting Related Relief [Docket No. 16]
(the “Motion”)2 filed by the debtors and debtors in possession (collectively, the “Debtors”) in
1
The last four digits of Debtor Vyaire Medical, Inc.’s federal tax identification number are 6495. A complete list
of each of the Debtors in these chapter 11 cases and each such Debtor’s federal tax identification number may
be obtained on the website of the Debtors’ proposed claims and noticing agent at
https://omniagentsolutions.com/Vyaire. The location of Debtor Vyaire Medical, Inc.’s principal place of
business and the Debtors’ service address in these chapter 11 cases is 26125 North Riverwoods Boulevard,
Mettawa, Illinois, USA 60045.
2
Capitalized terms used but not defined herein shall have the respective meanings ascribed to such terms in the
Motion or in the Bidding Procedures, as applicable.
Case 24-11217-BLS Doc 233-2 Filed 07/09/24 Page 3 of 71
the above-captioned debtors chapter 11 cases (the “Chapter 11 Cases”); this Court having
reviewed the Motion, the First Day Declaration, the Schlappig Declaration, [Docket No. 158],
the Braley Declaration [Docket No. 157] and having considered the statements of counsel and
the evidence adduced with respect to the Motion at a hearing before the Court on [], 2024(if
any) to consider certain of the relief requested in the Motion (the “Bidding Procedures
Hearing”); and after due deliberation, this Court having determined that the legal and factual
bases set forth in the Motion establish just cause for the relief granted herein; and it appearing
that the relief requested in the Motion is in the best interests of the Debtors, their estates, and their
creditors, and the Debtors having demonstrated good, sufficient, and sound business justifications
for the relief granted herein;
IT IS HEREBY FOUND AND DETERMINED THAT:3
A. Jurisdiction and Venue. The United States District Court for the District
of Delaware has jurisdiction over this matter pursuant to 28 U.S.C. §1334, which was referred to
the United States Bankruptcy Court for the District of Delaware (the “Court”) under
28 U.S.C. § 157 and the Amended Standing Order of Reference from the United States District
Court for the District of Delaware, dated February 29, 2012. The Debtors confirm their consent,
pursuant to rule 9013-1(f) of the Local Rules of Bankruptcy Practice and Procedure of the United
States Bankruptcy Court for the District of Delaware (the “Local Rules”), to the entry of a final
order by the Court in connection with this motion to the extent that it is later determined that the
Court, absent consent of the parties, cannot enter final orders or judgments in connection
3
The findings and conclusions set forth herein constitute the Court’s findings of fact and conclusions of law
pursuant to Bankruptcy Rule 7052, made applicable to this proceeding pursuant to Bankruptcy Rule 9014. To
the extent any of the following findings of fact constitute conclusions of law, they are adopted as such. To the
extent any of the following conclusions of law constitute findings of fact, they are adopted as such.
2
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herewith consistent with Article III of the United States Constitution. Venue is proper before
this Court pursuant to 28 U.S.C. §§ 1408 and 1409.
B. Statutory and Legal Predicates. The statutory and legal predicates for
the relief requested in the Motion are sections 105(a), 363, 365, 503, and 507 of the Bankruptcy
Code, Bankruptcy Rules 2002, 6004, 6006, 9007, 9008, and 9014, and Local Rules 2002-1,
6004-1, and 9006-1.
C. Good and sufficient notice of the Motion, the Bidding Procedures, and the
relief sought in the Motion has been given under the circumstances, and no other or further
notice is required except as set forth herein. A reasonable opportunity to object or be heard
regarding the relief provided herein has been afforded to parties in interest.
D. Bidding Procedures. The Debtors have articulated good and
sufficient business reasons for the Court to approve the bidding procedures attached hereto as
Exhibit 1 (the “Bidding Procedures”). The Bidding Procedures are fair, reasonable, and
appropriate and are designed to maximize the value of the proceeds of one or more sales (each,
a “Sale Transaction”) of some, all, or substantially all of the Debtors’ assets (the “Assets”).
The Bidding Procedures were negotiated in good faith and at arm’s length and are reasonably
designed to promote a competitive and robust bidding process to generate the greatest level of
interest in the Debtors’ Assets. The proposed process for potentially designating a Stalking
Horse Bidder or Bidders was fair and appropriate under the circumstances and in the best
interests of the Debtors’ estates. The Bidding Procedures comply with the requirements of
Local Rule 6004-1(c).
E. The Debtors have demonstrated a compelling and sound business
justification for the Court to enter this Order and thereby: (a) approve the Bidding Procedures in
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connection with the sale of some or substantially all of the Assets, (b) approve the form and
manner of notice thereof as described in paragraph 7 herein (including the Sale Notice),
(c) schedule an Auction and Sale Hearing, (d) approve procedures for the assumption and
assignment of contracts and leases, and (e) grant related relief as set forth herein. Such
compelling and sound business justification, which was set forth in the Motion, the Schlappig
Declaration, the Braley Declaration, and the First Day Declaration, are incorporated herein by
reference and, among other things, form the basis for the findings of fact and conclusions of law
set forth herein.
F. Sale Notice. The sale notice, the form of which is attached as Exhibit 2
(the “Sale Notice”), is appropriate and reasonably calculated to provide all interested parties with
timely and proper notice of the Auction, the Sale Hearing (as defined in the Bidding Procedures),
the Bidding Procedures, the Sale Transaction(s), and all relevant and important dates and
objection deadlines with respect to the foregoing, and no other or further notice of the Sale
Hearing, the Sale Transaction(s), or the Auction shall be required.
G. Assumption and Assignment Provisions. The Debtors have articulated
good and sufficient business reasons for the Court to approve the assumption and assignment
procedures set forth herein, in the Bidding Procedures (the “Assumption and Assignment
Procedures”) and the Potentially Assumed and Assigned Contracts Notice attached hereto as
Exhibit 3 (the “Potentially Assumed and Assigned Contracts Notice”), which are fair,
reasonable, and appropriate. The Assumption and Assignment Procedures comply with the
provisions of section 365 of the Bankruptcy Code and Bankruptcy Rule 6006.
H. Potentially Assumed and Assigned Contracts Notice. The Potentially
Assumed and Assigned Contracts Notice, the form of which is attached hereto as Exhibit 3, is
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appropriate and reasonably calculated to provide all interested parties with timely and proper
notice of the Assumption and Assignment Procedures, as well as any and all objection deadlines
related thereto, and no other or further notice shall be required for the Motion and the procedures
described therein, except as expressly required herein.
I. The Successful Bidder Notice, substantially in the form attached hereto as
Exhibit 4, is reasonably calculated to provide interested parties with timely and proper notice of
the proposed Sale Transaction(s), including, without limitation: (a) the Successful Bidder, (b)
the Back-Up Bidder, if applicable, (c) the proposed Bid Protections provided to the Successful
Bidder, if any, (d) the key terms of the proposed Sale Transaction(s), and (e) the date, time, and
place of the Sale Hearing.
J. Notice. Notice of the Motion, the proposed Bidding Procedures, the
proposed process for designation of a Stalking Horse Bidder or Bidders, and the Bidding
Procedures Hearing was (i) appropriate and reasonably calculated to provide all interested parties
with timely and proper notice, (ii) in compliance with all applicable requirements of the
Bankruptcy Code, the Bankruptcy Rules, and the Local Rules and (iii) adequate and sufficient under
the circumstances of the Debtors’ Chapter 11 Cases, such that no other or further notice need be
provided except as set forth in the Bidding Procedures and the Assumption and Assignment
Procedures. A reasonable opportunity to object and be heard regarding the relief granted herein
has been afforded to all parties in interest.
K. The legal and factual bases set forth in the Motion establish just cause for
the relief granted herein. Entry of this Order is in the best interests of the Debtors and their
estates, creditors, interest holders, and all other parties in interest.
5
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L. The Bidding Procedures comply with the requirements set forth by Local
Rule 6004-(1)(c).
IT IS HEREBY ORDERED THAT:
1. The Motion is GRANTED as set forth herein.
2. All objections to the relief granted in this order (the “Order”) that have not
been withdrawn, waived, or settled, and all reservations of rights included therein are hereby
overruled and denied on the merits with prejudice.
3. Potential Stalking Horse Bidder Designation. Pursuant to the Bidding
Procedures, the Debtors are authorized, subject to the consent of the Required DIP Lenders
(as defined in the DIP Order, and which consent shall not be unreasonably withheld), and in
consultation with the official committee of unsecured creditors (the “Committee”), but not
directed to, select one or more Qualified Bidders that submit a Qualified Bid for all or any
portion of the Assets to act as a Stalking Horse Bidder and enter into a Stalking Horse APA with
each such Stalking Horse Bidder no later than July 11, 2024. The Debtors are further
authorized, sSubject to the consent of the Required DIP Lenders (which consent shall not be
unreasonably withheld), and in consultation with the Committee, the Debtors are further
authorized, but not directed, to offer the Bid Protections to such Stalking Horse Bidder(s)
provided that the total Bid Protections offered to anyeach Stalking Horse Bidder shall not exceed
the greater of: (a) a break-up fee (a “Break-Up Fee”) of three percent (3%) of the total cash
consideration payable under such Stalking Horse APA, if any, which Break-Up Fee would be
inclusive of any expenses reimbursement, andincurred by such Stalking Horse Bidder, and (b) a
Break-Up Fee of three percent (3%) of the total cash consideration payable under such Stalking
Horse APA, if any, plus reasonable and documented expenses (an “Expense Reimbursement,”
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and together with any Break-Up Fee, the “Bid Protections”), which Expense Reimbursement
shall be no greater than $250,000; provided that, the sum of the Break-Up Fee and the Expense
Reimbursement in this clause (b) shall not exceed $850,000 in the aggregate; provided further,
that any and all Bid Protections shall be subject to the objection process in paragraph 34 below.;
provided further, that the Debtors shall be entitled to offer Bid Protections to no more than two
(2) Stalking Horse Bidders. The Stalking Horse Bid and Stalking Horse APA, if any, shall be
subject to higher or otherwise better offers consistent with the Bidding Procedures, and no Bid
Protections shall be offered on account of any portion of the purchase price of such Stalking
Horse Bid that is a credit bid, assumption of liabilities, or non-cash (or cash-equivalent)
consideration. Further, no Bid Protections shall be provided to an insider or an affiliate of the
Debtors.
4. If the Debtors, consistent with the Bidding Procedures and subject to the
consent of the Required DIP Lenders (which consent shall not be unreasonably withheld), and in
consultation with the Committee, determine to offer Bid Protections to any Stalking Horse
Bidder, the Debtors shall file with the Court and serve a notice (a “Stalking Horse Notice”)
seeking approval of the designation and the Bid Protections which shall include: (a) the identity
of the Stalking Horse Bidder; (b) the amount of the Stalking Horse Bid; (c) a copy of the
Stalking Horse APA; (d) the proposed Bid Protections to be provided to the Stalking Horse
Bidder; and (e) a declaration in support of the proposed Bid Protections, which includes whether
the Stalking Horse Bidder has any connection with the Debtors other than that which arises from
the Stalking Horse Bid. For the avoidance of doubt, nothing in this Order is shifting the Debtors’
burden of proof that the Bid Protections are actually necessary to preserve the value of the estates
pursuant to section 503(b) of the Bankruptcy Code. Nothing in this Order shall be deemed to
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award any Bid Protections (i) related to a credit bid or (ii) in favor of an insider of or affiliate of
the Debtors. Any objection to (i) the Bid Protections set forth in a Stalking Horse Notice or
(ii) the designation of the Stalking Horse (a “Stalking Horse Objection”), shall be filed no later
than four (4) business days after the filing of the Stalking Horse Notice at 4:00 p.m.,
(prevailing Eastern Time). If a timely Stalking Horse Objection is filed, the Debtors are
authorized to seek an expedited hearing with respect to the Stalking Horse Objection on not less
than three (3) calendar days’ notice. Absent any timely Stalking Horse Objection, the Court
may enter an order approving the Bid Protections set forth in the Stalking Horse Notice and the
designation of the Stalking Horse are approved.
5. IOI Deadline. July 1, 2024, at 4:00 p.m., (prevailing Eastern Time),
is the deadline by which all IOIs for a Sale Transaction must be submitted in accordance with the
terms of the Bidding Procedures. The Debtors may extend such deadline in accordance with the
Bidding Procedures subject to the consent of the Required DIP Lenders (which consent shall not
be unreasonably withheld) and without any further motion in this Court; provided that the
Debtors shall file a notice with the Court if the Debtors decide to extend the deadline by which
IOIs for a Sale Transaction must be submitted; provided further that if no IOIs (individually or in
the aggregate), in the good faith estimate of the Debtors and their advisors, with the consent of
the Required DIP Lenders , are likely to lead to Bids that (individually or in the aggregate) meet
the Minimum Bid Requirement as set forth in the Bidding Procedures and herein, then the
Debtors shall terminate the sale process and cancel the Auction.
6. Bid Deadline. July 22, 2024, at 5:00 p.m., (prevailing Eastern Time),
is the deadline by which all Bids for a Sale Transaction (as well as the Good Faith Deposit and
other documentation required under the Bidding Procedures for a Bid to be considered a
8
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Qualified Bid) must be submitted in accordance with the terms of the Bidding Procedures. For
the avoidance of doubt, a Bid or series of Bids shall not constitute a “Qualified Bid” unless such
Bid(s) (a) meets the Minimum Bid Requirement and (b) contemplates that the aggregate cash
sale proceeds of such Bid(s) shall be indefeasibly paid to the DIP Lenders immediately upon the
closing of the Sale Transaction(s) subject to deductions for wind-down costs and expenses
required to be paid pursuant to the DIP Orders and the restructuring support agreement
(the “RSA”) (which described in section D.4.4 of the Bidding Procedures (such deducted
amounts which shall be paid to the Debtors). The Debtors may extend such deadline in
accordance with the Bidding Procedures subject to the consent of the Required DIP Lenders
(which consent shall not be unreasonably withheld) and without any further motion in this Court;
provided that the Debtors shall file a notice with the Court if the Debtors decide, with the
consent of the Required DIP Lenders (which consent shall not be unreasonably withheld), to
extend the deadline by which Bids for a Sale Transaction must be submitted; provided further
that if no Bids, individually or in the aggregate, meet the Minimum Bid Requirement as set forth
in the Bidding Procedures and herein, then the Debtors shall terminate the sale process and
cancel the Auction.
7. Minimum Bid Requirement. Each Bid for all or substantially all of the
Debtors’ Assets must consist of or include cash consideration to be paid at the closing of the
transactions, which such amount would be payable to the DIP Lenders, contemplated by the
Modified APA in an amount equal to at least an amount that would satisfy the Minimum Bid
4
For the avoidance of doubt, payment of the aggregate cash sale proceeds to the DIP Lenders shall be subject to
the Committee’s challenge rights set forth in paragraph 12 of the Final Order (I) Authorizing the Debtors to
Obtain Postpetition Financing, (II) Authorizing the Debtors to Use Cash Collateral, (III) Granting Liens and
Providing Superpriority Administrative Expense Claims, (IV) Granting Adequate Protection, (V) Modifying
Automatic Stay, and (VI) Granting Related Relief (the “Final DIP Order”).
9
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Requirement (as defined below); provided, however, that any Bid for less than substantially all of
the Debtors’ Assets will not be subject to any minimum bid amount threshold. Each Bid must
set forth the total purchase price for such Bid. Notwithstanding the foregoing and as further
described in the Bidding Procedures, if the aggregate cash consideration for the Debtors’ Assets,
whether consisting of one Bid or a series of Bids for some, all, or substantially all of the Debtors’
Assets that would be payable to the DIP Lenders does not meet or exceed $140,000,000
(the “Minimum Bid Requirement”), then the Debtors shall terminate the sale process and cancel
the Auction.
8. Credit Bidding. Nothing in this Order shall impact or limit the rights of
the Prepetition Agents, DIP Lenders, and DIP Agent, pursuant to section 363(k) of the
Bankruptcy Code, to credit bid all or any portion of the Obligations, under (and as defined in)
each of the Prepetition Credit Agreements and the DIP Credit Agreement, as applicable, to
acquire the Assets (each dollar of such obligations that is credit bid shall be treated the same as a
dollar of cash); provided that the DIP Lenders, Prepetition Lenders, Prepetition Agents, and the
DIP Agent agree, solely in the event that the Company receives a Bid or series of Bids by the Bid
Deadline that is not less than the Minimum Bid Requirement, then the DIP Lenders and the DIP
Agent shall not credit bid for the Assets. Notwithstanding anything to the contrary herein,
nothing in these Bidding Procedures shall be considered as a waiver of any other party in interest
to object to, or seek to limit, the Credit Bid during the Challenge Period under section 363(k) of
the Bankruptcy Code; provided, however, that this reservation of rights is not intended to, and
does not, expand or limit the Challenge Period or the Challenge rights provided for under the
DIP Order.
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9. Auction. If at least two Qualified Bids (including any Bid by a Stalking
Horse Bidder) are received by the Bid Deadline with regard to any particular Asset when
combined with any other Qualified Bids that, in the aggregate, meet the Minimum Bid
Requirement, the Debtors will conduct an auction no later than July 24, 2024, at 10:00 a.m.,
(prevailing Eastern Time) in person at the office of Kirkland & Ellis LLP, 333 West Wolf
Point Plaza, Chicago, IL 60654 and/or via remote video at the Debtors’ election (the “Auction
Date”). If held, the Auction proceedings will be transcribed. In the event the Debtors determine
an Auction shall be held, the Debtors shall file notice on the docket and send written notice
(email sufficient) of the date, time, and place of the Auction to the Qualified Bidders no later
than one (1) business day before such Auction, and will post notice of the date, time, and place
of the Auction no later than one (1) business day before such Auction on their restructuring
website, www.omniagentsolutions.com/Vyaire (the “Case Website”). Only the following
parties, and their respective professionals and principals, and their respective representatives and
counsel, may attend the Auction: (i) the Debtors, (ii) the United States Trustee, (iii) advisors to
the Committee, (iv) any Qualified Bidder, (ivv) advisors to the DIP Lenders, (vvi) any creditors
that request access to the Auction within 48 hours prior to the date of the Auction, and (vii) any
other parties that the Debtors deem appropriate. Notwithstanding the foregoing, if no Qualified
Bids, individually or in the aggregate, meet the Minimum Bid Requirement, then the Debtors
shall terminate the sale process and cancel the Auction. For the avoidance of doubt, a Bid or
series of Bids shall not constitute a “Qualified Bid” unless such Bid(s) (a) meets the Minimum
Bid Requirement and (b) contemplates that the aggregate cash sale proceeds of such Bid(s) shall
be indefeasibly paid to the DIP Lenders immediately upon the closing of the Sale Transaction(s)
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subject to deductions for wind-down costs and expenses required to be paid pursuant to the DIP
Orders and the RSA (which such deducted amounts shall be paid to the Debtors).5
10. Each Qualified Bidder participating in the Auction will be required to
confirm in writing and on the record at the Auction that (a) it has not engaged in any collusion
with respect to the bidding or sale of any of the Debtors’ Assets or otherwise taken any other
action to prevent a transparent and competitive auction process, and (b) its Qualified Bid is a
good faith bona fide offer that it intends to consummate if selected as the Successful Bidder or
Back-Up Bidder.
