Vyaire - COC - Contract Rejection Procedures Motion Order FINAL
- Date
- 2024-07-09
Summary
Exhibit 1, a revised proposed order in the jointly administered Chapter 11 cases of Vyaire Medical, Inc., et al., Case No. 24-11217 (BLS), in the U.S. Bankruptcy Court for the District of Delaware, filed July 9, 2024 as Doc 234-1. The order grants on a final basis the debtors' motion, Docket No. 117, to approve procedures for rejecting executory contracts and unexpired leases. The procedures limit each rejection notice to no more than 100 counterparties, set an objection deadline of fourteen (14) days after a notice is filed and served, address security deposits and abandoned property, and require rejection claims within thirty (30) days after an order approving a rejection. The filing closes with the terms of a form of rejection order, including that it is immediately effective notwithstanding Bankruptcy Rule 6004(h). It runs 19 pages.
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Case 24-11217-BLS Doc 234-1 Filed 07/09/24 Page 1 of 19
Exhibit 1
Revised Proposed Order
Case 24-11217-BLS Doc 234-1 Filed 07/09/24 Page 2 of 19
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. 117
ORDER (I) AUTHORIZING
AND APPROVING PROCEDURES TO REJECT EXECUTORY
CONTRACTS AND UNEXPIRED LEASES AND (II) GRANTING RELATED RELIEF
Upon the motion (the “Motion”)2 of the above-captioned debtors and debtors in
possession (collectively, the “Debtors”) for the entry of an order (this “Order”), (a) authorizing
and approving procedures for rejecting executory contracts and unexpired leases, and
(b) granting related relief, all as more fully set forth in the Motion; and upon the First Day
Declaration; and the United States District Court for the District of Delaware has jurisdiction
over this matter pursuant to 28 U.S.C. § 1334, which was referred to the Court under 28 U.S.C.
§ 157 and the Amended Standing Order of Reference from the United States District Court for
the District of Delaware, dated February 29, 2012; and this Court having found that this is a core
proceeding pursuant to 28 U.S.C. § 157(b)(2); and this Court having found that this Court may
enter a final order consistent with Article III of the United States Constitution; and this Court
having found that venue of this proceeding and the Motion in this district is proper pursuant to
28 U.S.C. §§ 1408 and 1409; and this Court having found that the relief requested in the Motion
1 The last four digits of Debtor Vyaire Medical, Inc.’s federal tax identification number are 6495. A complete list
of each of the Debtors in these chapter 11 cases and each such Debtor’s federal tax identification number may
be obtained on the website of the Debtors’ claims and noticing agent at https://omniagentsolutions.com/Vyaire.
The location of Debtor Vyaire Medical, Inc.’s principal place of business and the Debtors’ service address in
these chapter 11 cases is 26125 North Riverwoods Boulevard, Mettawa, Illinois, USA 60045.
2 Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Motion.
Case 24-11217-BLS Doc 234-1 Filed 07/09/24 Page 3 of 19
is in the best interests of the Debtors’ estates, their creditors, and other parties in interest; and this
Court having found that the Debtors’ notice of the Motion and opportunity for a hearing on the
Motion were appropriate and no other notice need be provided; and this Court having reviewed
the Motion and having heard the statements in support of the relief requested therein at a hearing
before this Court (the “Hearing”); and this Court having determined that the legal and factual
bases set forth in the Motion and at the Hearing establish just cause for the relief granted herein;
and upon all of the proceedings had before this Court; and after due deliberation and sufficient
cause appearing therefor, it is HEREBY ORDERED THAT:
