Vyaire - Notice of Filing Revised DS Motion Proposed Order
- Date
- 2024-09-30
Summary
Doc 585-2, filed 09/30/24 in the jointly administered Chapter 11 cases of Vyaire Medical, Inc., et al., Case No. 24-11217, in the U.S. Bankruptcy Court for the District of Delaware, is Exhibit 2, a redline of the proposed order on the debtors' disclosure statement motion. The proposed order would approve the Disclosure Statement on an interim basis, schedule a combined disclosure statement and plan confirmation hearing, and approve solicitation, voting and notice procedures. Its timeline sets a Voting Record Date of October 2, 2024, a Voting Deadline of November 4, 2024, and a Confirmation Hearing on November 14, 2024. It also approves the forms of ballots, non-voting status notices and assumption notices. The 130-page filing closes with a draft notice signed by Cole Schotz P.C. and Kirkland & Ellis LLP as co-counsel to the debtors.
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Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 1 of 130
Exhibit 2
Redline
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 2 of 130
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 (___)
)
Debtors. ) (Jointly Administered)
)
) Re: Docket No. __
ORDER (I) APPROVING THE ADEQUACY
OF THE DISCLOSURE STATEMENT ON AN INTERIM
BASIS, (II) SCHEDULING A COMBINED DISCLOSURE STATEMENT
APPROVAL AND PLAN CONFIRMATION HEARING, (III) APPROVING
THE SOLICITATION AND NOTICE PROCEDURES, (IV) APPROVING
THE COMBINED HEARING NOTICE, AND (V) 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
the Debtors to approve the adequacy of the Disclosure Statement on an interim basis,
(b) schedule the Combined Hearing on the adequacy of the Disclosure Statement on a final basis
and Confirmation of the Plan, (c) establish the Objection Deadline and approving related
procedures, (d) approve the Solicitation Procedures, (e) approve the form and manner of the
Combined Hearing Notice, and (f) 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
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 585-2 Filed 09/30/24 Page 3 of 130
the Court under 28 U.S.C. § 157 and the Amended Standing Order of Reference from the United
States District Court for the District of Delaware, dated February 29, 2012; and this Court having
found that this is a core proceeding pursuant to 28 U.S.C. § 157(b)(2); and this Court having
found that this Court may enter a final order consistent with Article III of the United States
Constitution; and this Court having found that venue of this proceeding and the Motion in this
district is proper pursuant to 28 U.S.C. §§ 1408 and 1409; and this Court having found that the
relief requested in the Motion is in the best interests of the Debtors’ estates, their creditors, and
other parties in interest; and this Court having found that the Debtors’ notice of the Motion and
opportunity for a hearing on the Motion were appropriate 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 basis asto the extent set forth herein.
I. Interim Approval of the Disclosure Statement.
2. The Disclosure Statement, substantially in the form attached hereto as Exhibit 1,
is hereby approved on an interim basis as providing Holders of Claims entitled to vote on the
Plan with adequate information to make an informed decision as to whether to vote to accept or
reject the Plan in accordance with sections 105 and 1125(a)(1) of the Bankruptcy Code and
Bankruptcy Rule 3017.
3. The Disclosure Statement (including all applicable exhibits thereto) provides
Holders of Claims or Interests, and other parties in interest with sufficient notice of the
2
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injunction, exculpation, and release provisions contained in Article VIII of the Plan, in
satisfaction of the requirements of Bankruptcy Rule 3016(c).
II. Approval of the Solicitation and Voting Procedures.
4. The Debtors are authorized to solicit, receive, and tabulate votes to accept the
Plan in accordance with the Solicitation and Voting Procedures, substantially in the form
attached hereto as Exhibit 2, which are hereby approved in their entirety.
5. Any party wishing to file a motion under Bankruptcy Rule 3018(a) to temporarily
allow a Claim or Interest solely for purposes of voting to accept or reject the Plan shall have until
ten days from the later of (a) the distribution of the Combined Hearing Notice and (b) the filing
of an objection to such Claim or Interest to file such a motion. The Debtors and other parties in
interest shall have until November 4, 2024 as the deadline to file objections to any motion filed
pursuant to Bankruptcy Rule 3018(a).
III. Approval of the Materials and Timeline for Soliciting Votes and the Procedures for
Confirming the Plan.
A. Approval of Certain Dates and Deadlines with Respect to the Plan and
Disclosure Statement.
6. The following dates are hereby established (subject to modification as necessary)
with respect to solicitation of votes on the Plan and Confirmation of the Plan:
Event Date
Disclosure Statement Objection Deadline September 25, 2024, at 4:00 p.m. (prevailing Eastern Time)
Voting Record Date October 2, 2024
Disclosure Statement Hearing October 2, 2024
Solicitation Launch October 7, 2024
Plan Supplement Filing Date October 28, 2024
Voting Deadline November 4, 2024, at 4:00 p.m. (prevailing Eastern Time)
Confirmation Objection Deadline November 4, 2024, at 4:00 p.m. (prevailing Eastern Time)
Voting Report Filing Deadline November 7, 2024
Confirmation Brief Filing Deadline November 11, 2024
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Event Date
Confirmation Hearing November 14, 2024, at 1:30 p.m. (prevailing Eastern Time)
B. Approval of the Form of and Distribution of Solicitation Packages to Parties
Entitled to Vote on the Plan.
7. In addition to a copy of this Order, the Solicitation Packages to be transmitted on
or before the Solicitation Deadline to those Holders of Claims the Voting Classes entitled to vote
on the Plan as of the Voting Record Date, shall include the following, the form of each of which
is hereby approved:
a. Ballots substantially in the forms attached hereto as Exhibit 3A and 3B,
and, for those Ballots distributed by first-class mail, a pre-addressed,
postage prepaid return envelope;3
b. the Cover Letter, including instructions to obtain access, free of charge, to
the Plan and Disclosure Statement and the Order (without exhibits, except
the Solicitation and Voting Procedures), substantially in the form attached
hereto as Exhibit 7; and
c. the Combined Hearing Notice substantially in the form attached hereto as
Exhibit 8.
8. The Solicitation Packages provide the Holders of Claims entitled to vote on the
Plan with adequate information to make informed decisions with respect to voting on the Plan in
accordance with Bankruptcy Rules 2002(b) and 3017(d), the Bankruptcy Code, and the Local
Rules.