11. Following the Auction, the Debtors will determine, with the consent of the
Required DIP Lenders, will determine which Qualified Bid is the highest or otherwise best
Bid(s) for the Assets or subsets thereof. No later than July 24, 2024, at 4:00 p.m., (prevailing
Eastern Time), or as soon as reasonably practicable following the Auction, the Debtors will
serve the Successful Bidder Notice, substantially in the form attached hereto as Exhibit 4, or
notice of cancellation, as applicable, (a) by overnight delivery service upon the applicable
contract or lease counterparties (the “Contract Counterparties”) at the address set forth in the
notice provision of the applicable contract (and their counsel, if known) and (b) by first class
mail, email, or fax upon the Notice Parties (as defined below). The Debtors shall file the
Successful Bidder Notice or notice of cancellation, as applicable, and the final form of proposed
order approving the Sale Transaction.
12. Good Faith Deposits. The Debtors may open one or more escrow
accounts to hold the Good Faith Deposits of all Qualified Bidders. The Debtors shall hold and
5
For the avoidance of doubt, payment of the aggregate cash sale proceeds to the DIP Lenders shall be subject to
the Committee’s challenge rights set forth in paragraph 12 of the Final DIP Order.
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return the Good Faith Deposits of Qualified Bidders in accordance with the Bidding Procedures.
If a Successful Bidder (or if the Sale Transaction is to be consummated with the applicable
Back-Up Bidder, then such Back-Up Bidder) fails to consummate the Sale Transaction because
of a breach or failure to perform on the part of such Bidder, then the Debtors and their estates
shall be entitled to retain the Good Faith Deposit of such Successful Bidder (or, if the Sale
Transaction is to be consummated with a Back-Up Bidder, then such Back-Up Bidder) as part of
the damages resulting to the Debtors and their estates for such breach or failure to perform. Any
such forfeited Good Faith Deposit shall become property of the Debtors’ estates, shall be
considered proceeds of the Assets, and shall be subject to the liens of the Debtors’ DIP Lenders
and Prepetition Secured Parties (as defined in the DIP Order), in accordance with the lien
priorities set forth in the DIP Orders.
13. Sale Transaction Objections. All general objections to the Sale
Transaction, if any, must (a) be in writing, (b) state, with specificity, the legal and factual bases
thereof, (c) be filed with the Court and served so as to be actually received by no later than
July 22, 2024, at 4:00 p.m., (prevailing Eastern Time) on the following parties (collectively,
the “Notice Parties”): (i) the Debtors, 6125 North Riverwoods Boulevard, Mettawa, Illinois
60045; (ii) proposed co-counsel for the Debtors, Kirkland & Ellis LLP, 601 Lexington
Avenue, New York, New York 10022, (Attn.: Joshua A. Sussberg, P.C.
(joshua.sussberg@kirkland.com) and Chris Ceresa (chris.ceresa@kirkland.com)); and Kirkland
& Ellis LLP, 333 West Wolf Point Plaza, Chicago, Illinois 60654, (Attn.: Spencer A. Winters,
P.C. (spencer.winters@kirkland.com), Yusuf U. Salloum (yusuf.salloum@kirkland.com), and
Rebecca Marston (rebecca.marston@kirkland.com)); and Cole Schotz P.C., 500 Delaware
Avenue, Suite 1410, Wilmington, Delaware 19801, (Attn: Patrick J. Reilley, Esq.
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(preilley@coleschotz.com),
Stacy L. Newman (snewman@coleschotz.com), Michael E. Fitzpatrick, Esq.
(mfitzpatrick@coleschotz.com), and Jack M. Dougherty, Esq. (jdougherty@coleschotz.com),
and Court Plaza North, 25 Main Street, Hackensack, New Jersey 07601, (Attn.: Michael D.
Sirota, Esq. (msirota@coleschotz.com)); (iii) co-counsel to the DIP Lenders, Gibson, Dunn &
Crutcher LLP, 200 Park Avenue, New York, NY 10166-0193 (Attn: Scott J. Greenberg
(sgreenberg@gibsondunn.com), Jason Zachary Goldstein (jgoldstein@gibsondunn.com), Joshua
Brody (jbrody@gibsondunn.com), and Kevin Liang (kliang@gibsondunn.com)); and Pachulski
Stang Ziehl & Jones LLP, 919 North Market Street, 17th Floor, Wilmington, DE 19801
(Attn: Laura Davis Jones (ljones@pszjlaw.com)); (iv) proposed counsel to the Committee,
McDermott Will & Emery LLP, One Vanderbilt Avenue, New York, NY 10017-3852,
Attn: Darren Azman (dazman@mwe.com) and Kristin Going (kgoing@mwe.com) and
McDermott Will & Emery LLP, The Brandywine Building, 1000 N. West Street, Suite
1400, Wilmington, Delaware 19801, Attn.: David Hurst (dhurst@mwe.com) and Maris
Kandestin (mkandestin@mwe.com); (v) the Office of the United States Trustee, 844 King Street,
Suite 2207, Lockbox 35, Wilmington, Delaware 19801, Attn.: Benjamin A. Hackman
(Benjamin.A.Hackman@usdoj.gov); and (vvi) any other party that has requested notice pursuant
to Bankruptcy Rule 2002.
14. Following service of the Successful Bidder Notice, parties may object to
the conduct of the Auction, the particular terms of any proposed Sale Transaction in a Successful
Bid, or the identity of the Successful Bidder(s) or Backu-Up Bidder(s), or adequate assurance of
future performance of the Successful Bidder(s) (each such objection, a “Post-Auction
Objection”). Any Post-Auction Objection must (a) be in writing, (b) state, with specificity, the
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legal and factual bases thereof, and (c) be filed with the Court and served so as to be actually
received by no later than July 25, 2024, at 4:00 p.m., (prevailing Eastern Time) on the Notice
Parties.
15. Following service of the Successful Bidder Notice, parties may object to
the adequate assurance of future performance of the applicable Successful Bidder or Back-Up
Bidder (each such objection, an “Adequate Assurance Objection”). Any Adequate Assurance
Objection must (a) be in writing, (b) state, with specificity, the legal and factual bases thereof,
and (c) be filed with the Court and served so as to be actually received by no later than July 29,
2024 at 4:00 p.m. (prevailing Eastern Time) on the Notice Parties; provided that, to the extent
not consensually resolved, any Adequate Assurance Objection may be set for hearing at a date
and time following the Sale Hearing.
I. Auction, Bidding Procedures, and Related Relief.
16. 15. The Bidding Procedures, substantially in the form attached hereto as
Exhibit 1, are incorporated herein and are hereby approved in their entirety. The Bidding
Procedures shall govern the submission, receipt, and analysis of all Bids relating to any Sale
Transaction. Any party desiring to submit a Bid shall comply with the Bidding Procedures and
this Order. The Debtors are authorized to take any and all actions necessary to implement the
Bidding Procedures and the Debtors and their professionals shall direct and preside over the
Auction.
17. 16. Noticing Procedures. The noticing procedures as set forth in this
Order and the Motion, including the Sale Notice attached hereto as Exhibit 2, are hereby
approved. Within two (2) business days after entry of this Order, or as soon as reasonably
practicable thereafter, the Debtors shall serve the Sale Notice by first-class mail upon the parties
15
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that received notice of the Motion. On or about the same date, the Debtors will publish the Sale
Notice on the Debtors’ Case Website and will also publish a notice substantially similar to the
Sale Notice in The New York Times (national edition) (the “Publication Notice”). Service of the
Sale Notice and publication thereof in the manner described in this Order constitutes good and
sufficient notice of the Auction and the Sale Hearing. No other or further notice is required.
18. Cancellation of Auction. If only one Qualified Bid that meets the
Minimum Bid Requirement (including any Stalking Horse Bid) or no Qualified Bid that meets
the Minimum Bid Requirement (or Bid that may be remedied into a Qualified Bid pursuant to the
Bidding Procedures and is actually remedied into a Qualified Bid that meets the Minimum Bid
Requirement prior to the Auction) is received by the Bid Deadline, the Debtors shall (a) notify
the Court in writing that the Auction is cancelled, (b) file a notice of cancellation of the Auction,
and (c) if applicable, seek authority at the Sale Hearing to consummate the Sale Transaction with
the Qualified Bidder (including any Stalking Horse Bidder). The Debtors may also cancel the
Auction if they determine, with the written consent of the Required DIP Lenders, to implement
the Sale Transaction through a chapter 11 plan of reorganization in advance of the Bid Deadline.
For the avoidance of doubt and notwithstanding anything else herein or in the Bidding
Procedures, if there are no Qualified Bids that, individually or in the aggregate, meet the
Minimum Bid Requirement, the Debtors shall terminate the sale process and cancel the Auction.
For the avoidance of doubt, a Bid or series of Bids shall not constitute a “Qualified Bid” unless
such Bid(s) (a) meets the Minimum Bid Requirement and (b) contemplates that the aggregate
cash sale proceeds of such Bid(s) shall be indefeasibly paid to the DIP Lenders immediately
upon the closing of the Sale Transaction(s) subject to deductions for wind-down costs and
16
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expenses required to be paid pursuant to the DIP Orders and the RSA (which such deducted
amounts shall be paid to the Debtors).
19. 17. Sale Hearing. The Sale Hearing shall be held in the United States
Bankruptcy Court for the District of Delaware, 824 North Market Street, 6th Floor, Courtroom
No. []1, Wilmington, Delaware 19801, on July 2931, 2024, at 102:00 ap.m., (prevailing
Eastern Time) or such other date and time that the Court may later direct; provided that the Sale
Hearing may be adjourned, from time to time, in accordance with the Bidding Procedures
without further notice to creditors or parties in interest other than by filing a notice on the
Court’s docket or indicating such adjournment in an agenda filed on the Court’s docket.
II. Approval of the Assumption and Assignment Procedures.
20. 18. The assumption and assignment procedures as set forth in this Order
and the Motion, including the Potentially Assumed and Assigned Contracts Notice and
Successful Bidder Notice attached hereto as Exhibit 3 and Exhibit 4, are hereby approved. No
later than two (2) business days (or as soon as reasonably practicable thereafter) after the entry of
this Order, the Debtors shall file an Potentially Assumed and Assigned Contracts Notice,
substantially in the form attached hereto as Exhibit 3, and serve such notice (a) by overnight
delivery service upon the applicable Contract Counterparties at the address set forth in the notice
provision of the applicable contract or lease (and their counsel, if known) and (b) by first class
mail, email, or fax upon the Notice Parties. The Potentially Assumed and Assigned Contracts
Notice shall notify the Contract Counterparties that the applicable executory contracts and
unexpired leases are subject to potential assumption and assignment and of the Debtors’
proposed cure amounts relating to such executory contracts and unexpired leases.
17
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21. 19. Following the Bid Deadline, upon request by any Contract
Counterparty, the Debtors will send such party evidence by first class mail and email (if known),
that any Qualified Bidder that included such contract or lease in its Bid has the ability to perform
thereunder and otherwise complies with the requirements of adequate assurance of future
performance under section 365(b)(1) of the Bankruptcy Code on a confidential basis for all
nonpublic information. Notwithstanding the foregoing, the rights of the U.S. Trustee and any
domestic governmental unit (as defined in 11 U.S.C. § 101(27)) to object to the terms of any
proposed sale order or purchase agreement shall be preserved for a period of at least four (4)
business days of the filing of such document; provided that, in the event any revised version of
such document is filed, such 4˗business˗day period shall relate back to the date when the initial
version of such document, as applicable, was filed, except to the extent the revisions or
modifications reflected in such revised version may materially affect the interests of the U.S.
Trustee or any domestic governmental unit, as applicable, in which case, the 4˗business˗day
period shall be preserved for such party as to such revisions or modifications based on when
such revised version was filed.
22. 20. A Contract Counterparty objecting to a proposed cure amount or
assumption and assignment on any basis (except objections solely related to adequate assurance
of future performance by Successful Bidder) must file a written objection with the Court by
fourteen (14) days after serving the applicable Potentially Assumed and Assigned Contracts
Notice, and serve such objection on the Notice Parties (such deadline, the “Assumption and
Assignment Objection Deadline”). The Debtors shall file on the docket in these chapter 11 cases
copies of the Successful Bidder Notice or notice of cancellation, as applicable, and the final form
18
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of proposed order approving the Sale Transaction as agreed upon between the Debtors and the
Successful Bidder.
23. 21. In the event that the Debtors later identify any Contract Counterparty
which was not served with the Potentially Assumed and Assigned Contracts Notice, the Debtors
may subsequently serve such Contract Counterparty with a Potentially Assumed and Assigned
Contract substantially in the form attached hereto (each, a “Supplemental Potentially Assumed
and Assigned Contracts Notice”), and the Assumption and Assignment Procedures will
nevertheless apply to such Contract Counterparty; provided that the Assumption and Assignment
Objection Deadline with respect to a Contract Counterparty listed on a Supplemental Potentially
Assumed and Assigned Contracts Notice shall be fourteen (14) days following the date of service
of a Supplemental Potentially Assumed and Assigned Contracts Notice.
24. 22. If an objection to the Debtors’ proposed cure amounts is timely filed
and not withdrawn or resolved by the Sale Hearing, such cure objections will not be heard at the
Sale Hearing. Any dispute regarding the cure amounts will either be resolved consensually, if
possible, or, if the parties are unable to resolve, at a later date as set by the Court. The Debtors
shall file and serve a notice for a hearing for the Court to consider the unresolved cure
objection(s) at the next scheduled omnibus hearing which shall be set fourteen (14) days after the
Sale Hearing, subject to Court availability, unless the Debtors and the objecting parties agree to a
different time and subject to the Court’s schedule. The Debtors reserve the right to reject, and
not assume and assign, any contract depending on the ultimate resolution of any cure amount in
dispute; provided that, in the case of an unexpired lease of non-residential real property, such
determination shall be prior to the expiration of the applicable deadline to assume or reject
unexpired leases under section 365(d)(4) of the Bankruptcy Code. For the avoidance of doubt, if
19
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the Successful Bidder determines, in its sole discretion, that the cure dispute is too material, the
Successful Bidder may delay the assignment of such contract or lease until the resolution of the
cure amount; provided that, in such case, if any, the Successful Bidder shall be responsible for
any and all costs arising under such contract or lease during the pendency of the dispute.
25. 23. If no objection to the assumption of any contract or lease is timely
filed or if an objection is filed and resolved, each contract or lease to be assumed and assigned to
the Successful Bidder shall be assumed as of the effective date of the assumption and assignment
of the contract or lease (the “Assignment Date”) set forth in the applicable Successful Bidder
Notice or such other date as the Debtors and the Contract Counterparty agree and the proposed
cure amount shall be binding on all Contract Counterparties and the Contract Counterparties will
be forever barred from asserting any other claims related to the contract or lease against the
Debtors. Upon the Assignment Date, the Successful Bidder shall pay all applicable cure
amounts.
26. 24. As soon as reasonably practicable after the closing of a Sale
Transaction, the Debtors will file with the Court, serve on the applicable Contract Counterparties
and cause to be published on the Case Website, a notice containing the list of contracts and
leases that the Debtors assumed and assigned pursuant to any asset purchase agreement with a
Successful Bidder.
27. 25. The inclusion of a contract on the Successful Bidder Notice shall not:
(a) obligate the Debtors to assume or assign any contracts or leases listed thereon; or
(b) constitute any admission or agreement of the Debtors that such contract or lease is an
executory contract. Only those contracts and leases that are included on a schedule of assumed
20
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and acquired contracts and leases attached to a final asset purchase agreement will be assumed
and assigned, and shall only be assumed and assigned upon the Assignment Date.
28. 26. In the event the Auction is cancelled pursuant to the Bidding
Procedures, the Debtors may continue to utilize the assumption and assignment procedures as set
forth in this Order and the Motion to further assess the potential assumption, assumption and
assignment, or rejection of any executory contracts and unexpired leases and to determine any
applicable cure amounts.
III. Miscellaneous.
29. 27. The failure to include or reference a particular provision of the Bidding
Procedures, the RSA, and the DIP Orders, specifically in this Order shall not diminish or impair
the effectiveness or enforceability of such a provision.
30. 28. All parties in interest reserve any right they may have to object to, or
otherwise contest, any proposed sale of the Debtors’ assets requiring Court approval (and the
appropriate allocation of sale proceeds set forth in any order).
31. 29. In the event of any inconsistencies between this Order and the Motion
and/or the Bidding Procedures, this Order shall govern in all respects.
32. 30. Notice of the Motion as provided therein shall be deemed good and
sufficient notice of such Motion and the requirements of Bankruptcy Rule 6004(a), and such
notice satisfies the applicable Local Rules.
33. 31. To the extent the dates and deadlines herein are modified pursuant to
the Bidding Procedures and such modification is inconsistent with the requirements of Local
Rule 9006-1, such requirements shall be deemed satisfied.
21
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34. 32. Notwithstanding anything to the contrary contained herein, any
payment to be made hereunder, and any authorization contained herein, shall be subject to any
interim and final orders, as applicable, approving the use of such cash collateral and/or the
Debtors’ entry into any postpetition financing facilities or credit agreements, and any budgets in
connection therewith governing any such postpetition financing and/or use of cash collateral
(each such order, a “DIP Order”). To the extent there is any inconsistency between the terms of
the DIP Orders and any action taken or proposed to be taken hereunder, the terms of the DIP
Orders shall control, and to the extent there is any inconsistency between the terms of the RSA
and any action taken or proposed to be taken hereunder, the terms of this Order shall control.
Nothing in the Motion or this Order waives or modifies the requirements of the RSA, including
without limitation, any milestone or consent and consultation rights contained in the RSA or DIP
Documents (as defined in the DIP Orders).
35. The Debtors and Cigna Health and Life Insurance Company (“Cigna”) are
parties to an Administrative Services Contract and a Stop Loss Policy that facilitate the Debtors’
self-funded employee healthcare benefits (jointly, the “Cigna Employee Benefits Agreements”).