1. The Motion is granted on a final basis as set forth herein.
2. The following procedures (the “Contract Rejection Procedures”) are approved in
connection with rejecting Contracts:
a. Rejection Notice. The Debtors shall file one or more notices, in
consultation with the Required DIP Lenders, substantially in the form
annexed as Exhibit 1 hereto (the “Rejection Notice”), to reject a Contract
or Contracts pursuant to section 365 of the Bankruptcy Code, which
Rejection Notice(s) shall set forth, among other things, with respect to
each Contract listed on the Rejection Notice: (i) the Contract or Contracts
to be rejected; (ii) the Debtor or Debtors party to such Contract; (iii) the
names and addresses of the counterparties to such Contract; (iv) the
proposed effective date of the rejection for such Contract (the “Rejection
Date”); and (v) if such Contract is an unexpired lease, the location affected
by the Rejection Notice and a summary description of personal property to
be abandoned, if any (the “Abandoned Property”). The Rejection Notice
shall also set forth the deadlines and procedures for filing objections to the
Rejection Notice (as set forth below). Each Rejection Notice may list
multiple Contracts; provided that the number of counterparties to
Contracts listed on any one Rejection Notice shall be limited to no more
than 100. For the avoidance of doubt, the Debtors may serve multiple
Rejection Notices, as long as the counterparties listed on each notice are
limited to no more than 100.
b. Service of Rejection Notices. The Debtors will cause each Rejection
Notice to be served (i) via email, if available, and by overnight delivery
service upon (a) the Contract counterparties affected by such Rejection
Notice (each, a “Rejection Counterparty”) at the notice address provided
in the applicable Contract (and upon such Rejection Counterparty’s
2
Case 24-11217-BLS Doc 234-1 Filed 07/09/24 Page 4 of 19
counsel, if known) and (b) all parties who may have any interest in any
Abandoned Property (if known); and (ii) by first class mail, email, or fax
upon: (a) counsel to the 1L Ad Hoc Group, Gibson, Dunn & Crutcher
LLP, 200 Park Avenue, New York, NY 10166-0193, Attn.: Scott J.
Greenberg (SGreenberg@gibsondunn.com), Jason Zachary Goldstein
(JGoldstein@gibsondunn.com), Joshua Brody
(JBrody@gibsondunn.com), and Kevin Liang
(KLiang@gibsondunn.com); (b) counsel to the 1L Ad Hoc Group,
Pachulski Stang Ziehl & Jones LLP, 919 North Market Street, 17th Floor,
Wilmington, DE 19801, Attn.: Laura Davis Jones (ljones@pszjlaw.com)
and Timothy P. Cairns (tcairns@pszjlaw.com); (c) the United States
Trustee for the District of Delaware, Attn.: Benjamin A. Hackman
(Benjamin.A.Hackman@usdoj.gov); (d) proposed counsel to the
Committee, (i) 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 (ii) McDermott Will & Emery LLP, One
Vanderbilt Avenue, New York, NY 10017-3852, Attn: Darren Azman
(dazman@mwe.com) and Kristin Going (kgoing@mwe.com); (e) the
United States Attorney’s Office for the District of Delaware; and (f) any
party that has requested notice pursuant to Bankruptcy Rule 2002
(collectively, the “Master Notice Parties”).
c. Objection Procedures. Parties objecting to a proposed rejection must file
and serve a written objection3 so that such objection is filed with this
Court on the docket of the Debtors’ chapter 11 cases no later than fourteen
(14) days after the date the Debtors file and serve the relevant Rejection
Notice (the “Rejection Objection Deadline”) and promptly serve such
objection on the following parties (collectively, the “Objection Service
Parties”): (a) the Debtors, Vyaire Medical, Inc., 26125 North Riverwoods
Boulevard, Mettawa, Illinois 60045, Attn.: Charles Braley
(cbraley@alixpartners.com); (b) proposed co-counsel to the Debtors
(i) Kirkland & Ellis LLP, 601 Lexington Avenue, New York, New York
10022, Attn.: Joshua A. Sussberg, P.C. (joshua.sussberg@kirkland.com),
Chris Ceresa (chris.ceresa@kirkland.com), and Tiffani Chanroo
(tiffani.chanroo@kirkland.com), and (ii) Kirkland & Ellis LLP, 333 Wolf
Point Plaza, Chicago, Illinois, 60654, Attn.: Spencer A. Winters
(spencer.winters@kirkland.com) and Yusuf U. Salloum
(yusuf.salloum@kirkland.com); (c) proposed co-counsel to the Debtors
(i) 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 (ii) Cole Schotz P.C., Court
Plaza North, 25 Main Street, Hackensack, New Jersey 07601, Attn.:
3 An objection to the rejection of any particular Contract listed on a Rejection Notice shall not constitute an
objection to the rejection of any other Contract listed on such Rejection Notice.