9. The Debtors shall distribute Solicitation Packages by email, where available, and
otherwise by first-class U.S. mail, to all Holders of Claims entitled to vote on the Plan on or
3
The Debtors will use commercially reasonable efforts to ensure that any Holder of a Claim who has filed
duplicate Claims against the Debtors (whether against the same or multiple Debtors) that are classified under the
Plan in the same Voting Class receives no more than one Solicitation Package (and, therefore, one Ballot) on
account of such Claim and with respect to that Class.
4
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before the Solicitation Deadline. Such service shall satisfy the requirements of the Bankruptcy
Code, the Bankruptcy Rules, and the Local Rules.
10. The Debtors are authorized, but not directed or required, to distribute the Plan and
Disclosure Statement to Holders of Claims entitled to vote on the Plan by providing instructions
as part of the Solicitation Package for accessing these documents through the Debtors’
restructuring website (https://omniagentsolutions.com/Vyaire), and if requested, a hard copy or
flash drive within three business days of receipt of such request. On or before the Solicitation
Deadline, the Debtors shall provide (a) complete Solicitation Packages (other than Ballots) to the
U.S. Trustee and (b) the Order (in electronic format) and the Combined Hearing Notice to all
parties on the 2002 List as of the Voting Record Date.
11. Any party that would prefer to receive materials in paper format may contact the
Notice and Claims Agent and request paper copies of the materials (to be provided at the
Debtors’ expense).
12. The Notice and Claims Agent is authorized to assist the Debtors in (a) distributing
the Solicitation Package, (b) receiving, tabulating, and reporting on Ballots cast to accept or
reject the Plan by Holders of Claims and Interests against the Debtors, (c) responding to inquiries
from Holders of Claims and Interests and other parties in interest relating to the Disclosure
Statement, the Plan, the Ballots, the Solicitation Package, and all other related documents and
matters related thereto, including the procedures and requirements for voting to accept or reject
the Plan and for objecting to the Plan, (d) soliciting votes on the Plan, and (e) if necessary,
contacting creditors regarding the Plan.
13. The Notice and Claims Agent is also authorized to accept Ballots via electronic
online transmission solely through a customized online balloting portal on the Debtors’ case
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website. The encrypted ballot data and audit trail created by such electronic submission shall
become part of the record of any Ballot submitted in this manner and the creditor’s electronic
signature will be deemed to be immediately legally valid and effective. Ballots submitted via the
customized online balloting portal shall be deemed to contain an original signature.
14. All votes to accept or reject the Plan must be cast by using the appropriate Ballot.
All Ballots must be properly executed, completed, and delivered according to their applicable
voting instructions by: (a) first class mail; (b) overnight courier; (c) personal delivery; or
(d) via E-Ballot Portal, so that the Ballots are actually received by the Notice and Claims Agent
no later than the Voting Deadline at the return address set forth in the applicable Ballot.
Alternatively, Ballots may be submitted via an electronic Ballot through the Solicitation Agent’s
online electronic Ballot submission portal at https://omniagentsolutions.com/Vyaire by no later
than the Voting Deadline. The Debtors are authorized to extend the Voting Deadline in their
sole discretion and without further order of the Court.
C. Approval of the Combined Hearing Notice.
15. The Combined Hearing Notice constitutes adequate and sufficient notice of the
hearing to consider approval of the Plan, the manner in which a copy of the Plan could be
obtained, and the time fixed for filing objections thereto, in satisfaction of the requirements of
the applicable provisions of the Bankruptcy Code, the Bankruptcy Rules, and the Local Rules.
16. The Combined Hearing Notice, substantially in the form attached hereto as
Exhibit 8, shall be filed by the Debtors and served, within three business days following entry of
this Order, upon the Debtors’ entire creditor matrix and all interest holders of record; provided,
however, that in lieu of mailing a Combined Hearing Notice to such parties for whom the
Debtors maintain active electronic mail addresses on record (meaning that such electronic mails
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do not respond that the message is undeliverable), the Debtors will cause the Combined Hearing
Notice to be sent by electronic mail to such parties.
17. In addition, the Debtors shall publish the Combined Hearing Notice in a format
modified for publication (the “Publication Notice”) one time, as soon as reasonably practicable
after entry of this Order, in a nationally recognized and circulated news publication.
D. Approval of Notice of Filing of the Plan Supplement.
18. The Debtors are authorized to file and post the Plan Supplement on the Debtors’
restructuring website at https://omniagentsolutions.com/Vyaire, which will be filed and posted at
least seven days prior to the Voting Deadline, substantially in the form attached hereto as
Exhibit 9.
E. Approval of the Form of Notices to Non-Voting Classes.
19. Except to the extent the Debtors determine otherwise, the Debtors are not
required to provide Solicitation Packages to Holders of Claims in Non-Voting Classes, as such
Holders are not entitled to vote on the Plan. Instead, on or before the Solicitation Deadline, the
Notice and Claims Agent shall distribute by email, where available, and otherwise by mail
(first-class postage prepaid), a Non-Voting Status Notice in lieu of Solicitation Packages, the
form of each of which is hereby approved, to those parties, outlined below, who are not entitled
to vote on the Plan:
Class Status Treatment
Will receive a Non-Voting Status Notice,
Unimpaired—Conclusively substantially in the form attached hereto
Classes 1, 2 and 3
Presumed to Accept as Exhibit 4 in lieu of a Solicitation
Package.
Will receive a Non-Voting Status Notice,
Classes 6, 7, 8, 9, and substantially in the forms attached hereto
Impaired—Deemed to Reject
10 as Exhibit 5 in lieu of a Solicitation
Package.
7
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Class Status Treatment
Holders of Claims and Interests that are
subject to a pending objection by the
Debtors are not entitled to vote the
disputed portion of their Claim. As such,
N/A Disputed Claims
Holders of such Claims will receive a
notice, substantially in the forms attached
hereto as Exhibit 6 (which notice shall
be served together with such objection).
20. The Debtors are not required to distribute Solicitation Packages or other
solicitation materials to the following: (a) Holders of Claims that have already been paid in full
during these Chapter 11 Cases or that are authorized to be paid in full in the ordinary course of
business pursuant to an order previously entered by this Court; (b) any party to whom a notice of
the hearing regarding the Court’s interim approval of the Disclosure Statement was sent but was
subsequently returned as undeliverable; or (c) Holders of Class 7 Intercompany Claims and Class
8 Intercompany Interests.
F. Approval of Assumption Notice.
21. The Debtors are authorized to distribute by email, where available, and otherwise
by first-class U.S. mail, an Assumption Notice of any Executory Contracts or Unexpired Leases,
substantially in the form attached hereto as Exhibit 10, to the applicable counterparties to
Executory Contracts and Unexpired Leases that will be assumed pursuant to the Plan, within the
time periods and any reservation of rights period specified in the Plan.