Notwithstanding anything in this Order to the contrary, for any Sale Transaction, unless Cigna
and the Debtors agree otherwise, the Debtors shall provide to Cigna, through its counsel (email
sufficient), no later than (a) in the event there is no Auction, two (2) business days prior to the
Sale Hearing, or (b) in the event the Auction goes forward, not later than noon, one (1) business
day prior to the Sale Hearing, written notice of Debtors’ irrevocable (subject to closing of the
applicable Sale Transaction) decision as to whether or not the Debtors propose to assume and
assign the Cigna Employee Benefits Agreements to the applicable Successful Bidder(s) as part of
the applicable proposed Sale Transaction.
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36. 33. Notwithstanding Bankruptcy Rule 6004(h), the terms and conditions
of this Order are immediately effective and enforceable upon its entry.
37. 34. The Debtors are authorized to take all actions necessary to effectuate
the relief granted in this Order in accordance with the Motion.
38. 35. This Court retains exclusive jurisdiction with respect to all matters
arising from or related to the implementation, interpretation, and enforcement of this Order. This
Court has the authority to fashion appropriate relief, on an emergency basis or otherwise, for any
violations of this Order or the Bidding Procedures.
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EXHIBIT 1
Bidding Procedures
Case 24-11217-BLS Doc 233-2 Filed 07/09/24 Page 26 of 71
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 Administerationed
Requested)
)
BIDDING PROCEDURES
The debtors and debtors in possession (collectively, the “Debtors”) in the above-captioned
chapter 11 cases (collectively, the “Chapter 11 Cases”) will use the procedures set forth herein
(the “Bidding Procedures”) in connection with a sale or disposition of some, all, or substantially
all of the Debtors’ assets (the “Assets”) in one or more sale transactions (each, a “Sale
Transaction”), which transaction(s) may be effectuated through either a chapter 11 plan of
reorganization or a sale pursuant to section 363 of the Bankruptcy Code, and which transactions
may contemplate the sale of one or more of:
any and all assets associated with the Debtors’ Ventilation business (the “Ventilation
Assets”);
any and all assets associated with the Debtors’ Respiratory Diagnostics business
(the “Respiratory Diagnostics Assets”); and
a portion of any and all assets, including, but not limited to, any Ventilation Assets,
Respiratory Diagnostic Assets, or a combination thereof, up to all of the Debtors’ assets (the
“Entire Business Assets”).
On June 9, 2024, the Debtors filed with the United States Bankruptcy Court for the
District of Delaware (the “Court”) the Motion of the Debtors for Entry of an Order (I) Approving
Bidding Procedures in Connection with the Sale of Substantially All of the Debtors’ Assets,
(II) Authorizing the Debtors to Enter Into a Stalking Horse Agreement and Provide Bid
Protections, (III) Approving the Form and Manner of Notice Thereof, (IV) Scheduling an
Auction and Sale Hearing, (V) Approving Procedures for the Assumption and Assignment of
Contracts, (VI) Approving the Sale of the Debtors’ Assets Free and Clear, and (VII) Granting
Related Relief [Docket No. []16] (the “Motion”). By the Motion, the Debtors sought, among
1
A complete list of each of the Debtors in these chapter 11 cases and each such Debtor’s federal tax
identification number may be obtained on the website of the Debtors’ proposed claims and noticing agent at
https://omniagentsolutions.com/Vyaire. The location of Debtor Vyaire Medical, Inc.’s principal place of
business and the Debtors’ service address in these chapter 11 cases is 26125 North Riverwoods Boulevard,
Mettawa, Illinois, USA 60045.
Case 24-11217-BLS Doc 233-2 Filed 07/09/24 Page 27 of 71
other things, entry of an order approving Bidding Procedures2 for soliciting bids for, conducting
an auction (the “Auction”) of, and consummating one or more Sale Transactions of, the Assets,
as further described herein.
On [], 2024, the Court entered an Order (I) Approving Bidding Procedures in
Connection with the Sale of Substantially All of the Debtors’ Assets, (II) Authorizing the Debtors
to Enter Into a Stalking Horse Agreement and Provide Bid Protections, (III) Approving the Form
and Manner of Notice Thereof, (IV) Scheduling an Auction and Sale Hearing, (V) Approving
Procedures for the Assumption and Assignment of Contracts, (VI) Approving the Sale of the
Debtors’ Assets Free and Clear, and (VII) Granting Related Relief [Docket No. []] (the
“Bidding Procedures Order”).
Assets to Be Sold “Free and Clear”
Except as otherwise provided in a Modified APA (as defined below) submitted by a
Successful Bidder (as defined below), all of the Debtors’ right, title, and interest in and to the
Assets subject thereto shall be sold, subject to the Minimum Bid Requirement described below,
free and clear of any pledges, liens, security interests, encumbrances, claims, charges, options,
and interests thereon (collectively, the “Interests”), subject only to the Assumed Liabilities and
Permitted Encumbrances (each as defined in the Modified APA of the applicable Successful
Bidder), to the maximum extent permitted by section 363 of the Bankruptcy Code, with such
Interests to attach to the net proceeds of the sale(s) of the Assets with the same validity, force,
effect, and priority as such Interests applied against the Assets as of the date the Debtors’
commenced these Chapter 11 Cases, subject to any rights, claims, and defenses of the Debtors.
A party may participate in the bidding process by submitting a bid for (a) all or
substantially all of the Assets and/or (b) one or more, or any combination of, Assets of one
or more Debtors, as that party may desire.
2
All capitalized terms not herein defined shall have the meanings ascribed to them in the Motion and/or the Bidding
Procedures Order (as defined below), as applicable.
2
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Submission of Bid
Any interested bidder should contact, as soon as practicable:
PJT Partners LP
280 Park Avenue
New York, NY 10017
Attn:
Michael Schlappig Jamie Baird Dylan Friesner
michael.schlappig@pjtpartners.co jamie.baird@pjtpartners.com dylan.friesner@pjtpartners.com
m (tel.) +1 (212) 364-5300 (tel.) +1 (260) 417-0405
(tel.) +1 (212) 364-2783
Key Dates and Deadlines
The key dates and deadlines for the sale process are as follows:
Deadline Item
Deadline for submission of a non-binding
July 1, 2024, at 4:00 p.m., (prevailing
Indication of Interest
Eastern Time)
July 9, 2024 Bidding Procedures Hearing
July 10, 2024 (or as soon as reasonably Deadline for the Debtors to file and serve the Sale
practicable thereafter) Notice3
July 10, 2024 (or as soon as reasonably Deadline for the Debtors to publish the Publication
practicable thereafter) Notice4
July 11, 2024 (or as soon as reasonably Deadline for the Debtors to file and serve the
practicable thereafter) Potentially Assumed and Assigned Contract Notice
July 11, 2024 Stalking Horse Bidder Designation (as defined
below) (if the Debtors so choose to designate one
or more Stalking Horse Bidders (as defined below))
3
“Sale Notice” shall mean the notice the Debtors will file with the Bankruptcy Court and cause to be published
on the Debtors’ Case Website setting forth (A) a description of the Assets available for sale in accordance with
these Bidding Procedures; (B) the date, time, and location of the Auction and proposed Sale Hearing; (C) the
Sale Transaction Objection Deadline and the procedures for filing such objections; and, if applicable,
(D) a summary of the material terms of any Stalking Horse APA, including the terms and conditions of any Bid
Protections to be provided thereunder, if applicable.
4
“Publication Notice” shall mean a notice which the Debtors shall cause to be published in The New York Times
(national edition) which shall include the information contained in the Sale Notice.
3
Case 24-11217-BLS Doc 233-2 Filed 07/09/24 Page 29 of 71
Deadline Item
Bidding Procedures Hearing (subject to the court’s
July 1, 2024
availability)
No later than four (4) days after the
filing of the Stalking Horse Notice
Stalking Horse Objection Deadline
(as defined below) at 4:00 p.m.,
(prevailing Eastern Time)
July 3, 2024 (or as soon as reasonably Deadline for the Debtors to file and serve the Sale
practicable thereafter) Notice1
July 3, 2024 (or as soon as reasonably Deadline for the Debtors to file and serve the
practicable thereafter) Potentially Assumed and Assigned Contract Notice
Fourteen (14) days following service of
any notice of proposed assumption and Assumption and Assignment Objection Deadline
assignment.
July 5, 2024 (or as soon as reasonably Deadline for the Debtors to publish the Publication
practicable thereafter) Notice1
July 22, 2024, at 4:00 p.m., (prevailing
Sale Transaction Objection Deadline
Eastern Time)
July 22, 2024, at 5:00 p.m., (prevailing
Bid Deadline
Eastern Time)
1
“Sale Notice” shall mean the notice the Debtors will file with the Bankruptcy Court and cause to be published
on the Debtors’ Case Website setting forth (A) a description of the Assets available for sale in accordance with
these Bidding Procedures; (B) the date, time, and location of the Auction and proposed Sale Hearing; (C) the
Sale Transaction Objection Deadline and the procedures for filing such objections; and, if applicable,
(D) a summary of the material terms of any Stalking Horse APA, including the terms and conditions of any Bid
Protections to be provided thereunder, if applicable.
1
“Publication Notice” shall mean a notice which the Debtors shall cause to be published in The New York Times
(national edition) which shall include the information contained in the Sale Notice.
4
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Deadline Item
July 24, 2024, at 10:00 a.m.,
Auction Date (if any)
(prevailing Eastern Time)
Deadline for the Debtors to file with the
Bankruptcy Court the Successful Bidder Notice (as
July 24, 2024 (or as soon as reasonably defined below), including the proposed Sale
practicable) Order(s) (as defined below), the final asset
purchase agreement, and any relevant schedules
thereto
July 25, 2024, at 4:00 p.m., (prevailing
Post-Auction Objection Deadline
Eastern Time)
July 26, 2024, at 4:00 p.m., (prevailing
Sale Transaction Reply Deadline
Eastern Time)
July 29, 2024, at 4:00 p.m. (prevailing
Adequate Assurance Objection Deadline
Eastern Time)
July 2931, 2024, at 102:00 ap.m.,
(prevailing Eastern Time) (subject to Sale Hearing (as defined below)
the Court’s availability)
August 19, 2024 Deadline to consummate Sale Transaction
The Debtors, with the consent of the Required DIP Lenders (which consent shall not be
unreasonably withheld), and in consultation with the Committee, may adjourn any of the key
dates or deadlines herein without further order of the Bankruptcy Court; provided that the
Debtors shall promptly file a notice with the Bankruptcy Court of any changes to the key dates or
deadlines herein. AnyUnless otherwise indicated , any such adjournment shall not itself modify
any of the Milestones under (and as defined in) the terms of the proposed debtor-in-possession
financing (the “DIP Facility”) and the restructuring support agreement (the “RSA”).
5
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Consultation Parties
Throughout the sale process, the Debtors and their advisors will regularly and timely
consult with the following parties (collectively, the “Consultation Parties”): (i) the advisors to
the DIP Lenders, DIP Agent, and the Prepetition Agents (each as defined below), (ii) the
advisors to the official committee of unsecured creditors appointed in these Chapter 11 Cases
(the “Committee”), and (iii) any other statutory committee appointed under 11 U.S.C. § 1102 in
the Chapter 11 Cases; provided, however, that during any period in which a Consultation Party
has submitted a Qualified Bid and has become a Qualified Bidder, such Consultation Party shall
no longer be considered a Consultation Party under these Bidding Procedures solely for so long
as such Consultation Party’s Bid remains a Qualified Bid and is not disqualified or withdrawn.
The DIP Lenders, Prepetition Lenders, Prepetition Agents, and the DIP Agent agree solely in the
event that the Debtors receive a Bid or series of Bids by the Bid Deadline that is not less than the
Minimum Bid Requirement, then the DIP Lenders and the DIP Agent shall not submit a Bid,
including a credit bid, for the Assets; provided that if the Minimum Bid Requirement is not
satisfied and the Debtors terminate the sale process and cancel the Auction, the DIP Lenders and
the DIP Agent may thereafter elect to credit bid for the Assets. For the avoidance of doubt,
unless approved by the Bankruptcy Court, no amendment or other modification to these Bidding
Procedures shall be made by the Debtors without the consent of the Required DIP Lenders (as
defined below) (which consent shall not be unreasonably withheld), and in consultation with the
Committee.
Qualifications to Submit Bids and Participate in Auction
A. Diligence Materials
To participate in the bidding process for a Sale Transaction and to receive access to due
diligence materials (the “Diligence Materials”), a party must submit to the Debtors (i) an
executed confidentiality agreement, which must be based on the form confidentiality agreement
supplied by the Debtors in a designated data room and in form and substance satisfactory to the
Debtors and (ii) reasonable evidence demonstrating the party’s financial capability to
consummate a Sale Transaction with respect to those Assets in which the party is preliminarily
interested as determined by the Debtors in their reasonable business judgment. No party will be
permitted to conduct any due diligence without entering into a confidentiality agreement
described in clause (i).
A party who qualifies for access to Diligence Materials shall be a “Preliminary Interested
Investor.” The Debtors will afford any Preliminary Interested Investor the time and opportunity
to conduct due diligence within the deadlines set forth in these Bidding Procedures. Until the
Bid Deadline (as defined below), in addition to granting access to the Diligence Materials, the
Debtors will provide Preliminary Interested Investors with due diligence access and additional
information, as may be requested by a Preliminary Interested Investor, to the extent that the
Debtors and the Required DIP Lenders determine that such requests are reasonable and
appropriate under the circumstances. All due diligence requests shall be directed to PJT Partners
LP (“PJT”) (Attn: Dylan Friesner (dylan.friesner@pjtpartners.com)). The Debtors, with the
6
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assistance of PJT, will coordinate all reasonable requests for additional information and due
diligence access from Preliminary Interested Investors.
The Debtors reserve the right to withhold or modify any Diligence Materials that the
Debtors, with the consent of the Required DIP Lenders, determine in good faith are business
sensitive or otherwise not appropriate for disclosure to a Preliminary Interested Investor who is a
competitor, vendor, or customer of the Debtors or is directly or indirectly affiliated with any
competitor, vendor, or customer of the Debtors. Neither the Debtors nor their representatives
shall be obligated to furnish information of any kind whatsoever to any party that is not
determined to be a Preliminary Interested Investor.
B. Due Diligence from Bidders
Each Preliminary Interested Investor and Bidder (as defined below) shall comply with all
reasonable requests with respect to information and due diligence access by the Debtors or their
advisors regarding such Preliminary Interested Investor or Bidder, as applicable, and its
contemplated Sale Transaction. Failure by a potential bidder (including any Qualified Bidder (as
defined below)) to comply with such reasonable requests for additional information and due
diligence access may be a basis for the Debtors to determine that such Bidder is no longer a
Qualified Bidder or that a bid made by such Bidder is not a Qualified Bid (as defined below).
C. Indication of Interest Deadline
7
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In order to be eligible to submit a Bid, Acceptable Bidders will first be required to submit
a non-binding Indication of Interest on or before July 1, 2024, at 4:00 p.m., (prevailing
Eastern Time) (as may be extended in accordance with the terms of the Bidding Procedures
Order and these Bidding Procedures, the “IOI Deadline”), to the Debtors and their proposed
investment banker, PJT Partners LP, 280 Park Avenue, New York, New York 10017, Attn:
Michael Schlappig (schlappig@pjtpartners.com), Jaimie Baird (baird@pjtpartners.com), and
Dylan Friesner (friesner@pjtpartners.com); provided, that, with the consent of the Required DIP
Lenders (which consent shall not be unreasonably withheld), and in consultation with the
Committee, the Debtors may extend the IOI Deadline or waive the requirement of an Indication
of Interest for one or more Acceptable Bidders upon request, without further order of the Court;
provided that the Debtors shall file a notice with the Court if the Debtors decide, subject to the
consent of the Required DIP Lenders (which consent shall not be unreasonably withheld), and in
consultation with the Committee, to extend the deadline by which IOIs for a Sale Transaction
must be submitted for all parties; provided further that if the Debtors do not receive any
indications of interests by the IOI deadline that (individually or in the aggregate), in the good
faith estimate of the Debtors and their advisors, and with the consent of the Required DIP
Lenders , and in consultation with the Committee, are reasonably likely to lead to Bids that
(individually or in the aggregate) meets the Minimum Bid Requirement, then the Debtors shall
terminate the sale process and cancel the Auction. If the Debtors extend the IOI Deadline as to
all parties, the Debtors will promptly notify all Acceptable Bidders and file a notice of such
extension on the Court’s docket. The Debtors will then notify each Acceptable Bidder whether
its Indication of Interest satisfies the requirements set forth in the Motion and that such bidder is
qualified to submit a Bid that reflects such Indication of Interest.
D. Bid Deadline and Auction Qualification Process
To be eligible to participate in the Auction, a party must be a Preliminary Interested
Investor and must submit a written offer for a Sale Transaction of some or all of the Debtors’
Assets (each, a “Bid” and the Preliminary Interested Investor that submits a Bid, a “Bidder”) that
must (i) be determined by the Debtors to satisfy each of the conditions set forth in this section
and (ii) be actually received by (a) counsel to the Debtors, Kirkland & Ellis LLP, 601 Lexington
Avenue, New York, New York 10022, (Attn.: Joshua A. Sussberg, P.C.
(joshua.sussberg@kirkland.com), and Chris Ceresa (chris.ceresa@kirkland.com)); and Kirkland
& Ellis LLP, 333 West Wolf Point Plaza, Chicago, Illinois 60654, (Attn.: Spencer A. Winters,
P.C. (spencer.winters@kirkland.com) and Yusuf U. Salloum (yusuf.salloum@kirkland.com));
and Cole Schotz P.C., 500 Delaware Avenue, Suite 1410, Wilmington, Delaware 19801, (Attn:
Patrick J. Reilley, Esq. (preilley@coleschotz.com), Stacy L. Newman
(snewman@coleschotz.com), Michael E. Fitzpatrick, Esq. (mfitzpatrick@coleschotz.com), and
Jack M. Dougherty, Esq. (jdougherty@coleschotz.com)), and Court Plaza North, 25 Main Street,
Hackensack, New Jersey 07601, (Attn.: Michael D. Sirota, Esq. (msirota@coleschotz.com)) on
or before July 22, 2024,
at 5:00 p.m., (prevailing Eastern Time) (as may be extended in accordance with the terms of
this Order and the Bidding Procedures, the “Bid Deadline”).