3
Case 24-11217-BLS Doc 234-1 Filed 07/09/24 Page 5 of 19
Michael D. Sirota, Esq. (msirota@coleschotz.com), Warren A. Usatine,
Esq. (wusatine@coleschotz.com); (d) counsel to the 1L Ad Hoc Group,
Gibson, Dunn & Crutcher LLP, 200 Park Avenue, New York, NY 10166-
0193, Attn.: Scott J. Greenberg (SGreenberg@gibsondunn.com), Jason
Zachary Goldstein (JGoldstein@gibsondunn.com), Joshua Brody
(JBrody@gibsondunn.com), and Kevin Liang
(KLiang@gibsondunn.com); (e) counsel to the 1L Ad Hoc Group,
Pachulski Stang Ziehl & Jones LLP, 919 North Market Street, 17th Floor,
Wilmington, DE 19801, Attn.: Laura Davis Jones (ljones@pszjlaw.com)
and Timothy P. Cairns (tcairns@pszjlaw.com); (f) the United States
Trustee for the District of Delaware, Attn.: Benjamin A. Hackman
(Benjamin.A.Hackman@usdoj.gov); and (g) proposed counsel to the
Committee, (i) 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 (ii) McDermott Will & Emery LLP, One
Vanderbilt Avenue, New York, NY 10017-3852, Attn: Darren Azman
(dazman@mwe.com) and Kristin Going (kgoing@mwe.com).
d. No Objection Timely Filed. If no objection to the rejection of any
Contract is timely filed, then the Debtors shall submit a proposed form of
order substantially in the form attached as Exhibit B to the Rejection
Notice approving the rejection of each Contract listed in the applicable
Rejection Notice, for entry by the Court under certification of counsel, and
each such Contract shall be deemed rejected as of the Rejection Date set
forth in the Rejection Notice or such other date as the Debtors and the
counterparty or counterparties to such Contract(s) agree; provided that the
effective date of a rejection of a nonresidential real property lease shall not
occur until the later of (i) the date the Debtors file and serve a Rejection
Notice for such lease, (ii) the Rejection Date set forth in the Rejection
Notice, and (iii) the date the Debtors relinquish control of the premises by
notifying the affected landlord or their counsel in writing (email sufficient)
of the Debtors’ surrender of the premises and turning over, surrendering,
or allowing to be reset, as applicable, the keys, key codes, and security
codes, if any, to the affected landlord.
e. Unresolved Timely Objections. If one or more objections to the rejection
of any Contract(s) listed in the applicable Rejection Notice is timely filed
and properly served as specified above and not withdrawn or resolved, the
Debtors shall file a notice for a hearing to consider the rejection of the
Contract(s) implicated by such objection(s) and shall provide at least
seven (7) days’ notice of such hearing to each objecting party and the
Objection Service Parties. If any such objection is overruled or
withdrawn, the Contract(s) that are the subject of such objection shall be
rejected as of the Rejection Date set forth in the Rejection Notice or such
other date as agreed by the parties or determined by the Court as set forth
in any order overruling such objection.
4
Case 24-11217-BLS Doc 234-1 Filed 07/09/24 Page 6 of 19
f. No Application of Security Deposits. If the Debtors have deposited
monies with a Rejection Counterparty as a security deposit or other
arrangement in connection with such rejected Contract, such Rejection
Counterparty may not setoff, recoup, or otherwise use such deposit
without the prior approval of the Court, unless the Debtors and the
applicable Rejection Counterparty, in consultation with the Committee
and the Required DIP Lenders, otherwise agree in writing.