G. Approval of Rejection Notice.
22. The Debtors are authorized to distribute by email, where available, and otherwise
by first-class U.S. mail, a Rejection Notice of any Executory Contracts or Unexpired Leases,
substantially in the form attached hereto as Exhibit 11, to the applicable counterparties to
Executory Contracts and Unexpired Leases that will be rejected pursuant to the Plan, within the
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time periods specified in the Plan. If certain, but not all, of a contract counterparty’s Executory
Contracts and Unexpired Leases are assumed pursuant to the Plan, the Confirmation Order will
be a determination that such counterparty’s Executory Contracts and Unexpired Leases that are
being rejected pursuant to the Plan are severable agreements that are not integrated with those
Executory Contracts and Unexpired Leases that are being assumed pursuant to the Plan. Parties
seeking to contest this finding with respect to their Executory Contracts or Unexpired Leases
must file a timely objection by the Confirmation Objection Deadline on the grounds that their
agreements are integrated and not severable.
H. Approval of the Procedures for Filing Objections to the Plan.
23. Objections to the Plan will not be considered by the Court unless such objections
are timely filed and properly served in accordance with this Order. Additionally, all objections
to Confirmation of the Plan or requests for modifications to the Plan, if any, must: (a) be in
writing, (b) conform to the Bankruptcy Rules and the Local Rules, (c) state, with particularity,
the legal and factual basis for the objection and, if practicable, a proposed modification to the
Plan (or related materials) that would resolve such objection, and (d) be filed with the Court
(contemporaneously with a proof of service) and served upon the notice parties identified in
the Combined Hearing Notice on or before November 4, 2024, at 4:00 p.m., prevailing Eastern
Time. All objections to Confirmation of the Plan are fully reserved.
IV. Miscellaneous.
24. Notwithstanding anything in this Order or the Plan to the contrary, not later than
12:00 p.m. ET on the date that is three (3) business days prior to the deadline to object to the
Plan, the Debtors shall serve upon counsel for Cigna (as defined in the Objection of Cigna to
Disclosure Statement for the Joint Chapter 11 Plan of Vyaire Medical, Inc. and Its Debtor
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Affiliates [Docket No. 567] (“Cigna Objection”)) written notice (email will suffice) (“Cigna
Notice”) of their irrevocable (conditioned on the Effective Date of the Plan) decision as to
whether or not the Debtors propose to assume or reject (or otherwise terminate) the Employee
Benefits Agreements (as defined in the Cigna Objection) pursuant to the Plan. If the Debtors
propose to terminate the Employee Benefits Agreements, the Cigna Notice shall state whether
the effective date of such termination shall be: (i) the Effective Date of the Plan; or (ii) such
other date as the Debtors may propose, upon at least 30 days’ notice. If the Debtors propose to
reject or otherwise terminate the ASO Agreement (as defined in the Cigna Objection), the Cigna
Notice shall also include the Debtors’ decision as to whether: (i) the payment of employee
healthcare claims that were incurred, but not submitted, processed and paid prior to the effective
date of termination (“Run-Out Claims”) will be funded by the Debtors (or a successor thereto)
for the twelve (12) month period following such rejection, and the source of such funding; or (ii)
the payment of Run-Out Claims will not be funded, in which case the Cigna Notice shall include
(x) irrevocable notice to Cigna of Debtors’ direction to not process Run-Out Claims after the
effective date of termination, (y) confirmation that affected current and former employees of the
Debtors (“Affected Employees”) have been given notice that Run-Out Claims will not be funded,
and (z) the name and contact information of a representative of the Debtors or their successor to
whom Cigna can direct inquiries from Affected Employees whose healthcare claims will not be
paid. This resolves the Cigna Objection.
25. 24. The Debtors may make non-substantive changes to the Disclosure Statement,
Plan, Combined Hearing Notice, Solicitation Packages, Non-Voting Status Notices, Ballots,
Publication Notice, Cover Letter, Solicitation and Voting Procedures, Plan Supplement Notice,
Assumption Notice, Rejection Notice, Voting and Tabulation Procedures, and related documents
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after the entry of this Order without further order of the Court, including changes to correct
typographical and grammatical errors, if any, and to make conforming changes to the Disclosure
Statement, the Plan, and any other materials in the Solicitation Packages before distribution.
26. 25. The Debtors reserve the right to modify the Plan without further order of the
Court in accordance with Article X of the Plan, including the right to withdraw the Plan as to any
or all Debtors at any time before the Confirmation Date.
27. 26. Nothing contained in the Motion or this Order, and no action taken pursuant
to the relief requested or granted (including any payment made in accordance with this Order),
is intended as or shall be construed or deemed to be: (a) an admission as to the amount, validity
or priority of, or basis for any claim against the Debtors under the Bankruptcy Code or other
applicable nonbankruptcy law; (b) a waiver of the Debtors’ or any other party in interest’s right
to dispute any claim on any grounds; (c) a promise or requirement to pay any particular claim;
(d) an implication, admission or finding that any particular claim is an administrative expense
claim, other priority claim or otherwise of a type specified or defined in the Motion or this Order;
(e) a request or authorization to assume, adopt, or reject any agreement, contract, or lease
pursuant to section 365 of the Bankruptcy Code; (f) an admission as to the validity, priority,
enforceability or perfection of any lien on, security interest in, or other encumbrance on property
of the Debtors’ estates; or (g) a waiver or limitation of any claims, causes of action or other
rights of the Debtors or any other party in interest against any person or entity under the
Bankruptcy Code or any other applicable law.
28. 27. All time periods set forth in this Order shall be calculated in accordance with
Bankruptcy Rule 9006(a).
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29. 28. 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.
30. 29. The Debtors are authorized to take all actions necessary to effectuate the relief
granted in this Order in accordance with the Motion.
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31. 30. 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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Exhibit 1
Disclosure Statement
[To Be Filed Separately]
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 16 of 130
Exhibit 2
Solicitation and Voting Procedures
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 17 of 130
I.