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A Bid will not be considered qualified for the Auction if such Bid does not satisfy each of
the following conditions:
1. Executed Agreement: Each Bid must include (a) an offer letter, signed by an
authorized representative of the Bidder, pursuant to which the Bidder offers to consummate the
Sale Transaction contemplated by such Bid on the terms set forth in the Modified APA (as
defined below) together with (b) an asset purchase agreement, which may be based on the form
asset purchase agreement supplied by the Debtors in a designated data room (the “Form APA”)
or, if applicable, the Stalking Horse APA (as defined below), signed by an authorized
representative of the Bidder, pursuant to which the Bidder agrees to consummate such Sale
Transaction for the Assets referenced therein (together with all ancillary documents and
schedules contemplated thereby, a “Modified APA”). For the avoidance of doubt, a Bidder shall
not be required to base a Modified APA on the Form APA or, if applicable, the Stalking Horse
APA so long as such Bidder’s Bid contains all material terms of such Bid. Each Modified APA
must provide a commitment to close the Sale Transaction contemplated by such Modified APA
within a time frame acceptable to the Debtors after all closing conditions set forth in such
Modified APA are met (other than those which are to be satisfied at the closing of the
transactions contemplated by such Modified APA).
2. Good Faith Deposit: Each Bid must be accompanied by a cash deposit in the
amount of ten percent (10%) of the cash purchase price contemplated in such Bid, before any
adjustments to the purchase price, to an escrow account to be identified and established by the
Debtors (the “Good Faith Deposit”). To the extent a Qualified Bid is modified before, during, or
after the Auction in any manner that increases the cash purchase price contemplated by such
Qualified Bid, the Debtors reserve the right to require that such Qualified Bidder increase its
Good Faith Deposit so that it equals ten percent (10%) of the increased purchase price. In the
event that any Bid includes non-cash consideration, the Debtors reserve the right to require a
Good Faith Deposit of cash in the amount of ten percent (10%) of the value of the total
consideration contemplated by such Bid, as determined in the Debtors’ discretion.
3. Good Faith Offer: Each Bid must represent an irrevocable, binding, good faith,
and bona fide offer to purchase some or all of the Assets identified in such Bid if such Bid is
selected as the Successful Bid or the Back-Up Bid (each as defined herein).
4. Minimum Bid Requirement: Each Bid for all or substantially all of the Debtors’
Assets must consist of or include cash consideration to be paid at the closing of the transactions,
which such amount will be payable to the DIP Lenders, contemplated by the Modified APA in an
amount equal to at least an amount that would satisfy the Minimum Bid Requirement (as defined
below in the next paragraph); provided, however, that any Bid for less than substantially all of
the Debtors’ Assets will not be subject to any minimum Bid amount threshold. Each Bid must
set forth the total purchase price for such Bid.
Notwithstanding the foregoing, if the aggregate cash consideration for the Debtors’ Assets,
whether consisting of one Bid or a series of Bids for either some, all, or substantially all of the
Debtors’ Assets that would be payable to the DIP Lenders does not meet or exceed $140,000,000
(the “Minimum Bid Requirement”), then the Debtors shall terminate the sale process and cancel
5
the For the 5
avoidance
Auction. For ofthe
doubt, the Minimum
avoidance Bid Requirement
of doubt, shall take into
in the reasonable account (i)ofallthe
discretion windRequired
down costsDIP
and
expenses associated with any wind down budget, (ii) any success or transaction fees payable to the Debtors’
9
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Lenders, the determination as to whether the Minimum Bid Requirement is satisfied may take
into account, among other things, consideration in the form of cure costs paid or assumed under
each Bid.
5. Joint Bids: The Debtors, with the consent of the Required DIP Lenders (which
consent shall not be unreasonably withheld), and in consultation with the Committee, will be
authorized to approve joint Bids in their reasonable discretion on a case-by-case basis.
6. Purchased Assets and Assumed Liabilities: Each Bid must clearly provide which
of the Assets the Bidder seeks to acquire, and which of the Assumed Liabilities (as defined in the
Modified APA) the Bidder agrees to assume. With respect to any bids for less than all or
substantially all of the Debtors’ Assets, the Debtors reserve the right to request an allocation of
the purchase price among the Assets the Bidder seeks to acquire and the Assumed Liabilities the
Bidder agrees to assume.
7. Designation of Assigned Contracts and Leases: Subject to the terms of the
Modified APA, each Bid must identify any and all executory contracts and unexpired leases of
the Debtors that the Bidder wishes to be assumed and assigned to the Bidder at the closing of the
Sale Transaction contemplated by such Bid.
8. Corporate Authority: Each Bid must include written evidence reasonably
acceptable to the Debtors demonstrating appropriate corporate or similar governance
authorization of the Bidder to consummate the proposed Sale Transaction; provided that, if the
Bidder is an entity specially formed for the purpose of effectuating the Sale Transaction, then the
Bidder must furnish written evidence reasonably acceptable to the Debtors of the approval of the
Sale Transaction by the equity holder(s) of such Bidder and any other governing body of the
Bidder that is required to approve the Sale Transaction.
9. Disclosure of Identity of Bidder: Each Bid must fully disclose the identity of each
entity (including any equity owners, sponsors, or co-investors) that will be bidding for or
purchasing the Assets or otherwise directly or indirectly participating in connection with such
Bid.
10. Proof of Financial Ability to Perform: Each Bid must include written evidence
that the Debtors conclude demonstrates that the Bidder has the necessary financial ability to (i)
timely close the Sale Transaction contemplated by such Bid within a time frame acceptable to
the Debtors after all closing conditions set forth in the Modified APA are met and (ii) provide
adequate assurance of future performance under all contracts to be assumed and assigned in such
Sale Transaction. Such information must include, inter alia, the following:
expenses associated with any wind down budget, (ii) any success or transaction fees payable to the Debtors’
proposed investment banker, PJT Partners LP and the financial advisor to the DIP Lenders, Rothschild & Co.,
and (ii) all cash on the Debtors’ balance sheet or otherwise available to the Debtors to fund the expenses set
forth in (i) and (ii).
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a. Contact names and numbers for verification of financing sources, if any;
b. Written evidence of the Bidder’s internal financial resources and ability to finance
its Bid with cash on hand, available lines of credit, uncalled capital commitments or otherwise
available funds (including through the posting of an irrevocable letter of credit or customary debt
or equity financing commitment letters that comply with the requirements of this sub paragraph
10.b or sub-paragraph 10.c below, as applicable, in each case, from reputable financial
institutions) in an aggregate amount sufficient to pay the cash purchase price contemplated by
such Bid, to pay for cure costs for contracts to be assumed and assigned in the Sale Transaction,
and to satisfy all other obligations of the Bidder pursuant to the Modified APA (“Bidder’s
Obligations”); provided that, if the Bidder is an entity that is specially formed for the purpose of
effectuating the Sale Transaction or if the Bidder intends to raise any equity financing to fund
any portion of Bidder’s Obligations, then the Bidder must furnish to the Debtors a fully executed
and effective equity commitment letter or guarantee (“Bidder Support”) (which Bidder Support
shall remain outstanding until at least sixty (60) days after the date of entry of the Sale Order (or
the “outside date” in the Modified APA, if later), subject to a potential further extension as set
forth herein or thereinwith the consent of the Required DIP Lenders) from its equity holders or
other affiliated entities with respect to the portion of Bidder’s Obligations that are not to be paid
with cash on hand (which Bidder Support may not be subject to any conditions other than the
satisfaction of the conditions set forth in the Modified APA and shall include third party
beneficiary language in favor of the Debtors entitling the Debtors to enforce such Bidder Support
directly against the counterparties) and provide written evidence that its equity holders or other
affiliated entities providing the Bidder Support have the resources and ability to finance such
portion of the Bidder’s Obligations;
c. Without limiting the requirements of sub-paragraph 10.b above, if the Bidder
intends to raise any debt financing to fund any portion of the Bidder’s Obligations, the Bid must
include fully executed and effective debt financing commitment letter(s), which letter(s) shall
(i) not be subject to any internal approvals, credit committee approvals or diligence conditions,
(ii) be in customary form, and (iii) remain outstanding until sixty (60) days after the date of entry
of the Sale Order (subject to a potential further extension as set forth hereinwith the consent of
the Required DIP Lenders); and
d. Any such other form of financial disclosure or credit-quality support information
or enhancement reasonably requested by the Debtors demonstrating that such Bidder (or, if the
Bidder is an entity formed for the purpose of making a Bid, its Bidder Support) has the ability to
close the Sale Transaction on the terms set forth in the Modified APA.
11. Adherence to Bidding Procedures: By submitting its Bid, each Bidder is agreeing
to abide by and honor the terms of these Bidding Procedures and agrees not to submit a Bid or
seek to reopen the Auction after conclusion of the Auction.
12. Regulatory and Third-Party Approvals: Each Bid must set forth each government,
licensing, regulatory, and other third-party approval or filing required to be obtained or made by
the Bidder or its Bidder Support, and each waiting period required to have expired or terminated,
for the Bidder to consummate the Sale Transaction, and the time period within which the Bidder
expects to receive such approvals, to make such filings or such waiting periods to expire or
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Case 24-11217-BLS Doc 233-2 Filed 07/09/24 Page 37 of 71
terminate (and in the case that receipt of any such approval, the making of any such filing, or the
expiration or termination of any such waiting period is expected to take more than thirty (30)
days following execution and delivery of the Modified APA, those actions the Bidder will take to
ensure receipt of such approval(s), the making of such filing(s) or the expiration or termination
of such waiting period(s) as promptly as possible).
13. Contact Information and Affiliates: Each Bid must provide the contact
information for the Bidder and full disclosure of any affiliates of the Bidder.
14. Contingencies and Other Provisions: Each Bid shall not contain any escrow
arrangements, indemnities, or adjustments to the purchase price. Without limiting the
immediately preceding sentence, each Bid shall not include any conditions or contingencies
relating to financing (including, for the avoidance of doubt, any conditionality, or limitations on
specific performance, relating to any financing contemplated by sub-paragraph 10.c above),
internal approvals, or the absence of any material adverse effect.
15. Contingencies Regarding Due Diligence: Each Bid shall not include any
conditions or contingencies relating to due diligence.
16. Acknowledgement of Independent Review: Each Bid must include a written
acknowledgement and representation that the Bidder: (i) has had an opportunity to conduct any
and all due diligence prior to making its Bid; (ii) has relied solely upon its own independent
review, investigation, and/or inspection of any documents and/or the Assets in making its Bid;
and (iii) did not rely upon any written or oral statements, representations, promises, warranties,
or guaranties, express, implied, statutory or otherwise, regarding the Assets, the financial
performance of the Assets or the physical condition of the Assets, or the accuracy or
completeness of any information provided in connection therewith or the Auction, except as
expressly stated in these Bidding Procedures or the Modified APA.
17. Irrevocable: Each Bid must be irrevocable unless and until the Debtors accept a
higher Bid and such Bidder is not selected as the Back UpBack-Up Bidder (as defined below);
provided that if a Bid is accepted as the Successful Bid or the Back-Up Bid, such Bid shall
continue to remain irrevocable, subject to the terms and conditions of these Bidding Procedures.
18. Compliance with Diligence Requests: The Bidder submitting the Bid must have
complied with reasonable requests for additional information and due diligence access from the
Debtors to the satisfaction of the Debtors.
19. Back-Up Bid: Each Bid shall provide that the Bidder will serve as bBack-up
bidder if the Bidder’s Bid is selected as the next highest and best bid after the Successful Bid and
will remain irrevocable in accordance with the terms and conditions of these Bidding
Procedures.
20. Consent to Jurisdiction: Each Bidder and its Bidder Support (if applicable) must
(i) consent to the jurisdiction of the Bankruptcy Court to enter an order or orders, which shall be
binding in all respects, in any way related to the Debtors, these Chapter 11 Cases, the Bidding
Procedures, the Auction, any Sale Transaction, any Modified APA, or the construction and
enforcement of documents relating to any Sale Transaction, (ii) waive any right to a jury trial in
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connection with any disputes relating to the Debtors, these Chapter 11 Cases, the Bidding
Procedures, the Auction, any Sale Transaction, any Modified APA, or the construction and
enforcement of documents relating to any Sale Transaction, and (iii) consent to the entry of a
final order or judgment in any way related to the Debtors, these Chapter 11 Cases, the Bidding
Procedures, the Auction, any Modified APA, any Sale Transaction, or the construction and
enforcement of documents relating to any Sale Transaction if it is determined that the
Bankruptcy Court would lack Article III jurisdiction to enter such a final order or judgment
absent the consent of the parties.
21. Disclaimer of Break-Up Fees and Expense Reimbursement: Except as otherwise
provided below with respect to any potential Stalking Horse Bidder (as defined below), each Bid
must not, and must acknowledge that such Bid shall not, entitle the Bidder to any break-up fee,
termination fee or similar type of payment, compensation or expense reimbursement (including
legal fees) and, by submitting the Bid, the Bidder waives the right to pursue any administrative
expense claim (including under a theory of substantial contribution) under 11 U.S.C. § 503
related in any way to the submission of its Bid or participation in any Auction.
22. Acknowledgement of Remedies: Each Bid shall include a written
acknowledgement from the Bidder that, in the event of the Bidders’ breach of, or failure to
perform under, the Modified APA, the Debtors and their estates shall be entitled to retain the
Good Faith Deposit as part of the damages resulting to the Debtors and their estates for such
breach or failure to perform, and pursue all other available legal and equitable remedies.
23. Acknowledgement of No Collusion: Each Bid shall include a written
acknowledgement from the Bidder that it has not (i) engaged in any collusion with respect to the
bidding or sale of any of the Assets described herein or (ii) taken any other action to prevent a
transparent and competitive auction process.
A Bid received from a Bidder before the Bid Deadline that meets the above requirements
shall constitute a “Qualified Bid,” as determined by the Debtors, in their reasonable business
judgment, and such Bidder shall constitute a “Qualified Bidder;” provided that, if the Debtors
receive a Bid that is not a Qualified Bid, the Debtors may provide (but shall not be obligated to
provide), subject to the consent of the Required DIP Lenders (which consent shall not be
unreasonably withheld), and in consultation with the Committee, the Bidder with the opportunity
to remedy any deficiencies prior to the Auction; provided, further, that if any Qualified Bidder
fails to comply with reasonable requests for additional information and due diligence access
from the Debtors to the satisfaction of the Debtors, and the Required DIP Lenders, then the
Debtors may disqualify any such Qualified Bidder and Qualified Bid, subject to the consent of
the Required DIP Lenders (which consent shall not be unreasonably withheld), and in
consultation with the Committee, and such Bidder shall not be entitled to attend or participate in
the Auction. The Debtors may, subject to the consent of the Required DIP Lenders (which
consent shall not be unreasonably withheld), and in consultation with the Committee, accept a
single Qualified Bid or multiple Bids for non-overlapping material portions of the Assets such
that, if taken together in the aggregate, would otherwise meet the standards for a single Qualified
Bid (in which event those multiple bidders will be treated as a single Qualified Bidder for
purposes of selecting the Successful Bid; provided that the Debtors also reserve the right, subject
to the consent of the Required DIP Lenders (which consent shall not be unreasonably withheld),
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and in consultation with the Committee, to conduct more than one sale process or Auction with
respect to non-overlapping material portions of the Assets). The Debtors shall determine
whether (i) a Bid is or is not a Qualified Bid or (ii) any Qualified Bid or Qualified Bidder should
be disqualified. The Debtors shall have the right, subject to the consent of the Required DIP
Lenders (which consent shall not be unreasonably withheld), and in consultation with the
Committee, to deem a Bid a Qualified Bid even if such Bid does not conform to one or more of
the requirements above; provided that any Bid for all or substantially all of the Debtors’ Assets
that does not include cash consideration of at least $[]140,000,000 may only be deemed a
Qualified Bid with the prior written consent of the Required DIP Lenders , and in consultation
with the Committee. Any Bidder that does not submit a Bid before the Bid Deadline will not be
permitted to submit a Bid after the Bid Deadline or to participate in the Auction unless otherwise
agreed by the Required DIP Lenders, in consultation with the Committee.
For the avoidance of doubt, a Bid or series of Bids shall not constitute a “Qualified Bid”
unless such Bid(s) (a) meets the Minimum Bid Requirement and (b) contemplates that the
aggregate cash sale proceeds of such Bid(s) shall be indefeasibly paid to the DIP Lenders
immediately upon the closing of the Sale Transaction(s) subject to deductions for wind-down
costs and expenses required to be paid pursuant to the DIP Orders and the RSA (which such
deducted amounts shall be paid to the Debtors).
Credit Bidding
The agent under that certain Senior Secured Super-Priority Term Loan
Debtor-In-Possession Credit Agreement to be entered into by and among Vyaire Medical, Inc.,
Vyaire Finance B.V., the lenders party thereto (collectively in such capacities,
the “DIP Lenders”),26 and Wilmington Savings Fund Society, FSB, as administrative agent, and
collateral agent (in such capacities, the “DIP Agent”) (such credit agreement, as amended,
restated, amended and restated, supplemented, waived, or otherwise modified from time to time,
the “DIP Credit Agreement”) and the agents under that certain (i) First Lien Credit Agreement
dated as of April 16, 2018, by and among Vyaire Company, Vyaire Medical, Inc., Vyaire Finance
B.V., each of the other lenders from time to time party thereto (collectively in such capacities,
the “Prepetition First Lien Term Lenders”), and Bank of America, N.A. as administrative agent
and collateral agent (in such capacities, the “Prepetition First Lien Agent”) (such credit
agreement, as amended, restated, amended and restated, supplemented, or otherwise modified
from time to time, the “Prepetition First Lien Credit Agreement”), (ii) Note Purchase Agreement
dated as of May 3, 2019, by and among Holdings, Vyaire Medical, Inc., Vyaire Finance B.V.,
each of the purchasers party thereto (collectively in such capacities, the “Prepetition
Noteholders”), and Wilmington Trust, National Association as notes agent and collateral agent
(in such capacities, the “Prepetition First Lien Notes Agent”) (such note purchase agreement, as
amended, restated, amended and restated, supplemented, or otherwise modified from time to
time, the “Prepetition First Lien Note Purchase Agreement”), and (iii) Second Lien Credit
Agreement dated as of April 16, 2018, by and among Holdings, Vyaire Medical, Inc., Vyaire
Finance B.V., each of the other lenders from time to time party thereto (collectively in such
26
The DIP Lenders holding at least 66.67% of the aggregate outstanding principal amount and commitments of
the DIP Facility at the relevant time of determination shall constitute the “Required DIP Lenders.”