g. Abandoned Property. The Debtors are authorized, but not directed, at any
time on or before the applicable Rejection Date, to remove or abandon, at
their option, any of the Debtors’ personal property that may be located on
the Debtors’ leased premises that are subject to a rejected Contract;
provided, however, that to the extent the Debtors seek to abandon personal
property that contains “personally identifiable information,” as that term is
defined in section 101(41A) of the Bankruptcy Code (the “PII”), the
Debtors will use commercially reasonable efforts to remove the PII from
such personal property before abandonment. The Debtors shall generally
describe the Abandoned Property in the applicable Rejection Notice and
their intent to abandon such property. Absent a timely objection, the
described property shall be deemed abandoned pursuant to section 554 of
the Bankruptcy Code, as is, effective as of the Rejection Date. After the
Abandoned Property is deemed abandoned pursuant to section 554 of the
Bankruptcy Code, the applicable Rejection Counterparty or counterparties
may, in their sole discretion and without further order of this Court, utilize
and/or dispose of such property and, to the extent applicable, the
automatic stay is modified to allow such disposition. To the extent
requested by Rejection Counterparty, the Debtors shall be permitted to
abandon the Abandoned Property to such Rejection Counterparty to
facilitate such party’s use or disposal of such Abandoned Property.
h. Proofs of Claim. Claims arising out of the rejection of Contracts, if any,
must be filed on or before the later of (i) the applicable deadline for filing
proofs of claim established in these chapter 11 cases, and
(ii) thirty (30) days after the entry of an order of the Court approving the
rejection. If no proof of claim is timely filed, such claimant shall be
forever barred from asserting a claim for damages arising from the
rejection and from participating in any distributions on such a claim that
may be made in connection with these chapter 11 cases.
i. Removal from Schedule. The Debtors reserve the right to remove any
Contract from the schedule to any Rejection Notice at any time prior to the
date of entry of an order of the Court approving the rejection, and the
Debtors will provide notice (by overnight delivery service at the notice
address provided in the applicable Contract) of such removal to the
relevant Rejection Counterparties.
5
Case 24-11217-BLS Doc 234-1 Filed 07/09/24 Page 7 of 19
3. Approval of the Contract Rejection Procedures and this Order will not prevent the
Debtors from seeking to reject a Contract by separate motion.
4. Nothing contained in the Motion or this Order, and no action taken pursuant to the
relief requested or granted, is intended as or shall be construed or deemed to be: (a) an
admission as to the amount, validity or priority of, or basis for any claim against the Debtors
under the Bankruptcy Code or other applicable nonbankruptcy law; (b) a waiver of the Debtors’
or any other party in interest’s right to dispute any claim on any grounds; (c) a promise or
requirement to pay any particular claim; (d) an implication, admission, or finding that any
particular claim is an administrative expense claim, other priority claim or otherwise of a type
specified or defined in the Motion or this Order; (e) an admission as to the validity, priority,
enforceability, or perfection of any lien on, security interest in, or other encumbrance on property
of the Debtors’ estates; or (f) a waiver or limitation of any claims, causes of action or other rights
of the Debtors or any other party in interest against any person or entity under the Bankruptcy
Code or any other applicable law.
5. Nothing in the Motion or this Order waives or modifies the requirements of the
Restructuring Support Agreement, including, without limitation, the consent and consultation
rights contained therein.
6. Notwithstanding anything to the contrary contained herein, any authorization
contained herein shall be subject to any interim and final orders, as applicable, approving the use
of such cash collateral and/or the Debtors’ entry into any postpetition financing facilities or
credit agreement, and any budgets in connection therewith governing any such postpetition
financing and/or use of cash collateral (each such order, a “DIP Order”). To the extent there is
any inconsistency between the terms of a DIP Order and any action taken or proposed to be
taken hereunder, the terms of the DIP Order shall control.
6
Case 24-11217-BLS Doc 234-1 Filed 07/09/24 Page 8 of 19
7. All rights and defenses of the Debtors are preserved, including all rights and
defenses of the Debtors with respect to a claim for damages arising as a result of a Contract
rejection, including any right to assert an offset, recoupment, counterclaim, or deduction.