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)
)
SOLICITATION AND VOTING PROCEDURES
PLEASE TAKE NOTICE THAT on [●], 2024, the United States Bankruptcy Court for
the District of Delaware (the “Court”) entered an order [Docket No. [●]]
(the “Disclosure Statement Order”): (a) authorizing the above-captioned debtors and debtors in
possession (collectively, the “Debtors”) to solicit votes on the Joint Chapter 11 Plan of Vyaire
Medical, Inc. and Its Debtor Afffiliates [Docket No. [●]] (as modified, amended, or
supplemented from time to time, the “Plan”);2 (b) approving the Disclosure Statement for the
Joint Chapter 11 Plan of Vyaire Medical, Inc. and Its Debtor Afffiliates [Docket No. [●]]
(the “Disclosure Statement”) as containing “adequate information” pursuant to section 1125 of
the Bankruptcy Code; (c) approving the solicitation materials and documents to be included in
the solicitation packages; (d) approving procedures for soliciting, receiving, and tabulating votes
on the Plan and for filing objections to the Plan; and (e) granting related relief.
A. The Voting Record Date.
The Court has established October 2, 2024, as the record date for purposes of
determining which Holders of Claims in Class 4 (First Lien Claims) and Class 5 (Second Lien
Claims) are entitled to vote on the Plan (the “Voting Record Date”).
B. The Voting Deadline.
The Court has established November 4, 2024, at 4:00 p.m., prevailing Eastern Time,
as the voting deadline (the “Voting Deadline”) for the Plan. The Debtors may extend the Voting
Deadline without further order of the Court. To be counted as votes to accept or reject the Plan,
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 Plan.
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 18 of 130
I.
all ballots (collectively, the “Ballots”) must be properly executed, completed, and delivered
pursuant to the instructions provided on or with the Ballot.
C. Form, Content, and Manner of Notices.
1. The Solicitation Package.
The following materials shall constitute the solicitation package
(the “Solicitation Package”):
a. The Disclosure Statement Order (without exhibits, except for these
Solicitation and Voting Procedures);
b. the Combined Hearing Notice, in substantially the form attached as
Exhibit 8 to the Disclosure Statement Order;
c. the Cover Letter in support of the Plan, in substantially the form
attached as Exhibit 7 to the Disclosure Statement Order;
d. a Ballot with applicable voting instructions, attached as
Exhibits 3A and 3B to the Disclosure Statement Order, and, for
those Ballots distributed via first-class mail, a pre-addressed,
postage pre-paid return envelope;
e. the Disclosure Statement (and exhibits thereto, including the Plan
and all exhibits thereto); and
f. such other materials as the Court may direct.
2. Distribution of the Solicitation Package.
The Solicitation Packages shall provide certain materials, including the Ballots, the
Cover Letter, and the Combined Hearing Notice by email, where applicable, and otherwise by
first-class U.S. mail. In addition, these Solicitation and Voting Procedures, the Disclosure
Statement, the Plan, and the Order shall be made available on the Debtors’ case website at
https://omniagentsolutions.com/Vyaire. Paper copies are available upon request by contacting
Omni Agent Solutions, Inc., the claims and noticing agent retained by the Debtors in these
chapter 11 cases (the “Claims and Noticing Agent”) by: (a) writing via first class mail, to
Vyaire Medical, Inc. et al., c/o Omni Agent Solutions, Inc., 5955 De Soto Avenue, Suite
100, Woodland Hills, CA 91367; (b) writing via electronic mail to
Vyaireinquiries@omniagnt.com; or (c) calling the Debtors’ restructuring hotline at (866)
956-2140 (U.S. Toll-Free/Domestic) or +1 (818) 666-3635 (International).
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I.
The Debtors shall serve, or cause to be served, all of the materials in the Solicitation
Package (excluding the Ballots) on the U.S. Trustee, counsel to the Committee, and all parties
required to be notified under Bankruptcy Rule 2002 and Local Rule 2002-1 (the “2002 List”) as
of the Voting Record Date. In addition, the Debtors shall distribute (or cause to be distributed)
by email, where available, and otherwise by first-class mail the Solicitation Package to all
Holders of Claims in the Voting Classes by no later than October 7, 2024 (or as soon as
reasonably practicable thereafter), who are entitled to vote, as described in Section D below.
For purposes of serving the Solicitation Packages, the Debtors may rely on the address
and email address (as applicable) information for Voting Classes as compiled, updated, and
maintained by the Claims and Noticing Agent as of the Voting Record Date. The Debtors and
the Claims and Noticing Agent are not required to conduct any additional research for updated
addresses or email addresses based on undeliverable Solicitation Packages (including Ballots) or
Non-Voting Status Notices.
To avoid duplication and reduce expenses, the Debtors will use commercially reasonable
efforts to ensure that each Holder of a Claim entitled to vote on the Plan receives no more than
one Solicitation Package (and, therefore, one Ballot per Class) and is only entitled to submit one
Ballot on account of such Holder’s Claim in a particular Class.
3. Resolution of Disputed Claims for Voting Purposes; Resolution Event.
a. The Debtors shall have until ten (10) days prior to the Voting Deadline to object to
Proofs of Claims for purposes of voting on the Plan (the “Voting Claims Objection
Deadline”). To the extent the Debtors wish to object to a Proof of Claim that is
timely filed following the Voting Claims Objection Deadline but prior to the Voting
Deadline, the Debtors shall promptly file such objection. Any such objection that
remains pending as of the Confirmation Hearing Date will be heard on an emergency
basis at the Confirmation Hearing.
b. Absent a further order of the Court, the Holder of a Claim in a Voting Class that is the
subject of a pending objection on a “reduce and allow” basis shall be entitled to vote
such Claim in the reduced amount contained in such objection.
c. If a Claim in a Voting Class is subject to an objection other than a “reduce and allow”
objection that is filed with the Court on or prior to the Voting Deadline: (i) the
Debtors shall cause the applicable Holder to be served with a Non-Voting Status
Notice substantially in the form attached as Exhibit 6 to the Disclosure Statement
Order (which notice shall be served together with such objection); and (ii) the
applicable Holder shall not be entitled to vote to accept or reject the Plan on account
of such claim unless a Resolution Event (as defined herein) occurs as provided
herein.
d. A “Resolution Event” means the occurrence of one or more of the following events
no later than two (2) business days prior to the Voting Deadline:
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I.
an order of the Court is entered allowing such Claim pursuant to
section 502(b) of the Bankruptcy Code, after notice and a hearing;
an order of the Court is entered temporarily allowing such Claim for
voting purposes only pursuant to Bankruptcy Rule 3018(a), after
notice and a hearing;
a stipulation or other agreement is executed between the Holder and
the Debtors resolving the objection and allowing such Claim in an
agreed upon amount; or
the pending objection is voluntarily withdrawn by the objecting
party.
e. To the extent an applicable Claim is in a Voting Class, no later than one (1) business
day following the occurrence of a Resolution Event, or as soon as reasonably
practicable thereafter, the Debtors shall cause the Claims and Noticing Agent to
distribute via email, hand delivery, or overnight courier service a Solicitation Package
and a pre-addressed, postage pre-paid envelope, if applicable, to the relevant Holder
to the extent such Holder has not already received a Solicitation Package.