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capacities, the “Prepetition Second Lien Term Lenders”, and together with the Prepetition First
Lien Term Lenders and the Prepetition Noteholders, the “Prepetition Lenders”), Wilmington
Trust, National Association as administrative agent and collateral agent (in such capacities, the
“Prepetition Second Lien Agent”, and together with the Prepetition First Lien Agent and the
Prepetition First Lien Notes Agent, the “Prepetition Agents”) (such credit agreement, as
amended, restated, amended and restated, supplemented, or otherwise modified from time to
time, the “Prepetition Second Lien Credit Agreement”, and together with the Prepetition First
Lien Credit Agreement and the Prepetition First Lien Note Purchase Agreement, the “Prepetition
Credit Agreements”) have liens on all Assets being sold in the Auction, and reserve the right (at
the direction of the applicable Required Lenders or Required Purchasers, as applicable, and each
as defined in the applicable Prepetition Credit Agreement) to credit bid for any or all of the
Assets securing their respective facilities. The DIP Lenders, the DIP Agent, and the Prepetition
Agents shall be permitted, pursuant to section 363(k) of the Bankruptcy Code, to credit bid all or
any portion of the Obligations, under (and as defined in) each of the Prepetition Credit
Agreements, as applicable, to acquire the Assets (each dollar of such obligations that is credit bid
shall be treated the same as a dollar of cash); provided that the DIP Lenders, the Prepetition
Lenders, the Prepetition Agents, and the DIP Agent agree, solely in the event that the Company
receives a Bid or series of Bids by the Bid Deadline that is not less than the Minimum Bid
Requirement, then the DIP Lenders and the DIP Agent shall not credit bid for the Assets.
Notwithstanding anything to the contrary herein, nothing in these Bidding Procedures shall be
considered as a waiver of any other party in interest to object to, or seek to limit, the credit bid
during the Challenge Period under section 363(k) of the Bankruptcy Code; provided, however,
that this reservation of rights is not intended to, and does not, expand or limit the Challenge
Period or the Challenge rights provided for under the DIP Order.
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Potential Stalking Horse
The Debtors may, pursuant to these Bidding Procedures and subject to the consent of the
Required DIP Lenders (which consent shall not be unreasonably withheld), and in consultation
with the Committee, (i) designate one or more Qualified Bidders that submit a Qualified Bid for
all or any portion of the Assets a stalking horse bidder (the “Stalking Horse Bidder”), whose
Qualified Bid shall serve as the stalking horse bid (the “Stalking Horse Bid”), and (ii) execute,
subject to higher or otherwise better offers consistent with these Bidding Procedures, one or
more purchase agreements memorializing the proposed transaction set forth in the Stalking
Horse Bid (a “Stalking Horse APA”), which may include a break-up fee of or no more than for
each Stalking Horse Bidder that shall not exceed the greater of: (a) a break-up fee (a “Break-Up
Fee”) of three percent (3.0%) of the total cash consideration payable under such Stalking Horse
APA, if any, which Break-Up Fee would be inclusive of any expenses reimbursement (incurred
by such Stalking Horse Bidder, and (b) a Break-Up Fee of three percent (3%) of the total cash
consideration payable under such Stalking Horse APA, if any, plus reasonable and documented
expenses (an “Expense Reimbursement,” and together with any Break-Up Fee, the “Bid
Protections”), which Expense Reimbursement shall be no greater than $250,000; provided that,
the sum of the Break-Up Fee and the Expense Reimbursement in this clause (b) shall not exceed
$850,000 in the aggregate, on or before July 11, 2024, at 9:00 p.m., (prevailing Eastern
Time) (the “Stalking Horse Bidder Designation”). To the extent the Debtors, subject to the
consent of the Required DIP Lenders (which consent shall not be unreasonably withheld), and in
consultation with the Committee, designate more than one Stalking Horse Bidder pursuant to the
Bidding Procedures, no two Stalking Horse Bidders will be designated with respect to any of the
same Assets. The Debtors shall not pay Bid Protections to any Stalking Horse Bidder on account
of the portion of the purchase price of such Bid that is a credit bid, assumption of liabilities, or
other non-cash (or cash-equivalent) consideration, nor provide any Bid Protections to an insider
or affiliate of the Debtors.
To the extent the Debtors, consistent with these Bidding Procedures, determine, subject
to the consent of the Required DIP Lenders (which consent shall not be unreasonably withheld),
and in consultation with the Committee, to offer Bid Protections to any Stalking Horse Bidder,
the Debtors shall disclose such Bid Protections in a corresponding notice designation such
Stalking Horse Bidder (the “Stalking Horse Notice”). A Stalking Horse Notice, if filed, shall
also include (a) the identity of the Stalking Horse Bidder; (b) the amount of the Stalking Horse
Bid; (c) a copy of the Stalking Horse APA; (d) the proposed Bid Protections to be provided to
the Stalking Horse Bidder; and (e) a declaration in support of the proposed Bid Protections,
which includes whether the Stalking Horse Bidder has any connection with the Debtors other
than that which arises from the Stalking Horse Bid. For the avoidance of doubt, nothing in the
Bidding Procedures is shifting the Debtors’ burden of proof that the Bid Protections are actually
necessary to preserve the value of the estates pursuant to section 503(b) of the Bankruptcy Code.
Nothing in the Bidding Procedures shall be deemed to award any Bid Protections (i) related to a
credit bid or (ii) in favor of an insider of or affiliate of the Debtors. Any objection to (i) the Bid
Protections set forth in the Stalking Horse Notice or (ii) the designation of the Stalking Horse
Bidder (a “Stalking Horse Objection”), shall be filed no later than fivefour (54) business days
after the filing of the Stalking Horse Notice at 4:00 p.m. (prevailing Eastern Time). If a
timely Stalking Horse Objection is filed, the Debtors are authorized to seek an expedited hearing
with respect to the Stalking Horse Objection on not less than three (3) calendar days’ notice.
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Absent any timeliney Stalking Horse Objection, the Court may enter an order approveing the the
Bid Protections set forth in the Stalking Horse Notice and the designation of the Stalking Horse
Bidder without further hearing.
If the designation of a Stalking Horse Bidder is approved, any Modified APA may be
based on the Stalking Horse APA.
Auction
If one or more Qualified Bids that, individually or in the aggregate, meet the Minimum
Bid Requirement are received by the Bid Deadline, the Debtors will conduct the Auction to
determine, with the consent of the Required DIP Lenders , and in consultation with the
Committee, the highest and best Qualified Bid. The determination of the highest and best
Qualified Bid shall take into account any factors the Debtors in their reasonable business
judgment deem relevant to the value and certainty of the Qualified Bid to the Debtors’ estates
and may include, but are not limited to, the following: (i) the amount and nature of the
consideration; (ii) the number, type, and nature of any changes to the Form APA requested by
each Bidder, including the Assets acquired; (iii) the extent to which such modifications are likely
to delay closing of the Sale Transaction contemplated by such Qualified Bid and the cost to the
Debtors of such modifications or delay; (iv) the total consideration to be received by the Debtors;
(v) any contingencies or conditions to closing the Sale Transaction contemplated by such
Qualified Bid; (vi) the likelihood of the Bidder’s ability to close the Sale Transaction
contemplated by such Qualified Bid and the timing thereof; (vii) the tax consequences of such
Qualified Bid; and (viii) any other qualitative or quantitative factor that the Debtors deem
reasonably appropriate under the circumstances (collectively, the “Bid Assessment Criteria”).
If only one Qualified Bid that meets the Minimum Bid Requirement or no Qualified Bid
that meets the Minimum Bid Requirement is received by the Bid Deadline, the Debtors shall
cancel the Auction. For the avoidance of doubt and notwithstanding anything else herein or in
the Bidding Procedures, if there are no Qualified Bids that, individually or in the aggregate, meet
the Minimum Bid Requirement, the Debtors shall terminate the sale process and cancel the
Auction. For the further avoidance of doubt, a Bid or series of Bid(s) shall not constitute a
“Qualified Bid” unless such Bid(s) (a) meets the Minimum Bid Requirement and
(b) contemplates that the aggregate cash sale proceeds of such Bid(s) shall be indefeasibly paid
to the DIP Lenders immediately upon the closing of the Sale Transaction(s) subject to deductions
for wind-down costs and expenses required to be paid pursuant to the DIP Orders and the RSA
(which such deducted amounts shall be paid to the Debtors).
A. Location and Date of Auction
The Auction, if any, shall take place on or before July 24, 2024, at 10:00 a.m.,
(prevailing Eastern Time) in person at the office of Kirkland & Ellis LLP, 333 West Wolf
Point Plaza, Chicago, IL 60654 and/or via remote video at the Debtors’ election. If held, the
Auction proceedings will be transcribed.
B. Attendees and Participants
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Except as otherwise determined by the Debtors, only the following parties, and their
respective representatives and counsel, may attend the Auction: (i) the Debtors,; (ii) the United
States Trustee,; (iii) the advisors to the Committee; (iv) any Qualified Bidder,; (ivv) advisors to
the DIP Lenders; (vvi) any creditors that request access to the Auction within 48 hours prior to
the date of the Auction, and (vii) any other parties that the Debtors deem appropriate. The
Debtors shall provide all Qualified Bidders with notice of all participants attending the Auction
at least one (1) day prior to the Auction.
Bidders and their representatives may not communicate or coordinate with one another
for purposes of submitting a Bid or Bids or participating in the Auction without the prior consent
of the Debtors. All parties are prohibited from (i) engaging in any collusion with respect to the
bidding or sale of any of the Assets described herein or (ii) taking any other action to prevent a
transparent and competitive auction process.
Each Qualified Bidder participating in the Auction must confirm on the record at the
commencement of the Auction that (i) it has not engaged in any of the prohibited actions set
forth in the immediately preceding paragraph, (ii) its Qualified Bid is a good faith bona fide offer
and it intends to consummate the Sale Transaction contemplated by such Qualified Bid if
selected as the Successful Bidder or Back UpBack-Up Bidder, (iii) it has reviewed, understands
and accepts the Bidding Procedures, and (iv) it has consented to the core jurisdiction of the
Bankruptcy Court with respect to the Sale Transaction, including the Bidding Procedures, the
Auction, any Sale Transaction, any Modified APA, or the construction and enforcement of
documents relating to any Sale Transaction (as described more fully below).
All parties attending the Auction must comply with their applicable confidentiality
agreements.
C. Conducting the Auction
The Debtors and their professionals shall direct and preside over the Auction and the
Auction shall be transcribed and shall be conducted openly. Other than as expressly set forth
herein, the Debtors may conduct the Auction in the manner they determine will result in the
highest and best offer for the Assets so long as such conduct is not inconsistent in any material
respect with the other terms and provisions of these Bidding Procedures.
D. Auction Baseline Bid
The Debtors will notify any other Qualified Bidder participating in the Auction of the
highest and best Qualified Bid received before the Bid Deadline for purposes of constituting the
opening Bid at the Auction (the “Auction Baseline Bid”), and shall provide copies of the
Modified APA and Modified Sale Order (each a “Modified Sale Order”) associated with the
Auction Baseline Bid as soon as practicable (together with the redline copies of such documents,
as described in paragraph CD.1 above) prior to the commencement of the Auction.
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E. Terms of Overbids
An “Overbid” is any bid made at the Auction subsequent to the Debtors’ announcement
of the Auction Baseline Bid. To submit an Overbid for purposes of this Auction, a Bidder must
comply with the following conditions:
1. Minimum Overbid Increments. The Debtors shall determine, with the consent of
the Required DIP Lenders and in consultation with the Committee, the minimum bid increments
for any particular Asset or subset of Assets, if applicable.
2. Terms Are the Same as for Qualified Bids: Except as modified herein, an Overbid
at the Auction must comply with the conditions for a Qualified Bid set forth above; provided,
however, that the DIP Lenders, DIP Agent, and Prepetition Agents shall not be required to
comply with such conditions. Any Overbid must include, in addition to the amount and the form
of consideration of the Overbid, a description of all changes requested by the Bidder to the
Modified APA or Modified Sale Order in connection therewith. Any Overbid must remain open
and binding on the Bidder until (a) the Debtors announce that they have received a higher and
better Overbid and (b) such Overbid is not selected as the Back-Up Bid. To the extent not
previously provided, a Bidder submitting an Overbid at the Auction must submit, as part of its
Overbid, written evidence (in the form of financial disclosure or credit-quality support
information or enhancement reasonably acceptable to the Debtors) reasonably demonstrating
such Bidder’s ability to satisfy the Bidder’s Obligations as set forth in the Qualified Bid
requirements set forth in paragraph CD.10.b. Further, Bidders submitting Overbids may be
required to promptly top up their Good Faith Deposits to equal ten percent (10%) of the cash
purchase price contained in such Overbids.
F. Announcement and Consideration of Overbids
1. Announcement of Overbids: All Overbids shall be made and received on an open
basis. The Debtors shall announce at the Auction the material terms of each Overbid, the total
amount of consideration offered in each such Overbid, and the basis for calculating such total
consideration. The Debtors shall, after submission of each Overbid, promptly inform each
participant in the Auction which Overbid reflects the highest and best Bid, and the Debtors shall
clarify any and all questions that any Qualified Bidder may have regarding such Overbid.
2. Consideration of Overbids: Subject to the deadlines set forth herein, the Debtors
reserve the right, in their own reasonable business judgment, subject to the consent of the
Required DIP Lenders (which consent shall not be unreasonably withheld), and in consultation
with the Committee, to make one or more continuancesadjournments of the Auction to, among
other things: facilitate discussions between the Debtors and individual Qualified Bidders; allow
individual Qualified Bidders to consider how they wish to proceed; or give Qualified Bidders the
opportunity to provide the Debtors with additional evidence that the Qualified Bidder has
sufficient internal resources, or has received sufficient non contingent debt and/or equity funding
commitments, to consummate the proposed Sale Transaction at the prevailing Overbid amount.
G. No Round-Skipping
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To remain eligible to participate in the Auction, in each round of bidding, (i) each
Qualified Bidder must submit an Overbid with respect to such round of bidding and (ii) to the
extent a Qualified Bidder fails to submit an Overbid with respect to such round of bidding, such
Qualified Bidder shall be disqualified from continuing to participate in the Auction.
H. Closing the Auction
The Auction shall continue until there is only one (1) Qualified Bid for the Assets (or one
or more Qualified Bids for discrete portions of the Assets) that the Debtors determine, in their
reasonable business judgment with the consent of the Required DIP Lenders , and in consultation
with the Committee, is (or are) the highest and best Qualified Bid (or Qualified Bids) at the
Auction. Thereafter, the Debtors shall select, with the consent of the Required DIP Lenders, and
in consultation with the Committee, such Qualified Bid(s) that is the best Qualified Bid (each
such Qualified Bid, a “Successful Bid,” and the Qualified Bidder submitting any such Successful
Bid, the “Successful Bidder”), taking into account any factors the Debtors reasonably deem
relevant to the value and certainty of the Qualified Bid(s) to the Debtors’ estates and may
include, but are not limited to, the Bid Assessment Criteria, as the winner of the Auction and, at
the time of such selection, shall announce the identity of each Successful Bidder and the amount
and material terms of each Successful Bid to all attendees at the Auction. Notwithstanding
anything to the contrary hereinFor the avoidance of doubt, no Qualified Bid (other than a credit
bid by one or more DIP Lender, DIP Agent, Prepetition Lender, or Prepetition Agent) may be the
Successful Bid unless such Qualified Bid (which can be a combination of Bids as described
above) provides for payment of consideration at the closing of the Sale Transaction contemplated
by such Qualified Bid in an amount equal to or greater than the aggregate amount of Obligations
as defined in the applicable DIP Credit Agreement and/or Prepetition Credit Agreement that
have been credit bid by, or on behalf of, the DIP Lenders, DIP Agent, and/or the Prepetition
Agents, as applicable. For the avoidance of doubt, no Qualified Bid, as applicable, and subject
to the terms herein) shall be a Successful Bid if such bid does not, individually or together with
another Successful Bid, (a) satisfy the Minimum Bid Requirement and (b) contemplate that the
aggregate cash sale proceeds of such Bid(s) shall be indefeasibly paid to the Required DIP
Lenders immediately upon the closing of the Sale Transaction(s) subject to deductions for wind
down costs and expenses required to be paid pursuant to the DIP Orders and the Restructuring
Support Agreement (which such deducted amounts shall be paid to the Debtors).
The Auction shall not conclude until the Successful Bidder(s) submit(s) fully executed
sale and transaction documents memorializing the terms of the Successful Bid(s); provided that
the foregoing requirement may be waived, extended, or modified by the Debtors with the consent
of the Required DIP Lenders.
Promptly following the Debtors’ selection of the Successful Bid(s) and the conclusion of
the Auction, the Debtors shall file with the Bankruptcy Court notice of the Successful Bid(s) and
Successful Bidder(s), along with the Modified APA and Modified Sale Order reflecting the
Successful Bid(s). The Debtors shall not consider any Bids or Overbids submitted after the
Auction has closed, and any and all Bids or Overbids submitted after the conclusion of the
Auction shall be deemed untimely and shall under no circumstances constitute a Bid or Overbid.
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I. Back-Up Bidder
Notwithstanding anything in these Bidding Procedures to the contrary, if an Auction is
conducted, the Qualified Bidder(s) with the next highest and otherwise best Bid to the Successful
Bid(s) at the Auction for the applicable Assets, as determined by the Debtors, in the exercise of
their reasonable business judgment, subject to the consent of the Required DIP Lenders , and in
consultation with the Committee, will be designated as a back-up bidder (each a “Back-Up
Bidder”). The identity of the Back-Up Bidder(s) and the amount and material terms of the
Back-Up Bid(s) shall be announced by the Debtors at the same time the Debtors announce the
identity of the Successful Bidder(s).
The Back-Up Bidder(s) shall be required to keep its (or their) initial Qualified Bid(s) (or
if a Back UpBack-Up Bidder submitted one or more Overbids at the Auction, such Back
UpBack-Up Bidder’s final Overbid) (each a “Back-Up Bid”) open and irrevocable until the
earlier of (i) the closing of the Sale Transaction contemplated by the applicable Successful Bid
and (ii) 5:00 p.m. (prevailing Eastern Time) on the date that is sixty (60) days after the date of
entry of the Sale Order, which date will be extended for an additional thirty (30) days if the only
condition to closing the applicable Successful Bid on the sixtieth (60th) day after entry of the Sale
Order is satisfaction of regulatory approvals required under the applicable Modified APA.
If a Successful Bid is terminated for any reason prior to consummation of the Sale
Transaction contemplated thereby (a “Successful Bid Failure”), the Debtors will be authorized,
without further order of the Bankruptcy Court, subject to the consent of the Required DIP
Lenders (which consent shall not be unreasonably withheld), and in consultation with the
Committee, to consummate the Sale Transaction contemplated by the applicable Back-Up Bid
with the applicable Back-Up Bidder; provided that the Debtors shall provide prompt notice of
such Successful Bid Failure and the Debtors shall post a notice on the docket of the Chapter 11
Cases regarding the Successful Bid Failure and the consummation of such Sale Transaction with
the applicable Back UpBack-Up Bidder. In the case of a Successful Bid Failure, the Successful
Bidder’s deposit shall be forfeited to the Debtors or returned to the applicable Successful Bidder
in accordance with the terms of the terminated Modified APA. The Debtors, on their behalf and
on behalf of each of their respective estates, specifically reserve the right to seek all available
damages, including specific performance, from any defaulting Successful Bidder (including any
Back UpBack-Up Bidder following a Successful Bid Failure) in accordance with the terms of the
Bidding Procedures, the Bidding Procedures Order, or the Modified APA, as applicable.