In addition, nothing in this Order or the Motion shall limit the Debtors’ ability to subsequently
assert that any particular Contract is terminated and is no longer an executory contract or
unexpired lease, respectively.
8. Notice of the Motion as provided therein shall be deemed good and sufficient
notice of such Motion and the requirements of Bankruptcy Rule 6004(a) and the Local Rules are
satisfied by such notice.
9. Notwithstanding Bankruptcy Rule 6004(h), the terms and conditions of this Order
are immediately effective and enforceable upon its entry.
10. The Debtors are authorized to take all actions necessary to effectuate the relief
granted in this Order in accordance with the Motion.
11. This Court retains jurisdiction with respect to all matters arising from or related to
the implementation, interpretation, and enforcement of this Order.
7
Case 24-11217-BLS Doc 234-1 Filed 07/09/24 Page 9 of 19
EXHIBIT 1
Rejection Notice
Case 24-11217-BLS Doc 234-1 Filed 07/09/24 Page 10 of 19
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 REJECTION OF [A]
CERTAIN EXECUTORY CONTRACT[S] [AND/OR UNEXPIRED LEASES]
PARTIES RECEIVING THIS NOTICE SHOULD LOCATE THEIR NAMES AND
THEIR CONTRACTS OR LEASES ON EXHIBIT A ATTACHED HERETO AND READ
THE CONTENTS OF THIS NOTICE CAREFULLY.
PLEASE TAKE NOTICE that on [●], 2024, the United States Bankruptcy Court for the
District of Delaware (the “Court”) entered an order on the motion (the “Motion”)2 of debtors and
debtors in possession (the “Debtors”), approving procedures for the rejection of executory
contracts and unexpired leases and granting related relief [Docket No. [●]] (the “Rejection
Procedures Order”).
PLEASE TAKE FURTHER NOTICE that, pursuant to the Rejection Procedures Order
and by this written notice (this “Rejection Notice”), the Debtors hereby notify you that they have
determined, in the exercise of their business judgment, that each Contract set forth on Exhibit A
attached hereto is hereby rejected effective as of the date set forth in Exhibit A (the “Rejection
Date”), or such other date as the Debtors and the counterparty or counterparties to any such
Contract agree.
PLEASE TAKE FURTHER NOTICE that parties objecting to a proposed rejection
must file and serve a written objection so that such objection is filed with this Court on the
docket of the Debtors’ chapter 11 cases no later than fourteen (14) days after the date the Debtors
file and serve the relevant Rejection Notice (the “Rejection Objection Deadline”) and promptly
serve such objection on the following parties (collectively, the “Objection Service Parties”): (a)
the Debtors, Vyaire Medical, Inc., 26125 North Riverwoods Boulevard, Mettawa, Illinois 60045,
Attn.: Charles Braley (cbraley@alixpartners.com); (b) proposed co-counsel to the Debtors
1 The last four digits of Debtor Vyaire Medical, Inc.’s federal tax identification number are 6495. A complete list
of each of the Debtors in these chapter 11 cases and each such Debtor’s federal tax identification number may
be obtained on the website of the Debtors’ claims and noticing agent at https://omniagentsolutions.com/Vyaire.
The location of Debtor Vyaire Medical, Inc.’s principal place of business and the Debtors’ service address in
these chapter 11 cases is 26125 North Riverwoods Boulevard, Mettawa, Illinois, USA 60045.
2 Capitalized terms used but not otherwise defined herein have the meanings ascribed to them in the Motion.
Case 24-11217-BLS Doc 234-1 Filed 07/09/24 Page 11 of 19
(i) Kirkland & Ellis LLP, 601 Lexington Avenue, New York, New York 10022, Attn.: Joshua A.