4. Non-Voting Status Notices for Unimpaired Classes and Classes Deemed to
Reject the Plan.
Certain Holders of Claims and Interests that are not classified pursuant to
section 1123(a)(1) of the Bankruptcy Code, or who are not entitled to vote because they are
Unimpaired or otherwise presumed to accept the Plan under section 1126(f) of the Bankruptcy
Code, will receive only the Notice of Non-Voting Status and Opt Out ofIn to Releases tofor
Holders of Unimpaired Claims or Interests Conclusively Presumed to Accept the Plan,
substantially in the form attached as Exhibit 4 to the Disclosure Statement Order. Certain
Holders of Claims who are not entitled to vote because they are deemed to reject the Plan under
section 1126(g) of the Bankruptcy Code will receive the Notice of Non-Voting Status and Opt
Out ofIn to Releases tofor Holders of Impaired Claims or Interests Conclusively Deemed to
Reject the Plan, substantially in the form attached as Exhibit 5 to the Disclosure Statement
Order. Such notice will instruct these Holders as to how they may obtain copies of the
documents contained in the Solicitation Package (excluding Ballots). Such notice will also
include a form by which all Holders or potential Holders of Claims or Interests can elect to opt
out ofin to the third-party release provision included in the Plan. The Holders of Claims may
affirmatively opt outin by completing and returning the form (the paper version or electronically)
or file an objection with the Court on or before November 4, 2024, at 4:00 p.m., prevailing
Eastern Time.
5. Notices Regarding Executory Contracts and Unexpired Leases Assumed,
Assumed and Assigned, or Rejected, in Each Case, Under the Plan.
Counterparties to Executory Contracts or Unexpired Leases that receive an Assumption
Notice or a Rejection Notice, substantially in the forms attached as Exhibit 10 and Exhibit 11 to
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I.
the Disclosure Statement Order, respectively, may file an objection to the Debtors’ proposed
assumption, assumption and assignment, rejection, and/or cure amount, each under the Plan, as
applicable. Any objection by a counterparty to an Executory Contract or Unexpired Lease to a
proposed assumption or assumption and assignment or related cure amount (in each case, under
the Plan) must be Filed, served, and actually received by the Debtors by no later than fourteen
(14) days after actual receipt of this Notice, provided that, if the Debtors modify the Assumed
Executory Contract or Unexpired Lease List (for the avoidance of doubt, under the Plan), any
party affected by such modifications shall have fourteen (14) days to object to the proposed
modified treatment from the date of their recept of notice of such modification. Any objection
by a counterparty to an Executory Contract or Unexpired Lease in connection with the rejection
of the Executory Contract(s) and Unexpired Lease(s) and/or related rejection damages proposed
in connection with the Plan must be filed with the Court by November 4, 2024, at 4:00 p.m.,
prevailing Eastern Time.
For the avoidance of doubt, the deadline to object to the proposed Cure Amounts,
proposed assignment to the Successful Bidder of any Assigned Contract, or ability of the
Successful Bidder to provide adequate assurance of future performance with respect to any
Assigned Contract is fourteen (14) days following service of any notice of proposed assumption
and assignment or as otherwise set in accordance with 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. 249] (the “Bidding Procedures Order”) or the applicable Sale Orders.
D. Voting and Tabulation Procedures.
1. Holders of Claims Entitled to Vote.
Only the following Holders of Claims in the Voting Classes shall be entitled to vote with
regard to such Claims:
a. Holders of Claims that are listed in the Schedules; and
b. The assignee of any Claim that was transferred on or before the Voting Record Date
by any Entity described in subparagraph (a) above; provided that such transfer or
assignment has been fully effectuated pursuant to the procedures set forth in
Bankruptcy Rule 3001(e) and such transfer is reflected on the Claims Register on the
Voting Record Date.
Claims in Classes 4 and 5. For voting purposes, claim amounts for Claims in Class 4
(First Lien Claims) and Class 5 (Second Lien Claims) will be established by reference to the
Plan.
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2. Voting and Ballot Tabulation Procedures.
The following voting procedures and standard assumptions shall be used in tabulating
Ballots, subject to the Debtors’ right to waive any of the below specified requirements for
completion and submission of Ballots so long as such requirement is not otherwise required by
the Bankruptcy Code, Bankruptcy Rules, or Local Rules.
a. Except as otherwise provided in the Solicitation and Voting Procedures, unless the
Ballot being furnished is timely submitted on or prior to the Voting Deadline (as the
same may be extended by the Debtors), the Debtors, in their sole discretion, shall be
entitled to reject such Ballot as invalid and, therefore, not count it in connection with
Confirmation of the Plan.
b. The Debtors will file with the Court by November 7, 2024 a voting report
(the “Voting Report”). The Voting Report shall, among other things, delineate every
Ballot that does not conform to the voting instructions or that contains any form of
irregularity including, but not limited to, those Ballots that are late or (in whole or in
material part) illegible, unidentifiable, lacking signatures, or lacking necessary
information, received via facsimile, or damaged (in each case, an “Irregular Ballot”).
The Voting Report shall indicate the Debtors’ intentions with regard to each Irregular
Ballot.
c. The method of delivery of Ballots to be sent to the Claims and Noticing Agent is at
the election and risk of each Holder. Except as otherwise provided, a Ballot will be
deemed delivered only when the Claims and Noticing Agent actually receives the
properly executed Ballot.
d. An executed Ballot is required to be submitted by the Entity submitting such Ballot.
Delivery of a Ballot to the Claims and Noticing Agent by facsimile, telecopy,
electronic mail, or any electronic means other than the Claims and Noticing Agent’s
online portal will not be valid.
e. No Ballot should be sent to the Debtors, the Debtors’ agents (other than the Claims
and Noticing Agent), or the Debtors’ financial or legal advisors, and if so sent will
not be counted.
f. If multiple Ballots are received from the same Holder with respect to the same Claim
prior to the Voting Deadline, the last properly executed Ballot timely received will be
deemed to reflect that voter’s intent and will supersede and revoke any prior received
Ballot.
g. Holders must vote all of their Claims within a particular Class either to accept or
reject the Plan and may not split any votes. Accordingly, a Ballot that partially rejects
and partially accepts the Plan will not be counted. Further, to the extent there are
multiple Claims within the same Class, the applicable Debtor may, in its discretion,
aggregate the Claims of any particular Holder within a Class for the purpose of
counting votes.