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J. Notice of Bid Results
Absent further order or direction of the Court, the Debtors shall file copies of the
following: (a) a notice designating each Successful Bid and the Back-Up Bid, if any, and the
terms of each such bid (the “Successful Bidder Notice”) and (b) final form(s) of order(s)
approving the Sale Transaction(s) as agreed upon between the Debtors and the Successful
Bidder(s) (the “Sale Order(s)”). Further, the Debtors shall serve, by overnight mail, the
Successful Bidder Notice and Sale Order(s), along with any adequate assurance materials, upon
affected Contract Counterparties as soon as reasonably practicable following the conclusion of
the Auction.
K. Sale Hearing and Approval of the Sale Transaction
A hearing to consider the approval of the Sale Transaction (the “Sale Hearing”), is
currently scheduled to take place on July 2931, 2024, at 102:00 ap.m., (prevailing Eastern
Time), before the Honorable []Judge Brendan Linehan Shannon, at the United States
Bankruptcy Court for the District of Delaware, 824 N Market Street, 6th Floor, Courtroom No.
[]1, Wilmington, Delaware 19801 or conducted consistent with the procedures established
pursuant to the Bankruptcy Court.
At the Sale Hearing, certain findings will be sought from the Bankruptcy Court,
including, among other things, that: (1) the Auction was conducted (if held) and each Successful
Bidder was selected, in each case in accordance with the Bidding Procedures; (2) the Auction (if
held) was fair in substance and procedure; (3) the Successful Bid(s) and Back-Up Bid(s) were
Qualified Bids as defined in the Bidding Procedures; and (4) consummation of any Sale
Transaction as contemplated by the Successful Bid(s) in the Auction will provide the highest and
best offer for the Assets and is in the best interests of the Debtors and their estates. The Sale
Hearing may be continued to a later date by the Debtors, subject to the consent of the Required
DIP Lenders (which consent shall not be unreasonably withheld), and in consultation with the
Committee, by sending notice prior to, or making an announcement at, the Sale Hearing (subject
in all cases to approval of the Bankruptcy Court).
All general objections to the Sale Transaction and entry of any Sale Order must (i) be in
writing; (ii) comply with the Bankruptcy Code, Bankruptcy Rules, Local Rules, and all orders of
the Bankruptcy Court; (iii) state with particularity the legal and factual basis for the objection
and the specific grounds therefor; and (iv) be filed with the Bankruptcy Court and served so as to
be actually received by the Debtors and counsel to the Debtors on July 22, 2024, at 4:00 p.m.,
(prevailing Eastern Time).
All Post-Auction Objections must (i) be in writing; (ii) comply with the Bankruptcy
Code, Bankruptcy Rules, Local Rules, and all orders of the Bankruptcy Court; (iii) state with
particularity the legal and factual basis for the objection and the specific grounds therefor; and
(iv) be filed with the Bankruptcy Court and served so as to be actually received by no later than
July 25, 2024, at 4:00 p.m., (prevailing Eastern Time) on the Notice Parties.
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L. Additional Procedures
The Debtors may announce at the Auction additional procedural rules that are reasonable
under the circumstances for conducting the Auction so long as such rules are not inconsistent in
any material respect with the Bidding Procedures and do not impose additional requirements on
the DIP Agent or the Prepetition Agents; provided that any Qualified Bidder, the Required DIP
Lenders, and the Committee shall have the right to request aan emergency telephonic hearing
before the Bankruptcy Court in the event the Qualified Bidder, the Required DIP Lenders, or the
Committee disputes that the proposed additional rule is reasonable or not inconsistent in any
material respect with the Bidding Procedures or does not imposes additional requirements on the
DIP Agent or the Prepetition Agents.
Consent to Jurisdiction and Authority as Condition to Bidding
All Qualified Bidders shall be deemed to have (1) consented to the jurisdiction of the
Bankruptcy Court to enter an order or orders, which shall be binding in all respects, in any way
related to the Debtors, these Chapter 11 Cases, the Bidding Procedures, any Modified APA, the
Auction, any Sale Transaction, or the construction and enforcement of documents relating to any
Sale Transaction, (2) WAIVED ANY RIGHT TO A JURY TRIAL IN CONNECTION WITH
ANY DISPUTES RELATING TO THE DEBTORS, THESE CHAPTER 11 CASES, THE
BIDDING PROCEDURES, THE AUCTION, any Modified APA, ANY SALE
TRANSACTION, OR THE CONSTRUCTION AND ENFORCEMENT OF DOCUMENTS
RELATING TO ANY SALE TRANSACTION, and (3) consented to entry of a final order or
judgment in any way related to the Debtors, these Chapter 11 Cases, the Bidding Procedures, the
Auction, any Modified APA, any Sale Transaction, or the construction and enforcement of
documents relating to any Sale Transaction if it is determined that the Bankruptcy Court would
lack Article III jurisdiction to enter such a final order or judgment absent the consent of the
parties.
Sale Is As Is/Where Is
Except as may be set forth in the Modified APA, the Assets sold pursuant to the Bidding
Procedures shall be conveyed at the closing of such sale in their then present condition, “AS IS,
WITH ALL FAULTS, AND WITHOUT ANY WARRANTY WHATSOEVER, EXPRESS OR
IMPLIED.”
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Return of Good Faith Deposits
The Good Faith Deposits of all Qualified Bidders shall be held in one or more escrow
accounts by the Debtors, but shall not become property of the Debtors’ estates absent further
order of the Bankruptcy Court or as set forth below. The Good Faith Deposit of any Qualified
Bidder that is neither a Successful Bidder nor a Back-Up Bidder shall be returned to such
Qualified Bidder not later than five (5) Business Days after consummation of the Sale
Transaction or upon the permanent withdrawal of the proposed Sale Transaction, in accordance
with these Bidding Procedures. The Good Faith Deposit of a Back-Up Bidder, if any, shall be
returned to such Back-Up Bidder (or retained by the estates) upon the termination of such Back
UpBack-Up Bidder’s Bid in accordance with its terms. If a Successful Bidder timely closes the
Sale Transaction contemplated in the Successful Bid, its Good Faith Deposit shall be credited
towards the purchase price and become property of the estate. If a Successful Bidder (or, if the
Sale Transaction is to be consummated with the applicable Back-Up Bidder, then such Back-Up
Bidder) fails to consummate the Sale Transaction because of a breach or failure to perform on
the part of such Bidder, then the Debtors and their estates shall be entitled to retain the Good
Faith Deposit of such Successful Bidder (or, if the Sale Transaction is to be consummated with a
Back-Up Bidder, then such Back-Up Bidder) as part of the damages resulting to the Debtors and
their estates for such breach or failure to perform. For the avoidance of doubt, the Debtors’
retention of a Good Faith Deposit shall not constitute a waiver of any of the Debtors’ legal or
equitable rights relating to a Successful Bidder’s or a Back-Up Bidder’s breach or failure to
perform, and all such rights and remedies are preserved.
Reservation of Rights of the Debtors and Modifications
Except as otherwise provided in the Bidding Procedures Order, the Debtors further
reserve the right as the Debtors may reasonably determine in their discretion to be in the best
interest of the Debtors’ estates, subject to the consent of the Required DIP Lenders (as set forth
herein) and in consultation with the Committee, to: (i) determine which Bidders are Qualified
Bidders; (ii) determine which Bids are Qualified Bids; provided that, for the avoidance of doubt,
a Bid or series of Bids shall not constitute a “Qualified Bid” unless such Bid(s) (a) meets the
Minimum Bid Requirement and (b) contemplates that the aggregate cash sale proceeds of such
Bid(s) shall be indefeasibly paid to the DIP Lenders immediately upon the closing of the Sale
Transaction(s) subject to deductions for wind-down costs and expenses required to be paid
pursuant to the DIP Orders and the RSA (which such deducted amounts shall be paid to the
Debtors); (iii) determine which Qualified Bid (or Qualified Bids) is the highest and best bid and
which is the next highest and best bid; (iv) reject any Bid that is (a) inadequate or insufficient,
(b) not in conformity with the requirements of the Bidding Procedures or the requirements of the
Bankruptcy Code or (c) contrary to the best interests of the Debtors and their estates; (v) impose
additional terms and conditions with respect to all potential bidders; (vii) make non-material
modifications to the Bidding Procedures; and (viii) implement additional procedural rules with
respect to the conduct of the Auction that the Debtors determine (together with the Bidding
Procedures, the “Auction Rules”), in their reasonable business judgment, will better promote the
goals of the bidding process and are not inconsistent with any Bankruptcy Court order, the
Bankruptcy Code or any rights of the Prepetition Agents under these Bidding Procedures;
provided that nothing herein shall limit any party in interest’s right to file an objection with the
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Bankruptcy Court with respect to any Auction Rules (other than the Bidding Procedures) nor
shall limit the rights to request an emergency telephonic hearing as provided in Section L.
Notwithstanding anything to the contrary in these Bidding Procedures, nothing in these Bidding
Procedures or the Bidding Procedures Order shall require the Debtors to take any action or to
refrain from taking any action related to any Sale Transaction to the extent taking or failing to
take such action would be inconsistent with applicable law or the Debtors’ fiduciary obligations,
if any, under applicable law; provided, however, that the Debtors shall promptly provide any
Qualified Bidders and, the Required DIP Lenders, and the Committee with notice of such action
or inaction and, to the extent any such action or inaction would constitute a material change from
the Bidding Procedures, the Debtors shall first seek approval from the Bankruptcy Court for such
action or inaction.
I. NOTICING
A. Bid Notice Parties
Qualified Bids must be submitted in writing to the following parties (collectively, the “Bid
Notice Parties”):
the Debtors, c/o Vyaire Medical, Inc., 26125 North Riverwoods Boulevard, Mettawa, Illinois
60045 (Attn: Rachel Lisenby); and
proposed co-counsel for the Debtors, Kirkland & Ellis LLP, 601 Lexington Avenue, New
York, New York 10022, (Attn.: Joshua A. Sussberg, P.C. (joshua.sussberg@kirkland.com),
and Chris Ceresa (chris.ceresa@kirkland.com)); and Kirkland & Ellis LLP, 333 West Wolf
Point Plaza, Chicago, Illinois 60654, (Attn.: Spencer A. Winters, P.C.
(spencer.winters@kirkland.com) and Yusuf U. Salloum (yusuf.salloum@kirkland.com)); and
Cole Schotz P.C., 500 Delaware Avenue, Suite 1410, Wilmington, Delaware 19801, (Attn:
Patrick J. Reilley, Esq. (preilley@coleschotz.com), Stacy L. Newman
(snewman@coleschotz.com), Michael E. Fitzpatrick, Esq. (mfitzpatrick@coleschotz.com),
and Jack M. Dougherty, Esq. (jdougherty@coleschotz.com)), and Court Plaza North, 25
Main Street, Hackensack, New Jersey 07601, (Attn.: Michael D. Sirota, Esq.
(msirota@coleschotz.com)).;
proposed counsel to the Committee, McDermott Will & Emery LLP, One Vanderbilt
Avenue, New York, NY 10017-3852 (Attn: Darren Azman (dazman@mwe.com) and Kristin
Going (kgoing@mwe.com)) and McDermott Will & Emery LLP, The Brandywine Building,
1000 N. West Street, Suite 1400, Wilmington, Delaware 19801 (Attn.: David Hurst
(dhurst@mwe.com) and Maris Kandestin (mkandestin@mwe.com)); and
proposed financial advisor to the Committee, Berkeley Research Group, LLC, 250 Pehle
Avenue, Suite 301, Saddle Brook, NJ 07663 (Attn: David Galfus (dgalfus@thinkbrg.com)
and Ron Zaidman (rzaidman@thinkbrg.com)) and Berkeley Research Group, LLC, 1800 M
Street, NW, Suite 200, Washington, DC 20036 (Attn: Edward Buthusiem
(ebuthusiem@thinkbrg.com)).
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B. Sale Notice Parties
The “Sale Notice Parties” shall include the following persons and entities:
counsel to any Stalking Horse Bidder;
all persons and entities known by the Debtors to have expressed an interest to the Debtors in
a Sale Transaction involving any of the Assets during the past 12 months, including any
person or entity that has submitted a Bid for any of the Assets;
all persons and entities known by the Debtors to have asserted any lien, claim, interest or
encumbrance in the Assets (for whom identifying information and addresses are available to
the Debtors), including, for the avoidance of doubt, the DIP Agent (on behalf of the DIP
Lenders) and the Prepetition Agent (on behalf of the Prepetition Lenders);
co-counsel to the DIP Lenders, Gibson, Dunn & Crutcher LLP, 200 Park Avenue, New York,
NY 10166-0193 (Attn: Scott J. Greenberg (sgreenberg@gibsondunn.com), Jason Zachary
Goldstein (jgoldstein@gibsondunn.com), Joshua Brody (jbrody@gibsondunn.com), and
Kevin Liang (KLiang@gibsondunn.com)) and Pachulski Stang Ziehl & Jones LLP, 919
North Market Street, 17th Floor, Wilmington, DE 19801 (Attn: Laura Davis Jones
(ljones@pszjlaw.com));
proposed counsel to the Committee, McDermott Will & Emery LLP, One Vanderbilt
Avenue, New York, NY 10017-3852 (Attn: Darren Azman (dazman@mwe.com) and Kristin
Going (kgoing@mwe.com)) and McDermott Will & Emery LLP, The Brandywine Building,
1000 N. West Street, Suite 1400, Wilmington, Delaware 19801 (Attn.: David Hurst
(dhurst@mwe.com) and Maris Kandestin (mkandestin@mwe.com));
all relevant non-Debtor parties (each, a “Counterparty”) to any Contract that may be assumed
or rejected in connection with a Sale Transaction;
all of the Debtors’ known creditors (for whom identifying information and addresses are
available to the Debtors);
all of the Debtors’ equity holders;
any governmental authority known to have a claim against the Debtors in these Chapter 11
Cases;
the office of the U.S. Trustee;
all applicable federal, state and local taxing authorities, including the Internal Revenue
Service;
the United States Securities and Exchange Commission;
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the United States Attorney’s Office for the District of Delaware;
United States Attorney General’s Office for the District of Delaware;
the Office of the Attorney General and the Secretary of State in each state in which the
Debtors operate;
all of the parties entitled to notice pursuant to Bankruptcy Rule 2002; and
all other parties as directed by the Court.
C. Sale Notice and Publication Notice
Within two (2) business days after entry of the Bidding Procedures Order, or as soon as
reasonably practicable thereafter, the Debtors will file with the Court, serve on the Sale Notice
Parties, and, as described below, cause to be published on the Claims Agent Website a notice
(the “Sale Notice”) setting forth (A) a description of the Assets available for sale in accordance
with these Bidding Procedures, (B) the date, time and location of the Auction and Sale Hearing,
(C) the Sale Transaction Objection Deadline and Post- Auction Objection Deadline (each as
defined in Section X.D below) and the procedures for filing such objections, and, if applicable,
(D) a summary of the material terms of any Stalking Horse Agreement, including the terms and
conditions of any termination payment or expense reimbursement to be provided thereunder, as
of the date of the Sale Notice.
As soon as reasonably practicable after entry of the Bidding Procedures Order, the
Debtors will provide notice of the Sale Hearing through the publication of the Sale Notice, on
the website of the Debtors’ proposed noticing and claims agent to be retainedappointed in
these chapter 11 cases, Omni, at www.omniagentsolutions.com/Vyaire. Within four (4)
business days after entry of the Bidding Procedures Order, or as soon as reasonably
practicable thereafter, the Debtors will provide notice of the Sale Hearing through publication
of the Sale Notice, with any modifications necessary for ease of publication, once in The New
York Times (national edition) (the “Publication Notice”).
D. Sale Objections and, Post-Auction Objections, and Adequate Assurance
Objections
General Oobjections to a sale of the Assets, including (i) any objection to a sale of the
Assets free and clear of all liens, claims, interests, and encumbrances pursuant to section 363(f)
of the Bankruptcy Code and (ii) entry of any Sale Order shall, by no later than July 22, 2024, at
4:00 p.m., (prevailing Eastern Time) (the “Sale Transaction Objection Deadline”), be filed
with the Court and served on the following parties (collectively, the “Objection Notice Parties”):
the Debtors, c/o Vyaire Medical, Inc., 26125 North Riverwoods Boulevard, Mettawa, Illinois
60045 (Attn: Rachel Lisenby);
27
Case 24-11217-BLS Doc 233-2 Filed 07/09/24 Page 53 of 71
proposed co-counsel for the Debtors, Kirkland & Ellis LLP, 601 Lexington Avenue, New
York, New York 10022, (Attn.: Joshua A. Sussberg, P.C. (joshua.sussberg@kirkland.com)
and Chris Ceresa (chris.ceresa@kirkland.com)); and Kirkland & Ellis LLP, 333 West Wolf
Point Plaza, Chicago, Illinois 60654, (Attn.: Spencer A. Winters, P.C.
(spencer.winters@kirkland.com), Yusuf U. Salloum (yusuf.salloum@kirkland.com), and
Rebecca Marston (rebecca.marston@kirkland.com)); and Cole Schotz P.C., 500 Delaware
Avenue, Suite 1410, Wilmington, Delaware 19801, (Attn: Patrick J. Reilley, Esq.
(preilley@coleschotz.com), Stacy L. Newman (snewman@coleschotz.com), Michael E.
Fitzpatrick, Esq. (mfitzpatrick@coleschotz.com), and Jack M. Dougherty, Esq.
(jdougherty@coleschotz.com)), and Court Plaza North, 25 Main Street, Hackensack, New
Jersey 07601, (Attn.: Michael D. Sirota, Esq. (msirota@coleschotz.com));
co-counsel to the DIP Lenders, Gibson, Dunn & Crutcher LLP, 200 Park Avenue, New York,
NY 10166-0193 (Attn: Scott J. Greenberg (SGreenberg@gibsondunn.com), Jason Zachary
Goldstein (JGoldstein@gibsondunn.com), Joshua Brody (JBrody@gibsondunn.com), and
Kevin Liang (KLiang@gibsondunn.com) and Pachulski Stang Ziehl & Jones LLP, 919 North
Market Street, 17th Floor, Wilmington, DE 19801 (Attn: Laura Davis Jones
(ljones@pszjlaw.com));
proposed counsel to the Committee, McDermott Will & Emery LLP, One Vanderbilt
Avenue, New York, NY 10017-3852 (Attn: Darren Azman (dazman@mwe.com) and Kristin
Going (kgoing@mwe.com)) and McDermott Will & Emery LLP, The Brandywine Building,
1000 N. West Street, Suite 1400, Wilmington, Delaware 19801 (Attn.: David Hurst
(dhurst@mwe.com) and Maris Kandestin (mkandestin@mwe.com));
counsel for any relevant Successful Bidder(s); and
counsel for any relevant Backu-Up Bidder(s).