Sussberg, P.C. (joshua.sussberg@kirkland.com), Chris Ceresa (chris.ceresa@kirkland.com), and
Tiffani Chanroo (tiffani.chanroo@kirkland.com), and (ii) Kirkland & Ellis LLP, 333 Wolf Point
Plaza, Chicago, Illinois, 60654, Attn.: Spencer A. Winters (spencer.winters@kirkland.com) and
Yusuf U. Salloum (yusuf.salloum@kirkland.com); (c) proposed co-counsel to the Debtors
(i) 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
(ii) Cole Schotz P.C., Court Plaza North, 25 Main Street, Hackensack, New Jersey 07601, Attn.:
Michael D. Sirota, Esq. (msirota@coleschotz.com), Warren A. Usatine, Esq.
(wusatine@coleschotz.com); (d) counsel to the 1L Ad Hoc Group, Gibson, Dunn & Crutcher
LLP, 200 Park Avenue, New York, NY 10166-0193, Attn.: Scott J. Greenberg
(SGreenberg@gibsondunn.com), Jason Zachary Goldstein (JGoldstein@gibsondunn.com),
Joshua Brody (JBrody@gibsondunn.com), and Kevin Liang (KLiang@gibsondunn.com);
(e) counsel to the 1L Ad Hoc Group, Pachulski Stang Ziehl & Jones LLP, 919 North Market
Street, 17th Floor, Wilmington, DE 19801, Attn.: Laura Davis Jones (ljones@pszjlaw.com) and
Timothy P. Cairns (tcairns@pszjlaw.com); (f) the United States Trustee for the District of
Delaware, Attn.: Benjamin A. Hackman (Benjamin.A.Hackman@usdoj.gov); and (g) proposed
counsel to the Committee, (i) 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 (ii) McDermott Will &
Emery LLP, One Vanderbilt Avenue, New York, NY 10017-3852, Attn: Darren Azman
(dazman@mwe.com) and Kristin Going (kgoing@mwe.com). Only those responses that are
timely filed, served, and received will be considered at any hearing.
PLEASE TAKE FURTHER NOTICE that, absent an objection being timely filed, the
Debtors shall seek entry of the proposed form of order attached hereto as Exhibit B, and the
rejection of each Contract shall become effective on the Rejection Date set forth in Exhibit A, or
such other date as the Debtors and the counterparty or counterparties to such Contract agree.3
PLEASE TAKE FURTHER NOTICE that, if an objection to the rejection of any
Contract is timely filed and not withdrawn or resolved, the Debtors shall file a notice for a
hearing to consider the objection for the Contract or Contracts to which such objection relates.
If such objection is overruled or withdrawn, such Contract or Contracts shall be rejected as of the
Rejection Date set forth in Exhibit A or such other date as the Debtors and the counterparty or
counterparties to any such Contract agree.
PLEASE TAKE FURTHER NOTICE that, pursuant to the terms of the Rejection
Procedures Order, if the Debtors have deposited monies with a Rejection Counterparty as a
security deposit or other arrangement, the Rejection Counterparty may not setoff or recoup or
3 An objection to the rejection of any particular Contract listed in this Rejection Notice shall not constitute an
objection to the rejection of any other contract or lease listed in this Rejection Notice. Any objection to the
rejection of any particular Contract listed in this Rejection Notice must state with specificity the Contract to
which it is directed. For each particular Contract whose rejection is not timely or properly objected to, such
rejection will be effective in accordance with this Rejection Notice and the Rejection Procedures Order.
2
Case 24-11217-BLS Doc 234-1 Filed 07/09/24 Page 12 of 19
otherwise use such monies without further order of the Court, unless the Debtors and the
counterparty or counterparties to such Contracts otherwise agree in writing.
PLEASE TAKE FURTHER NOTICE that, absent timely objection, any personal
property of the Debtors that is listed and described in Exhibit A shall be deemed abandoned as
of the Rejection Date.