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h. Holders of Claims that may be asserted against multiple Debtors must vote such
Claims either to accept or reject the Plan at each such Debtor and may not vote any
such Claim to accept at one Debtor and reject at another Debtor. Accordingly, a
Ballot that rejects the Plan for a Claim at one Debtor and accepts the Plan for the
same Claim at another Debtor will not be counted.
i. A person signing a Ballot in its capacity as a trustee, executor, administrator,
guardian, attorney in fact, officer of a corporation, or otherwise acting in a fiduciary
or representative capacity of a Holder of Claims must indicate such capacity when
signing.
j. The Debtors, subject to a contrary order of the Court, may waive any defects or
irregularities as to any particular Irregular Ballot at any time, either before or after the
close of voting, and any such waivers will be documented in the Voting Report or a
supplemental voting report, as applicable.
k. Neither the Debtors, nor any other Entity, will be under any duty to provide
notification of defects or irregularities with respect to delivered Ballots other than as
provided in the Voting Report, nor will any of them incur any liability for failure to
provide such notification.
l. Unless waived or as ordered by the Court, any defects or irregularities in connection
with deliveries of Ballots must be cured by the Holder of Claims or their Nominee
prior to the Voting Deadline or such Ballots will not be counted.
m. In the event a designation of lack of good faith is requested by a party in interest
under section 1126(e) of the Bankruptcy Code, the Court will determine whether any
vote to accept and/or reject the Plan cast with respect to that Claim will be counted
for purposes of determining whether the Plan has been accepted and/or rejected.
n. Subject to any order of the Court, the Debtors reserve the right to reject any and all
Ballots not in proper form, the acceptance of which, in the opinion of the Debtors,
would not be in accordance with the provisions of the Bankruptcy Code or
the Bankruptcy Rules; provided that any such rejections will be documented in the
Voting Report.
o. If a Claim has been estimated or a Claim has otherwise been Allowed only for voting
purposes by order of the Court, such Claim shall be temporarily Allowed in the
amount so estimated or Allowed by the Court for voting purposes only, and not for
purposes of allowance or distribution.
p. If an objection to a Claim is filed, such Claim shall be treated in accordance with the
procedures set forth herein.
q. The following Ballots shall not be counted in determining the acceptance or rejection
of the Plan: (i) any Ballot that is illegible or contains insufficient information to
permit the identification of the Holder of such Claim; (ii) any Ballot cast by any
Entity that does not hold a Claim in a Voting Class; (iii) any Ballot cast for a Claim
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I.
scheduled as unliquidated, contingent, or disputed for which no Proof of Claim was
timely filed by the Voting Record Date (unless the applicable bar date has not yet
passed, in which case such Claim shall be entitled to vote in the amount of $1.00);
(iv) any unsigned Ballot or Ballot lacking an original signature; (v) any Ballot not
marked to accept or reject the Plan or marked both to accept and reject the Plan; and
(vi) any Ballot submitted by any Entity not entitled to vote pursuant to the procedures
described herein.
r. After the Voting Deadline, no Ballot may be withdrawn or modified without the prior
written consent of the Debtors; provided, for the avoidance of doubt, upon the
occurrence of a Termination Date (as defined in the Restructuring Support
Agreement) prior to the Confirmation Order being entered by the Court, any and all
consents or ballots tendered by the parties subject to such termination before the
Termination Date shall be deemed, for all purposes, to be null and void from the first
instance and shall be allowed to be withdrawn or modified pursuant to the
Restructuring Support Agreement.
s. The Debtors are authorized to enter into stipulations with the Holder of any Claim
agreeing to the amount of a Claim for voting purposes. The Debtors will provide
notice to the Committee of any such stipulation as soon as reasonably practicable
following entry into the stipulation.
t. Where any portion of a single Claim has been transferred to a transferee, all Holders
of any portion of such single Claim will be (i) treated as a single creditor for purposes
of the numerosity requirements in section 1126(c) of the Bankruptcy Code (and for
the other voting and solicitation procedures set forth herein), and (ii) required to vote
every portion of such Claim collectively to accept or reject the Plan. In the event that
(x) a Ballot, (y) a group of Ballots within a Voting Class received from a single
creditor, or (z) a group of Ballots received from the various Holders of multiple
portions of a single Claim partially reject and partially accept the Plan, such Ballots
shall not be counted.
u. For purposes of the numerosity requirement of section 1126(c) of the Bankruptcy
Code, separate Claims held by a single creditor in a particular Class will be
aggregated and treated as if such creditor held one Claim in such Class, and all votes
related to such Claim will be treated as a single vote to accept or reject the Plan;
provided that if separate affiliated entities hold Claims in a particular Class, these
Claims will not be aggregated and will not be treated as if such creditor held one
Claim in such Class, and the vote of each affiliated entity will be counted separately
as a vote to accept or reject the Plan.
E. Amendments to the Plan and Solicitation and Voting Procedures.
The Debtors reserve the right to make non-substantive or immaterial changes to the
Disclosure Statement, Plan (including, for the avoidance of doubt, the Plan Supplement), Ballots,
Combined Hearing Notice, and related documents without further order of the Court, including,
without limitation, changes to correct typographical and grammatical errors, if any, and to make
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conforming changes among the Disclosure Statement, the Plan, and any other materials in the
Solicitation Package before their distribution; provided that all such modifications shall be made
in accordance with the terms of the document being modified, the Plan, and the consent
requirements contained in the Restructuring Support Agreement and/or the DIP Credit
Agreement.
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Exhibit 3A
Form of Ballot for Holders of Class 4 First Lien Claims
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 27 of 130
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)
)
BALLOT FOR VOTING TO
ACCEPT OR REJECT THE JOINT CHAPTER 11 PLAN OF
VYAIRE MEDICAL, INC. AND ITS DEBTOR AFFILIATES
CLASS 4 BALLOT FOR HOLDERS OF CLASS 4 FIRST LIEN CLAIMS
PLEASE READ AND FOLLOW THE ENCLOSED INSTRUCTIONS FOR
COMPLETING BALLOTS CAREFULLY BEFORE COMPLETING THIS BALLOT.