Following service of the Notice of Auction Results, Sale Notice Parties may object to the
conduct of the Auction and/or the particular terms of any proposed Sale Transaction in a
Successful Bid, other than with respect to a Stalking Horse Bid (each such objection, a
“Post-Auction Objection”) by no later than later of (i) July 25, 2024, at 4:00 p.m., (prevailing
Eastern Time) and (ii) three (3) days prior to the Sale Hearing (the “Post-Auction Objection
Deadline”). Each Post-Auction Objection shall be filed with the Court and served on the
Objection Notice Parties.
Following service of the Successful Bidder Notice, parties may object to the adequate
assurance of future performance of the applicable Successful Bidder or Back-Up Bidder (each
such objection, an “Adequate Assurance Objection”). Any Adequate Assurance Objection must
(a) be in writing, (b) state, with specificity, the legal and factual bases thereof, and (c) be filed
with the Court and served so as to be actually received by no later than July 29, 2024 at 4:00
p.m. (prevailing Eastern Time) on the Notice Parties; provided that, to the extent not
consensually resolved, any Adequate Assurance Objection may be set for hearing at a date and
time following the Sale Hearing.
28
Case 24-11217-BLS Doc 233-2 Filed 07/09/24 Page 54 of 71
EXHIBIT 2
Sale Notice
Case 24-11217-BLS Doc 233-2 Filed 07/09/24 Page 55 of 71
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 BIDDING PROCEDURES, AUCTION, AND SALE HEARING
PLEASE TAKE NOTICE that on June 9, 2024, the above-captioned debtors and certain
of its subsidiaries (collectively, the “Debtors”) filed the Motion of the Debtors for Entry of an
Order (I) Approving Bidding Procedures in Connection with the Sale of Substantially All of the
Debtors’ Assets, (II) Authorizing the Debtors to Enter Into a Stalking Horse Agreement and
Provide Bid Protections, (III) Approving the Form and Manner of Notice Thereof,
(IV) Scheduling an Auction and Sale Hearing, (IV) Approving Procedures for the Assumption
and Assignment of Contracts, (V) Approving the Sale of the Debtors’ Assets Free and Clear, and
(VI) Granting Related Relief [Docket No. [●]16] (the “Sale Motion”)2 with the United States
Bankruptcy Court for the District of Delaware (the “Court”) seeking, among other things, entry
of an order (the “Sale Order”) authorizing and approving: (a) the sale or sales of all,
substantially all, or any portion of the Debtors’ assets, free and clear of liens, claims,
encumbrances, and other interests, except as set forth in the applicable Stalking Horse
Agreement, if any, or an alternative asset purchase agreement with a Successful Bidder for up to
substantially all the assets of the Debtors (the “Sale”); and (b) the assumption and assignment of
certain executory contracts and unexpired leases (collectively, the “Contracts”).
PLEASE TAKE FURTHER NOTICE that the Debtors are soliciting offers for the
purchase of some, all, or substantially all of the assets of the Debtors’ assets, including bids
exclusively for the assets of the Debtors’ Ventilation business and exclusively for the assets of
the Debtors’ Respiratory Diagnostics business, as well as bids on any combination up to all of
the Debtors’ assets, consistent with the bidding procedures (the “Bidding Procedures”) approved
by the Court by entry of an order on [●]July [●], 2024 [Docket No. [●]]
(the “Bidding Procedures Order”). All interested bidders should carefully read the Bidding
Procedures and Bidding Procedures Order. To the extent that there are any inconsistencies
1
The last four digits of Debtor Vyaire Medical, Inc.’s federal tax identification number are 6495. A complete list
of each of the Debtors in these chapter 11 cases and each such Debtor’s federal tax identification number may
be obtained on the website of the Debtors’ proposed claims and noticing agent at
https://omniagentsolutions.com/Vyaire. The location of Debtor Vyaire Medical, Inc.’s principal place of
business and the Debtors’ service address in these chapter 11 cases is 26125 North Riverwoods Boulevard,
Mettawa, Illinois, USA 60045.
2
Capitalized terms used herein but not otherwise defined shall have the meanings ascribed to such terms in the
Sale Motion or Bidding Procedures Order, as applicable.
Case 24-11217-BLS Doc 233-2 Filed 07/09/24 Page 56 of 71
between this notice and the Bidding Procedures or Bidding Procedures Order, the Bidding
Procedures or Bidding Procedures Order, as applicable, shall govern in all respects.
PLEASE TAKE FURTHER NOTICE that, if the Debtors so choose to designate one
or more stalking horse bidders, the deadline for designating a stalking horse bidder is on or
before July 11, 2024, at 4:00 p.m., (prevailing Eastern Time) 3 (the “Stalking Horse Bidder
Designation Deadline”).
PLEASE TAKE FURTHER NOTICE that, if the Debtors so choose to designate one
or more stalking horse bidders, any objection to Bid Protections set forth in (i) the Stalking
Horse Notice, or (ii) the form of Stalking Horse Order (a “Stalking Horse Objection”), shall be
filed no later than four (4) days after the filing of the Stalking Horse Notice at 4:00 p.m.,
(prevailing Eastern Time) (the “Stalking Horse Objection Deadline”).
PLEASE TAKE FURTHER NOTICE that, if the Debtors receive qualified competing
bids within the requirements and time frame specified by the Bidding Procedures, the Debtors
will conduct an auction (the “Auction”) of the Assets on July 24, 2024, at 10:00 a.m.,
(prevailing Eastern Time) virtually through an online platform (or at any other location or
electronically as the Debtors may hereafter designate).
PLEASE TAKE FURTHER NOTICE that the Debtors will seek approval of the Sale
at a hearing scheduled to commence on July 2931, 2024, at 102:00 ap.m., (prevailing Eastern
Time) (the “Sale Hearing”) before the Honorable [●]Judge Brendan L. Shannon, United States
Bankruptcy Judge for the Bankruptcy Court for the District of Delaware, 824 North Market
Street, 3rd Floor, Courtroom No. [●]1, Wilmington, Delaware 19801.
PLEASE TAKE FURTHER NOTICE that, except as otherwise set forth in the Bidding
Procedures Order, including with respect to any objections to proposed cure amounts or the
assumption and assignment of Contracts, objections to the relief requested in the Sale Motion
must: (a) be in writing; (b) conform to the applicable provisions of the Bankruptcy Rules and
the Local Rules; (c) state with particularity the legal and factual bases for the objection and the
specific grounds therefor; and (d) be filed with the Court and served so as to be actually received
on or within fourteen (14) days following service of any notice of proposed assumption and
assignment by the parties in the table below.
PLEASE TAKE FURTHER NOTICE that, except as otherwise set forth in the Bidding
Procedures Order, any objections to the Sale Transaction, or the relief requested in the Sale
Motion must: (a) be in writing; (b) conform to the applicable provisions of the Bankruptcy
Rules and the Local Rules; (c) state with particularity the legal and factual bases for the objection
and the specific grounds therefor; and (d) be filed with the Court and served so as to be
actually received on or before the Sale Transaction Objection Deadline, on July 22, 2024 at
4:00 p.m. (prevailing Eastern Time), by the parties below.
3
The Debtors reserve the right, with consent of the DIP Lenders, and in accordance with the Bidding Procedures
or the Bidding Procedures Order, to file notice on the docket to update key dates and deadlines.
2
Case 24-11217-BLS Doc 233-2 Filed 07/09/24 Page 57 of 71
PLEASE TAKE FURTHER NOTICE that, except as otherwise set forth in the Bidding
Procedures Order, any objections to the auction proceedingsSale Transaction, but solely as to (i)
the conduct of the Auction, (ii) the particular terms of any proposed Sale Transaction in a
Successful Bid, (iii) the identity of a Successful Bidder or Back-Up Bidder, or the relief
requested in the Sale Motion must: (a) be in writing; (b) conform to the applicable provisions of
the Bankruptcy Rules and the Local Rules; (c) state with particularity the legal and factual bases
for the objection and the specific grounds therefor; and (d) be filed with the Court and served so
as to be actually received on or before the Post-Auction Objection and Sale Transaction
Objection Deadlines, on July 25, 2024, at 4:00 p.m., (prevailing Eastern Time) and July 22,
2024 at 4:00 p.m. (prevailing Eastern Time), respectively, by the parties below:.
PLEASE TAKE FURTHER NOTICE that, except as otherwise set forth in the Bidding
Procedures Order, any objection to the adequate future performance of the applicable Successful
Bidder or Back-Up Bidder must: (a) be in writing, (b) state, with specificity, the legal and factual
bases thereof, and (c) be filed with the Court and served so as to be actually received by no later
than July 29, 2024 at 4:00 p.m. (prevailing Eastern Time) on the Notice Parties; provided
that, to the extent not consensually resolved, any Adequate Assurance Objection may be set for
hearing at a date and time following the Sale Hearing.
[Proposed] Co-Counsel to the Debtors [Proposed] Co-Counsel to the Debtors
Cole Schotz, P.C.
Kirkland & Ellis LLP 500 Delaware Avenue, Suite 1410
601 Lexington Ave Wilmington, Delaware 19801
New York, New York 10022 Attn: Patrick J. Reilley, Esq.
Attn. Joshua A. Sussberg, P.C. Email: preilley@coleschotz.com
Chris Ceresa
Email: joshua.sussberg@kirkland.com Cole Schotz, P.C.
chris.ceresa@kirkland.com Court Plaza North, 25 Main Street
Hackensack, New Jersey 07601
Kirkland & Ellis LLP Attn: Michael D. Sirota, Esq.
333 West Wolf Point Plaza Email: msirota@coleschotz.com
Chicago, Illinois 60654
Attn.: Spencer Winters, P.C.
Yusuf U. Salloum
Email: spencer.winters@kirkland.com
yusuf.salloum@kirkland.com
Counsel to the Stalking Horse BidderThe United
States Trustee
Office of the United States Trustee
for the District of Delaware
844 King Street, Suite 2207, Lockbox 35,
Wilmington, Delaware 19801
Attn. Benjamin A. Hackman
Benjamin.A.Hackman@usdoj.gov
[●]
[Street Address]
[City],[State][Zip Code]
Attn.: [●]
Email: [●]
3
Case 24-11217-BLS Doc 233-2 Filed 07/09/24 Page 58 of 71
CONSEQUENCES OF FAILING TO TIMELY MAKE AN OBJECTION
ANY PARTY OR ENTITY WHO FAILS TO TIMELY MAKE AN OBJECTION
TO THE SALE ON OR BEFORE THE SALE OBJECTION DEADLINE IN
ACCORDANCE WITH THE BIDDING PROCEDURES ORDER SHALL BE FOREVER
BARRED FROM ASSERTING ANY OBJECTION TO THE SALE, INCLUDING WITH
RESPECT TO THE TRANSFER OF THE DEBTORS’ ASSETS FREE AND CLEAR OF
ALL LIENS, CLAIMS, ENCUMBRANCES, AND OTHER INTERESTS, EXCEPT AS
SET FORTH IN THE APPLICABLE PURCHASE AGREEMENT.
PLEASE TAKE FURTHER NOTICE that copies of the Sale Motion,
Bidding Procedures, and Bidding Procedures Order, as well as all related exhibits, is available:
(a) free of charge upon request to Omni Agent Solutions, Inc. (the notice and claims agent
retained in these chapter 11 cases) by calling (866) 956-2140 (U.S./Canada) or (818) 666-3635
(International); (b) by visiting the website maintained in these chapter 11 cases at
https://omniagentsolutions.com/Vyaire; or (c) for a fee via PACER by visiting
http://www.deb.uscourts.gov.
PLEASE TAKE FURTHER NOTICE that you may obtain additional information
concerning the above-captioned chapter 11 cases at the website maintained in these
chapter 11 cases at https://omniagentsolutions.com/Vyaire.
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. (admitted 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. (admitted pro hac vice
admission pending)
Warren A. Usatine, Esq (admitted pro hac vice Spencer A. Winters, P.C. (admitted pro hac vice admission
admission pending) pending)
Court Plaza North, 25 Main Street Yusuf U. Salloum (admitted pro hac vice admission
pending)
Hackensack, New Jersey 07601 333 West Wolf Point Plaza
Telephone: (201) 489-3000 Chicago, Illinois 60654
4
Case 24-11217-BLS Doc 233-2 Filed 07/09/24 Page 59 of 71
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
5
Case 24-11217-BLS Doc 233-2 Filed 07/09/24 Page 60 of 71
EXHIBIT 3
Potentially Assumed and Assigned Contract Notice
Case 24-11217-BLS Doc 233-2 Filed 07/09/24 Page 61 of 71
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)]
)
FIRST NOTICE TO CONTRACT PARTIES OF POTENTIALLY
ASSUMED AND ASSIGNED EXECUTORY CONTRACTS AND UNEXPIRED LEASES
YOU ARE RECEIVING THIS NOTICE BECAUSE YOU
OR ONE OF YOUR AFFILIATES IS A COUNTERPARTY TO AN
EXECUTORY CONTRACT OR UNEXPIRED LEASE WITH ONE OR MORE
OF THE DEBTORS AS SET FORTH ON EXHIBIT A ATTACHED HERETO.
PLEASE TAKE NOTICE that on [●] [●], 2024, the United States Bankruptcy Court for
the District of Delaware (the “Court”) entered the Order (I) Approving Bidding Procedures in
Connection with the Sale of Substantially All of the Debtors’ Assets, (II) Authorizing the Debtors
to Enter into a Stalking Horse Agreement and Provide Bid Protections, (III) Approving the Form
and Manner of Notice Thereof, (IV) Scheduling an Auction and Sale Hearing, (V) Approving
Procedures for the Assumption and Assignment of Contracts, (VI) Approving the Sale of the
Debtors’ Assets Free and Clear, and (VII) Granting Related Relief [Docket No. [●]]
(the “Bidding Procedures Order”),2 authorizing the Debtors to conduct an auction
(the “Auction”) under certain circumstances to select the party to purchase the Debtors’ assets.
The Auction will be governed by the bidding procedures approved pursuant to the Bidding
Procedures Order (attached to the Bidding Procedures Order as Exhibit 1, the “Bidding
Procedures”).
PLEASE TAKE FURTHER NOTICE that, pursuant to the Bidding Procedures and the
terms of any Successful Bid, the Debtors may assume and assign to the Successful Bidder the
contracts or agreements listed on Exhibit A (each, a “Potentially Assumed and Assigned
Contract”) to which you are a counterparty, upon approval of the Sale. The Debtors have
conducted a review of their books and records and have determined that the cure amount for
1
The last four digits of Debtor Vyaire Medical, Inc.’s federal tax identification number are 6495. A complete list
of each of the Debtors in these chapter 11 cases and each such Debtor’s federal tax identification number may
be obtained on the website of the Debtors’ proposed claims and noticing agent at
https://omniagentsolutions.com/Vyaire. The location of Debtor Vyaire Medical, Inc.’s principal place of
business and the Debtors’ service address in these chapter 11 cases is 26125 North Riverwoods Boulevard,
Mettawa, Illinois, USA 60045.
2
All capitalized terms used but not otherwise defined herein shall have the meaning ascribed to them in the
Bidding Procedures Order or the Sale Motion (as defined in the Bidding Procedures Order), as applicable.
Case 24-11217-BLS Doc 233-2 Filed 07/09/24 Page 62 of 71
unpaid monetary obligations under such Potentially Assumed and Assigned Contracts is as set
forth on Exhibit A attached hereto (the “Cure Amounts”).
PLEASE TAKE FURTHER NOTICE that if you disagree with the proposed Cure
Amounts, object to a proposed assignment to the Successful Bidder of any Potentially Assumed
and Assigned Contract, your objection must: (i) be in writing; (ii) comply with the applicable
provisions of the Bankruptcy Rules, Local Bankruptcy Rules, and any order governing the
administration of these chapter 11 cases; (iii) state with specificity the nature of the objection
and, if the objection pertains to the proposed Cure Amounts, state the correct cure amount
alleged to be owed to the objecting Contract Counterparty, together with any applicable and
appropriate documentation in support thereof; and (iv) be filed with the Court and served and
actually received within fourteen (14) calendar days after service of the this notice
(the “Assumption and Assignment Objection Deadline”) by the Court and the following
parties: (i) [proposed] co-counsel for the Debtors, Kirkland & Ellis LLP, 601 Lexington
Avenue, New York, New York 10022, Attn.: Joshua A. Sussberg, P.C.
(joshua.sussberg@kirkland.com) and Chris Ceresa (chris.ceresa@kirkland.com), and Kirkland &
Ellis LLP, 333 West Wolf Point Plaza, Chicago, Illinois 60654, Attn.: Spencer A. Winters, P.C.
(spencer.winters@kirkland.com), Yusuf U. Salloum (yusuf.salloum@kirkland.com), and
Rebecca Marston (rebecca.marston@kirkland.com); (ii) [proposed] co˗counsel to the Debtors,
Cole Schotz P.C., 500 Delaware Avenue, Suite 1410, Wilmington, Delaware 19801, Attn:
Patrick J. Reilley, Esq. (preilley@coleschotz.com), Michael E. Fitzpatrick, Esq.
(mfitzpatrick@coleschotz.com), and Jack M. Dougherty, Esq. (jdougherty@coleschotz.com),
and Cole Schotz P.C., Court Plaza North, 25 Main Street, Hackensack, New Jersey 07601, Attn.:
Michael D. Sirota, Esq. (msirota@coleschotz.com); and (iii) the Debtors’ [proposed] investment
banker, PJT Partners LP, 280 Park Avenue, New York, New York 10017, Attn: Michael
Schlappig (schlappig@pjtpartners.com), Jaimie Baird (baird@pjtpartners.com), and Dylan
Friesner (friesner@pjtpartners.com) (viv) counsel to the 1L Ad Hoc Group, (a) Gibson, Dunn &
Crutcher LLP, 200 Park Avenue, New York, NY 10166-0193, Attn.: Scott J. Greenberg
(SGsgreenberg@gibsondunn.com), Jason Zachary Goldstein (JGjgoldstein@gibsondunn.com),
Joshua Brody (JBjbrody@gibsondunn.com), and Kevin Liang (KLkliang@gibsondunn.com) and
(b) Pachulski Stang Ziehl & Jones LLP, 919 North Market Street, 17th Floor, Wilmington, DE
19801, Attn.: Laura Davis Jones (ljones@pszjlaw.com); (v) proposed counsel to the Committee,
McDermott Will & Emery LLP, One Vanderbilt Avenue, New York, NY 10017-3852, Attn:
Darren Azman (dazman@mwe.com) and Kristin Going (kgoing@mwe.com), and McDermott
Will & Emery LLP, The Brandywine Building, 1000 N. West Street 1400, Wilmington,
Delaware 19801, Attn: David Hurst (dhurst@mwe.com) and Maris Kandestin
(mkandestin@mwe.com); (vi) the United States Trustee, 844 King Street, Suite 2207,
Lockbox 35, Wilmington, Delaware 19801, Attn.: Benjamin A. Hackman
(Bbenjamin.A..a.Hhackman@usdoj.gov).