PLEASE TAKE FURTHER NOTICE that, to the extent you wish to assert a claim
with respect to the rejection of your Contract or Contracts, you must do so by the later of (a) the
applicable deadline for filing proofs of claim established in these chapter 11 cases and (b) thirty
(30) days after the entry of an order of the Court approving the rejection. IF YOU FAIL TO
TIMELY SUBMIT A PROOF OF CLAIM IN THE APPROPRIATE FORM BY THE
DEADLINE SET FORTH HEREIN, YOU WILL BE FOREVER BARRED, ESTOPPED,
AND ENJOINED FROM (1) ASSERTING SUCH CLAIM AGAINST ANY OF THE
DEBTORS AND THEIR CHAPTER 11 ESTATES, (2) VOTING ON ANY CHAPTER 11
PLAN FILED IN THESE CASES ON ACCOUNT OF SUCH CLAIM, AND
(3) PARTICIPATING IN ANY DISTRIBUTION IN THE DEBTORS’ CHAPTER 11
CASES ON ACCOUNT OF SUCH CLAIM.
[Remainder of page intentionally left blank]
3
Case 24-11217-BLS Doc 234-1 Filed 07/09/24 Page 13 of 19
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)
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) Spencer A. Winters, P.C. (admitted pro hac vice)
Warren A. Usatine, Esq (admitted pro hac vice) Yusuf U. Salloum (admitted pro hac vice)
Court Plaza North, 25 Main Street 333 West Wolf Point Plaza
Hackensack, New Jersey 07601 Chicago, Illinois 60654
Telephone: (201) 489-3000 Telephone: (312) 862-2000
Facsimile: (201) 489-1536 Facsimile: (312) 862-2200
Email: msirota@coleschotz.com Email: spencer.winters@kirkland.com
wusatine@coleschotz.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 234-1 Filed 07/09/24 Page 14 of 19
EXHIBIT A
Rejected Contracts
Abandoned Rejection Date
Debtor Description of Personal Property, (Effective Date
Counterparty Counterparty Contract1 if Applicable of Rejection)
1 The inclusion of a Contract on this list 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.
Case 24-11217-BLS Doc 234-1 Filed 07/09/24 Page 15 of 19
EXHIBIT B
Proposed Contract Rejection Order
Case 24-11217-BLS Doc 234-1 Filed 07/09/24 Page 16 of 19
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. [●]
ORDER AUTHORIZING THE DEBTORS TO REJECT
CERTAIN EXECUTORY CONTRACTS [AND/OR UNEXPIRED LEASES]
Pursuant to and in accordance with the Order (I) Authorizing and Approving Procedures
to Reject Executory Contracts and Unexpired Leases and (II) Granting Related Relief [Docket
No. [●]] (the “Rejection Procedures Order”)2 entered in the chapter 11 cases of the above-
captioned debtors and debtors in possession (collectively, the “Debtors”); and it appearing that
the [Notice of Rejection of [A] Certain Executory Contract[s] [and/or Unexpired Leases]]
[Docket No. [●]] (the “Rejection Notice”) satisfies the requirements set forth in the Rejection
Procedures Order; and the United States District Court for the District of Delaware has
jurisdiction over this matter pursuant to 28 U.S.C. § 1334, which was referred to the Court under
28 U.S.C. § 157 and the Amended Standing Order of Reference from the United States District
Court for the District of Delaware, dated February 29, 2012; and this Court having found that
this is a core proceeding pursuant to 28 U.S.C. § 157(b)(2); and this Court having found that this
Court may enter a final order consistent with Article III of the United States Constitution; and
1 The last four digits of Debtor Vyaire Medical, Inc.’s federal tax identification number are 6495. A complete list
of each of the Debtors in these chapter 11 cases and each such Debtor’s federal tax identification number may
be obtained on the website of the Debtors’ claims and noticing agent at https://omniagentsolutions.com/Vyaire.
The location of Debtor Vyaire Medical, Inc.’s principal place of business and the Debtors’ service address in
these chapter 11 cases is 26125 North Riverwoods Boulevard, Mettawa, Illinois, USA 60045.
2 Capitalized terms used but not otherwise defined herein have the meanings ascribed to them in the Rejection
Procedures Order.