IN ORDER FOR YOUR VOTE TO BE COUNTED, THIS BALLOT MUST BE
COMPLETED, EXECUTED, AND RETURNED SO AS TO BE ACTUALLY RECEIVED
BY THE CLAIMS AND NOTICING AGENT BY NOVEMBER 4, 2024, AT 4:00 P.M.,
PREVAILING EASTERN TIME (THE “VOTING DEADLINE”) IN ACCORDANCE
WITH THE FOLLOWING:
The above-captioned debtors and debtors in possession (collectively, the “Debtors”), are
soliciting votes with respect to the Joint Chapter 11 Plan of Vyaire Medical, Inc. and Its Debtor
Affiliates [Docket No.[●]] (as may be amended, supplemented, or otherwise modified from time
to time, the “Plan”) as set forth in the Disclosure Statement for the Joint Chapter 11 Plan of
Vyaire Medical, Inc. and Its Debtor Affiliates [Docket No. [●]] (as may be amended,
supplemented, or otherwise modified from time to time, the “Disclosure Statement”).
The Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”) has approved the
Disclosure Statement on an interim basis as containing adequate information pursuant to
section 1125 of title 11 of the United States Code
(the “Bankruptcy Code”), by entry of an order on [●], 2024 [Docket No. [●]] (the “Disclosure
Statement Order”).
The Bankruptcy Court’s approval of the Disclosure Statement does not indicate approval of the
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.
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 28 of 130
Plan by the Bankruptcy Court. Capitalized terms used but not otherwise defined herein shall
have the meanings set forth in the Plan.
You are receiving this ballot (this “Ballot”) because you are a Holder of a Class 4 First Lien
Claim (a “Voting Class”) as of October 2, 2024 (the “Voting Record Date”). Accordingly, you
have a right to vote to accept or reject the Plan.
YOUR VOTE ON THIS BALLOT WILL BE APPLIED TO EACH DEBTOR AGAINST
WHICH YOU HAVE A CLAIM.
Your rights are described in the Disclosure Statement, which was included in the package
(the “Solicitation Package”) you are receiving with this Ballot (as well as the Plan, Disclosure
Statement Order, and certain other materials).
If you received Solicitation Package materials in electronic format and desire paper copies, or if
you need to obtain additional Solicitation Packages, you may obtain them by (a) writing via first
class mail, to Vyaire Medical, Inc. et al., c/o Omni Agent Solutions, Inc., 5955 De Soto Avenue,
Suite 100, Woodland Hills, CA 91367; (b) writing via electronic mail to
Vyaireinquiries@omniagnt.com; or (c) calling the Debtors’ restructuring hotline at (866)
956-2140 (U.S. Toll-Free/Domestic) or +1 (818) 666-3635 (International). You may also obtain
copies of any pleadings filed in these chapter 11 cases (a) for a fee via PACER at:
http://www.deb.uscourts.gov; or (b) at no charge from Omni Agent Solutions, Inc. by accessing
the Debtors’ restructuring website at https://omniagentsolutions.com/Vyaire.
U.S. Toll Free: (866) 956-2140
International: +1 (818) 666-3635
This Ballot may not be used for any purpose other than for casting votes to accept or reject
the Plan and making certain certifications with respect to the Plan. If you believe you have
received this Ballot in error, or if you believe you have received the wrong ballot, please contact
the Claims and Noticing Agent immediately at the address, telephone number, or email address
set forth above.
You should review the Disclosure Statement, the Plan, and the instructions contained
herein before you vote. You may wish to seek legal advice concerning the Plan and the Plan’s
classification and treatment of your Claim. Your Claim has been placed in Class 4 under the
Plan.
PLEASE SUBMIT YOUR BALLOT BY ONE OF THE FOLLOWING TWO METHODS:
Electronically, Via Ballot Portal. Submit your Ballot via upload through the Claims and
Noticing Agent’s online portal, by visiting https://omniagentsolutions.com/Vyaire
(the “Ballot Portal”) and following the instructions to submit your Ballot.
Creditors who cast a Ballot using the Ballot Portal should NOT also submit a paper Ballot.
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The Claims and Noticing Agent’s Ballot Portal is the sole manner in which Ballots will be
accepted via electronic or online transmission. Ballots submitted by facsimile, email, or
other means of electronic transmission will not be counted.
OR
Via Paper Ballot (if applicable). Complete, sign, and date this Ballot and return it (with an
original signature) promptly via first-class mail (or in the enclosed reply envelope
provided), overnight courier, or hand delivery to:
By regular mail, overnight mail, or hand delivery at:
Vyaire Medical, Inc. Ballot Processing
c/o Omni Agent Solutions, Inc.
5955 De Soto Avenue, Suite 100
Woodland Hills, CA 91367
If you would like to coordinate hand delivery of your Ballot, please send an email to
Vyaireinquiries@omniagnt.com and provide the anticipated date and time of your
delivery.
Item 1. Amount of Claim.
The undersigned hereby certifies that as of the Voting Record Date, the undersigned was the
Holder of a Class 4 First Lien Claim in the following aggregate unpaid amount:
$_______________
Item 2. Vote on Plan.
The Holder of the Class 4 First Lien Claim against the Debtors, the aggregate amount of which is
set forth in Item 1, votes to (please check one):
ACCEPT (vote FOR) the Plan REJECT (vote AGAINST) the Plan
Your vote on the Plan will be applied to each applicable Debtor in the same manner and in
the same amount as indicated in Item 1 and Item 2 above.
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Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 30 of 130
2
Item 3. Important information regarding releases under the Plan.