PLEASE TAKE FURTHER NOTICE that no later than July 24, 2024,3 or as soon as
reasonably practicable after the close of the Auction, the Debtors shall (a) file the Successful
Bidder Notice with the Court (which notice shall identify the Successful Bidder, the amount of
3
The Debtors reserve the right, with consent of the DIP Lenders, and in accordance with the Bidding Procedures
or the Bidding Procedures Order, to file notice on the docket to update key dates and deadlines.
2
Case 24-11217-BLS Doc 233-2 Filed 07/09/24 Page 63 of 71
the Successful Bid, the Back-Up Bid, and the amount of the Back-Up Bid(s), and include the
final form(s) of the Sale Order(s)), and (b) cause the Successful Bidder Notice to be published on
the Debtors’ restructuring website, https://omniagentsolutions.com/Vyaire. Further, the Debtors
shall serve, by overnight mail, the Successful Bidder Notice and Sale Order(s), along with any
adequate assurance materials, upon affected Contract Counterparties as soon as reasonably
practicable following the conclusion of the Auction.
PLEASE TAKE FURTHER NOTICE that if you object to the conduct of the Auction and/or
the particular terms of any proposed Sale Transaction in a Successful Bid, other than with respect
to a Stalking Horse Bid, your objection must: (i) be in writing; (ii) comply with the Bankruptcy
Code, Bankruptcy Rules, Local Rules, and all orders of the Bankruptcy Court; (iii) state with
particularity the legal and factual basis for the objection and the specific grounds therefor; and
(iv) be filed with the Bankruptcy Court and served and actually received no later than July 25,
2024, at 4:00 p.m. (prevailing Eastern Time) (the “Post-Auction Objection Deadline”) by
the following parties: by the Court and the following parties: (i) [proposed] co-counsel for the
Debtors, Kirkland & Ellis LLP, 601 Lexington Avenue, New York, New York 10022, Attn.:
Joshua A. Sussberg, P.C. (joshua.sussberg@kirkland.com) and Chris Ceresa
(chris.ceresa@kirkland.com), and Kirkland & Ellis LLP, 333 West Wolf Point Plaza,
Chicago, Illinois 60654, Attn.: Spencer A. Winters, P.C. (spencer.winters@kirkland.com),
Yusuf U. Salloum (yusuf.salloum@kirkland.com), and Rebecca Marston
(rebecca.marston@kirkland.com); (ii) [proposed] co˗counsel to the Debtors, Cole Schotz P.C.,
500 Delaware Avenue, Suite 1410, Wilmington, Delaware 19801, Attn: Patrick J. Reilley, Esq.
(preilley@coleschotz.com), Michael E. Fitzpatrick, Esq. (mfitzpatrick@coleschotz.com), and
Jack M. Dougherty, Esq. (jdougherty@coleschotz.com), and Cole Schotz P.C., Court Plaza
North, 25 Main Street, Hackensack, New Jersey 07601, Attn.: Michael D. Sirota, Esq.
(msirota@coleschotz.com); and (iii) the Debtors’ [proposed] investment banker, PJT Partners
LP, 280 Park Avenue, New York, New York 10017, Attn: Michael Schlappig
(schlappig@pjtpartners.com), Jaimie Baird (baird@pjtpartners.com), and Dylan Friesner
(friesner@pjtpartners.com).
PLEASE TAKE FURTHER NOTICE that, except as otherwise set forth in the Bidding
Procedures Order, any objection to the adequate future performance of the applicable Successful
Bidder or Back-Up Bidder must: (a) be in writing, (b) state, with specificity, the legal and factual
bases thereof, and (c) be filed with the Court and served so as to be actually received by no later
than July 29, 2024 at 4:00 p.m. (prevailing Eastern Time) on the Notice Parties; provided that,
to the extent not consensually resolved, any Adequate Assurance Objection may be set for
hearing at a date and time following the Sale Hearing.
PLEASE TAKE FURTHER NOTICE that if no objection to (a) the Cure Amounts(s),
(b) the proposed assignment and assumption of any Potentially Assumed and Assigned Contract,
or (c) adequate assurance of the Successful Bidder’s ability to perform is filed by the Contract
Objection Deadline, then (i) you will be deemed to have stipulated that the Cure Amounts as
determined by the Debtors are correct, (ii) you will be forever barred, estopped, and enjoined
from asserting any additional cure amount under the proposed Potentially Assumed and
Assigned Contract, and (iii) you will be forever barred, estopped, and enjoined from objecting to
such proposed assignment to the Successful Bidder on the grounds that the Successful Bidder
has not provided adequate assurance of future performance as of the closing date of the Sale.
3
Case 24-11217-BLS Doc 233-2 Filed 07/09/24 Page 64 of 71
PLEASE TAKE FURTHER NOTICE that any objection to the proposed assumption
and assignment of a Potentially Assumed and Assigned Contract or related Cure Amounts in
connection with the Successful Bid that otherwise complies with these procedures yet remains
unresolved as of the commencement of the Sale Hearing, shall be heard separately from the Sale
Hearing at a later date as may be fixed by the Court.
PLEASE THAT FURTHER NOTICE that, notwithstanding anything herein, the mere
listing of any Potentially Assumed and Assigned Contract on the Cure Notice does not require or
guarantee that such Potentially Assumed and Assigned Contract will be assumed by the Debtors
at any time or assumed and assigned, and all rights of the Debtors and the Successful Bidder
with respect to such Executory Contracts and/or Unexpired Leases are reserved. Moreover, the
Debtors explicitly reserve their rights, in their reasonable discretion, to seek to reject or assume
each Potentially Assumed and Assigned Contract pursuant to section 365(a) of the Bankruptcy
Code and in accordance with the procedures allowing the Debtors and/or the Successful Bidder,
as applicable, to designate any Potentially Assumed and Assigned Contract as either rejected or
assumed on a post-closing basis.
PLEASE TAKE FURTHER NOTICE that, nothing herein (i) alters in any way the
prepetition nature of the Potentially Assumed and Assigned Contracts or the validity, priority, or
amount of any claims of a counterparty to any Potentially Assumed and Assigned Contract
against the Debtors that may arise under such Potentially Assumed and Assigned Contract,
(ii) creates a postpetition contract or agreement, or (iii) elevates to administrative expense
priority any claims of a counterparty to any Potentially Assumed and Assigned Contract against
the Debtors that may arise under such Potentially Assumed and Assigned Contract.
PLEASE TAKE FURTHER NOTICE that you may obtain additional information
concerning the above-captioned chapter 11 cases at the website maintained in these
chapter 11 cases at https://omniagentsolutions.com/Vyaire.
[Remainder of page intentionally left blank]
4
Case 24-11217-BLS Doc 233-2 Filed 07/09/24 Page 65 of 71
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. (admitted 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. (admitted pro hac vice admission
pending)
Warren A. Usatine, Esq (admitted pro hac vice admission Spencer A. Winters, P.C. (admitted pro hac vice admission
pending) pending)
Court Plaza North, 25 Main Street Yusuf U. Salloum (admitted 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 233-2 Filed 07/09/24 Page 66 of 71
Exhibit A
Potentially Assumed and Assigned Contracts1
Potentially Assumed and Assigned Contracts
Unique Vendor Total Agg.
Row # Contract # Debtor Entity Description
Name Cure Amount
1
The inclusion of a contract on this list (each, a “Contract”) does not constitute an admission as to the executory
or non-executory nature of the Contract, or as to the existence or validity of any claims held by the counterparty
or counterparties to such Contract. The Debtors reserve all rights with respect to assumption or rejection of any
Contract included on this list.
Case 24-11217-BLS Doc 233-2 Filed 07/09/24 Page 67 of 71
EXHIBIT 4
Successful Bidder Notice
Case 24-11217-BLS Doc 233-2 Filed 07/09/24 Page 68 of 71
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. _
NOTICE OF SUCCESSFUL BIDDER
PLEASE TAKE NOTICE that, on June 9, 2024, each of the above-captioned debtors
and certain of its subsidiaries (collectively, the “Debtors”) filed a petition with this Court under
chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”).
PLEASE TAKE FURTHER NOTICE that, on [●], 2024, the United States Bankruptcy
Court for the District of Delaware (the “Court”) entered the Order (I) Approving Bidding
Procedures in Connection with the Sale of Substantially All of the Debtors’ Assets,
(II) Authorizing the Debtors to Enter Into a Stalking Horse Agreement and Provide Bid
Protections, (III) Approving the Form and Manner of Notice Thereof, (IV) Scheduling an
Auction and Sale Hearing, (V) Approving Procedures for the Assumption and Assignment of
Contracts, (VI) Approving the Sale of the Debtors’ Assets Free and Clear, and (VI) Granting
Related Relief [Docket No. [●]] (the “Bidding Procedures Order”), authorizing the Debtors to
solicit and select the highest or otherwise best offer(s) for a sale (or sales) (each, a “Sale
Transaction”) of (a) all or substantially all of the assets or (b) one or more, or any combination
of, assets of one or more Debtors (each, an “Asset,” and collectively, the “Assets”).2
PLEASE TAKE FURTHER NOTICE that, on July 24, 2024, at 10:00 a.m.
(prevailing Eastern Time), pursuant to the Bidding Procedures Order, the Debtors conducted
the Auction with respect to the Assets at the office of Kirkland & Ellis LLP, 333 West Wolf
Point Plaza, Chicago, IL 60654 and/or via remote video at the Debtors’ election.
1
The last four digits of Debtor Vyaire Medical, Inc.’s federal tax identification number are 6495. A complete list
of each of the Debtors in these chapter 11 cases and each such Debtor’s federal tax identification number may
be obtained on the website of the Debtors’ proposed claims and noticing agent at
https://omniagentsolutions.com/Vyaire. The location of Debtor Vyaire Medical, Inc.’s principal place of
business and the Debtors’ service address in these chapter 11 cases is 26125 North Riverwoods Boulevard,
Mettawa, Illinois, USA 60045.
2
Capitalized terms used but not defined herein have the meanings given to them in the Bidding Procedures Order.
Case 24-11217-BLS Doc 233-2 Filed 07/09/24 Page 69 of 71
PLEASE TAKE FURTHER NOTICE that, upon the conclusion of the Auction, the
Debtors, in the exercise of their reasonable and good-faith business judgment, have selected
(a) [●] as a Successful Bidder (the “Purchaser”), and (b) [●] as a Back-Up Bidder.
PLEASE TAKE FURTHER NOTICE that, as set forth more fully in that certain
purchase and sale agreement (the “Purchase Agreement”) between the Debtors (collectively,
the “Sellers”) and [●] (as Purchaser), the Successful Bid [●] provides a purchase price of $[●]
for [the Assets]. Further, the Back-Up Bid submitted by the Back-Up Bidder provides for a
purchase price of $[●] for [the Assets].
PLEASE TAKE FURTHER NOTICE that, the Debtors (as Sellers) and [●] (as
Purchaser) entered into the Purchase Agreement to effectuate the Sale Transaction on the terms
set forth in the Purchase Agreement, attached hereto as Exhibit A.
PLEASE TAKE FURTHER NOTICE that the Debtors have determined to effectuate
the Sale Transaction.
PLEASE TAKE FURTHER NOTICE that the proposed forms of order that the
Debtors will seek to have the Court enter to authorize the Sale Transaction under the Purchase
Agreement is attached hereto as Exhibit B. The Debtors reserve the right to modify such
proposed order prior to the Sale Hearing.
PLEASE TAKE FURTHER NOTICE that the Debtors will seek approval of the Sale
Transaction of these Assets to the Purchaser at the Sale Hearing scheduled to commence on
July 2931, 2024, at 102:00 ap.m., (prevailing Eastern Time) before the Honorable [●]Judge
Brendan L. Shannon, United States Bankruptcy Judge for the Bankruptcy Court for the District
of Delaware, at 824 North Market Street, 6th Floor, Courtroom No. [●]1, Wilmington, Delaware
19801. The Sale Hearing may be adjourned by announcement in open Court or on the Court’s
calendar without any further notice required.
PLEASE TAKE FURTHER NOTICE that objections specific to a Successful Bidder
must be made on or before July 22, 2024, at 4:00 p.m., (prevailing Eastern Time) (the “Sale
Transaction Objection Deadline”). Objections specific to the Auction, but solely as to (i) the
conduct of the Auction, (ii) the particular terms of any proposed Sale Transaction of a Successful
Bid, or (iii) the identify of a Successful Bidder or Back-Up Bidder must be made on or before
July 25, 2024, at 4:00 p.m., (prevailing Eastern Time) (the “Post-Auction Objection
Deadline”). Objections must be made in writing, state the basis of such objection with
specificity, and shall be filed with the Court, with a courtesy copy to chambers, and must be filed
no later than the Auction Objection Deadline, as applicable, and must be served on the following
parties: (i) the Debtors, 26125 North Riverwoods Boulevard, Mettawa, Illinois, 60045;
(ii) proposed co-counsel for the Debtors, Kirkland & Ellis LLP, 601 Lexington Avenue, New
York, New York 10022, Attn.: Joshua A. Sussberg, P.C. (joshua.sussberg@kirkland.com) and
Chris Ceresa (chris.ceresa@kirkland.com), and Kirkland & Ellis LLP, 333 West Wolf Point
Plaza, Chicago, Illinois 60654, Attn.: Spencer A. Winters, P.C.
(spencer.winters@kirkland.com), Yusuf U. Salloum (yusuf.salloum@kirkland.com), and
Rebecca Marston (rebecca.marston@kirkland.com); (iii) proposed co˗counsel to the Debtors,
Cole Schotz P.C., 500 Delaware Avenue, Suite 1410, Wilmington, Delaware 19801, Attn:
2
Case 24-11217-BLS Doc 233-2 Filed 07/09/24 Page 70 of 71
Patrick J. Reilley, Esq. (preilley@coleschotz.com), and Cole Schotz P.C., Court Plaza North, 25
Main Street, Hackensack, New Jersey 07601, Attn.: Michael D. Sirota, Esq.
(msirota@coleschotz.com); and (iv) the Debtors’ proposed investment banker, PJT Partners LP,
280 Park Avenue, New York, New York 10017, Attn: Michael Schlappig
(schlappig@pjtpartners.com), Jaimie Baird (baird@pjtpartners.com), and Dylan Friesner
(friesner@pjtpartners.com). (v) counsel to the 1L Ad Hoc Group, (i) Gibson, Dunn & Crutcher
LLP, 200 Park Avenue, New York, NY 10166-0193, Attn.: Scott J. Greenberg
(SGsgreenberg@gibsondunn.com), Jason Zachary Goldstein (JGjgoldstein@gibsondunn.com),
Joshua Brody (JBjbrody@gibsondunn.com), and Kevin Liang (KLkliang@gibsondunn.com) and
(ii) Pachulski Stang Ziehl & Jones LLP, 919 North Market Street, 17th Floor, Wilmington, DE
19801, Attn.: Laura Davis Jones (ljones@pszjlaw.com); (vi) proposed counsel to the Committee,
McDermott Will & Emery LLP, One Vanderbilt Avenue, New York, NY 10017-3852, Attn:
Darren Azman (dazman@mwe.com) and Kristin Going (kgoing@mwe.com) and McDermott
Will & Emery LLP, The Brandywine Building, 1000 N. West Street, Suite 1400, Wilmington,
Delaware 19801, Attn.: David Hurst (dhurst@mwe.com) and Maris Kandestin
(mkandestin@mwe.com); (vii) the Office of the United States Trustee, 844 King Street, Suite
2207, Lockbox 35, Wilmington, Delaware 19801, (viii) the United States Trustee, 844 King
Street, Suite 2207, Lockbox 35, Wilmington, Delaware 19801, Attn.: Benjamin A. Hackman
(Bbenjamin.A..a.Hhackman@usdoj.gov); and (viiix) any other party that has requested notice
pursuant to Bankruptcy Rule 2002.
PLEASE TAKE FURTHER NOTICE that, except as otherwise set forth in the Bidding
Procedures Order, any objection to the adequate future performance of the applicable Successful
Bidder or Back-Up Bidder must: (a) be in writing, (b) state, with specificity, the legal and factual
bases thereof, and (c) be filed with the Court and served so as to be actually received by no later
than July 29, 2024 at 4:00 p.m. (prevailing Eastern Time) on the Notice Parties; provided that,
to the extent not consensually resolved, any Adequate Assurance Objection may be set for
hearing at a date and time following the Sale Hearing.
PLEASE TAKE FURTHER NOTICE that at the Sale Hearing, the Debtors will seek
the Court’s approval of the Successful Bid by the Purchaser. Unless the Court orders otherwise,
the Sale Hearing shall be an evidentiary hearing on matters relating to the Sale Transaction, and
there will be no further bidding at the Sale Hearing.
PLEASE TAKE FURTHER NOTICE that, unless an objection is timely filed
regarding the assumption or assignment to the Successful Bidder of a contract or lease, such
contract or lease shall be assumed and assigned to the Successful Bidder as of [●]
(the “Assignment Date”).
PLEASE TAKE FURTHER NOTICE that this Successful Bidder Notice is subject to
the terms and conditions of the Bidding Procedures Motion and the Bidding Procedures Order,
with such Bidding Procedures Order controlling in the event of any conflict, and the Debtors
encourage parties in interest to review such documents in their entirety.
PLEASE TAKE FURTHER NOTICE that you may obtain additional information
concerning the above-captioned chapter 11 cases at the website maintained in these
chapter 11 cases at https://omniagentsolutions.com/Vyaire.
3
Case 24-11217-BLS Doc 233-2 Filed 07/09/24 Page 71 of 71
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. (admitted 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. (admitted pro hac vice admission
pending)
Warren A. Usatine, Esq (admitted pro hac vice admission Spencer A. Winters, P.C. (admitted pro hac vice admission
pending) pending)
Court Plaza North, 25 Main Street Yusuf U. Salloum (admitted 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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