Case 24-11217-BLS Doc 234-1 Filed 07/09/24 Page 17 of 19
this Court having found that venue of this proceeding and the Rejection Notice in this district is
proper pursuant to 28 U.S.C. §§ 1408 and 1409; and this Court having found that the relief
requested in the Rejection Notice is in the best interests of the Debtors’ estates, their creditors,
and other parties in interest; and this Court having found that the Debtors’ notice of the Rejection
Notice and opportunity for a hearing on the Rejection Notice were appropriate and no other
notice need be provided; and this Court having reviewed the Rejection Notice; and this Court
having determined that the legal and factual bases set forth in the Rejection Notice establish just
cause for the relief granted herein; and upon all of the proceedings had before this Court; and
after due deliberation and sufficient cause appearing therefor, it is HEREBY ORDERED THAT
1. The Contract[s] set forth in Exhibit 1 attached hereto [is/are] hereby rejected as
of the Rejection Date established in the Rejection Notice.
2. Any and all property located on the Debtors’ leased premises on the Rejection
Date of the applicable lease of nonresidential real property shall be deemed abandoned pursuant
to section 554 of the Bankruptcy Code, as is, effective as of the Rejection Date. The applicable
Rejection Counterparty or counterparties may, in their sole discretion and without further order
of this Court, utilize and/or dispose of such property and, to the extent applicable, the automatic
stay is modified to allow such disposition; provided that, to the extent requested by the Rejection
Counterparty, the Debtors shall be permitted to abandon the Abandoned Property to such
Rejection Counterparty to facilitate such party’s use or disposal of such Abandoned Property.
3. If any affected Rejection Counterparty to a Contract asserts a claim against the
Debtors arising from the rejection of the Contract, the counterparty must file a proof of claim on
or before the later of (i) the applicable deadline for filing proofs of claim established in these
chapter 11 cases, and (ii) thirty (30) days after the entry of an order of the Court approving the
2
Case 24-11217-BLS Doc 234-1 Filed 07/09/24 Page 18 of 19
rejection. If no proof of claim is timely filed, such claimant shall be forever barred from
asserting a claim for damages arising from the rejection and from participating in any
distributions on such a claim that may be made in connection with these chapter 11 cases.
4. Nothing contained in the Rejection Notice or this order, and no action taken
pursuant to the relief requested or granted, is intended as or shall be construed or deemed to be:
(a) an admission as to the amount, validity or priority of, or basis for any claim against the
Debtors under the Bankruptcy Code or other applicable nonbankruptcy law; (b) a waiver of the
Debtors’ or any other party in interest’s right to dispute any claim on any grounds; (c) a promise
or requirement to pay any particular claim; (d) an implication, admission, or finding that any
particular claim is an administrative expense claim, other priority claim or otherwise of a type
specified or defined in the Rejection Notice or this order; (e) an admission as to the validity,
priority, enforceability, or perfection of any lien on, security interest in, or other encumbrance on
property of the Debtors’ estates; or (f) a waiver or limitation of any claims, causes of action, or
other rights of the Debtors or any other party in interest against any person or entity under the
Bankruptcy Code or any other applicable law.
5. All rights and defenses of the Debtors are preserved, including all rights and
defenses of the Debtors with respect to a claim for damages arising as a result of a Contract
rejection, including any right to assert an offset, recoupment, counterclaim, or deduction.
In addition, nothing in this order or the Rejection Notice shall limit the Debtors’ ability to
subsequently assert that any particular Contract is terminated and is no longer an executory
contract or unexpired lease, respectively.
3
Case 24-11217-BLS Doc 234-1 Filed 07/09/24 Page 19 of 19
6. Notice of the Rejection Notice as provided therein shall be deemed good and
sufficient notice of such Rejection Notice and the requirements of Bankruptcy Rule 6004(a) and
the Local Rules are satisfied by such notice.
7. Notwithstanding Bankruptcy Rule 6004(h), the terms and conditions of this order
are immediately effective and enforceable upon its entry.
8. The Debtors are authorized to take all actions necessary to effectuate the relief
granted in this order.
9. This Court retains jurisdiction with respect to all matters arising from or related to
the implementation, interpretation, and enforcement of this order.
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