Article VIII.B of the Plan provides for a release by the Debtors (the “Debtor Release”):
Except as otherwise specifically provided herein or the Confirmation Order,
pursuant to section 1123(b) of the Bankruptcy Code, for good and valuable consideration,
the adequacy of which is hereby confirmed, upon entry of the Confirmation Order, as of
the Effective Date, each Released Party is, and is deemed, hereby fully, conclusively,
absolutely, unconditionally, irrevocably, and forever released and discharged by each and
all of the Debtors, the Wind-Down Debtors, and their Estates, in each case on behalf of
themselves and their respective successors, assigns, and representatives from any and all
Claims, obligations, rights, suits, damages, and Causes of Action, remedies, and liabilities
whatsoever, whether known or unknown, including any derivative claims asserted or
assertable on behalf of any of the Debtors, the Wind-Down Debtors, and their Estates, that
the Debtors, the Wind-Down Debtors, or their Estates would have been legally entitled to
assert in their own right (whether individually or collectively), or on behalf of the Holder
of any Claim against, or Interest in, a Debtor or other Entity, or that any Holder of any
Claim against or Interest in a Debtor or other Entity could have asserted on behalf of the
Debtors based on or relating to, or in any manner arising from, in whole or in part, the
Debtors (including the capital structure, management, ownership, or operation thereof or
otherwise), the subject matter of, or the transactions or events giving rise to, any Claim or
Interest that is treated in the Plan, the business or contractual arrangements between any
Debtor or the Wind-Down Debtors and any Released Party, the Debtors’ in- or
out-of-court restructuring efforts, the purchase, sale, or rescission of any security of the
Debtors or the Wind-Down Debtors, intercompany transactions between or among the
Debtors or between the Debtors and their non-Debtor Affiliates, the First Lien Credit
Agreement, the Second Lien Credit Agreement, the Note Purchase Agreement, the DIP
Facility, the DIP Facility Documents, the Disclosure Statement Order, the Confirmation
Order, the Sale Order, the First Day Pleadings, the Chapter 11 Cases, the formulation,
preparation, dissemination, solicitation, negotiation, entry into, or filing of the
Restructuring Support Agreement, the Disclosure Statement, the Plan, the Plan
Supplement, the Prepetition Loan Documents, any other Definitive Document, or any
Restructuring Transaction, contract, instrument, release, or other agreement or document
created or entered into in connection with the Restructuring Support Agreement, the
Disclosure Statement, the DIP Facility, the Plan, the Plan Supplement, the Sale
Transactions, any other Definitive Document, any of the Restructuring Transactions, the
Chapter 11 Cases, the filing of the Chapter 11 Cases, the pursuit of Confirmation, the
pursuit of Consummation, the administration and implementation of the Plan, including
the issuance or distribution of securities pursuant to the Plan, or the distribution of
property under the Plan or any other related agreement, or upon any other act or
2 The Plan provisions referenced herein are for summary purposes only and do not include all provisions of the
Plan that may affect your rights. If there is any inconsistency between the provisions set forth herein and the
Plan, the Plan governs. Please read the Plan carefully before completing this Ballot.
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Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 31 of 130
omission, transaction, agreement, event, or other occurrence taking place on or before the
Effective Date related or relating to any of the foregoing.
Notwithstanding anything to the contrary in the foregoing, the releases set forth
above do not release (i) any post-Effective Date obligations of any party or Entity under the
Plan, the Confirmation Order, any Restructuring Transaction, or any document,
instrument, or agreement (including those set forth in the Plan Supplement) executed to
implement the Plan or the Restructuring Transactions, (ii) any Causes of Action
specifically retained by the Debtors pursuant to the Schedule of Retained Causes of Action
to be attached as an exhibit to the Plan Supplement, or (iii) any Claims or Causes of Action
arising out of, or related to, any act or omission of a Released Party that is determined by a
Final Order of the Bankruptcy Court or any other court of competent jurisdiction to have
constituted actual fraud, gross negligence, or willful misconduct (it being agreed that any
Released Parties’ consideration, approval, or receipt of any distribution did not arise from
or relate to actual fraud, gross negligence, or willful misconduct).
Entry of the Confirmation Order shall constitute the Bankruptcy Court’s approval,
pursuant to Bankruptcy Rule 9019, of the releases set forth in Article VIII.B of the Plan,
which includes by reference each of the related provisions and definitions contained in the
Plan, and further, shall constitute the Bankruptcy Court’s finding that such release is: (1)
in exchange for the good and valuable consideration provided by the Released Parties,
including, the Released Parties’ contribution to facilitating the Restructuring Transactions
and implementing the Plan; (2) a good faith settlement and compromise of the Claims
released by the Debtor Release; (3) in the best interests of the Debtors and all Holders of
Claims and Interests; (4) fair, equitable, and reasonable; (5) given and made after due
notice and opportunity for a hearing; and (6) a bar to any of the Debtors, the Wind-Down
Debtors, or the Debtors’ Estates asserting any Claim or Cause of Action released pursuant
to the Debtor Release.
Article VIII.C of the Plan provides for a third-party release by Holders of Claims and Interests
(the “Third-Party Release”):
Except as otherwise specifically provided in the Plan or the Confirmation Order,
pursuant to section 1123(b) of the Bankruptcy Code, for good and valuable consideration,
the adequacy of which is hereby confirmed, upon entry of the Confirmation Order, as of
the Effective Date, each Releasing Party is, and is deemed to have, hereby fully,
conclusively, absolutely, unconditionally, irrevocably and forever released and discharged
each Debtor, Wind-Down Debtor, and Released Party from any and all Claims,
obligations, rights, suits, damages, and Causes of Action, remedies, and liabilities
whatsoever, whether known or unknown, including any derivative claims asserted or
assertable on behalf of the Debtors, the Wind-Down Debtors, and their Estates (as
applicable) that such Entity would have been legally entitled to assert in their own right
(whether individually or collectively), based on or relating to, or in any manner arising
from, in whole or in part, the Debtors (including the capital structure, management,
ownership, or operation thereof or otherwise), the purchase, sale, or recission of any
security of the Debtors or the Wind-Down Debtors, the subject matter of, or the
transactions or events giving rise to, any Claim or Interest that is treated in the Plan, the
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business or contractual arrangements between any Debtor or the Wind-Down Debtors and
any Released Party, the Debtors’ in- or out-of-court restructuring efforts, intercompany
transactions between or among the Debtors or between the Debtors and their non-Debtor
Affiliates, the First Lien Credit Agreement, the Second Lien Credit Agreement, the Note
Purchase Agreement, the DIP Facility, the DIP Facility Documents, the Disclosure
Statement Order, the Confirmation Order, the Sale Order, the First Day Pleadings, the
Chapter 11 Cases, the formulation, preparation, dissemination, solicitation, negotiation,
entry into, or filing of the Restructuring Support Agreement, the Disclosure Statement, the
Plan, the Plan Supplement, the Prepetition Loan Documents, any other Definitive
Document, or any Restructuring Transaction, contract, instrument, release, or other
agreement or document created or entered into in connection with the Restructuring
Support Agreement, the Disclosure Statement, the DIP Facility, the Plan, the Plan
Supplement, the Sale Transactions, any other Definitive Document, any of the
Restructuring Transactions, the Chapter 11 Cases, the filing of the Chapter 11 Cases, the
pursuit of Confirmation, the pursuit of Consummation, the administration and
implementation of the Plan, including the issuance or distribution of securities pursuant to
the Plan, or the distribution of property under the Plan or any other related agreement, or
upon any other act or omission, transaction, agreement, event, or other occurrence taking
place on or before the Effective Date related or relating to any of the foregoing.
Notwithstanding anything to the contrary in the foregoing, the releases set forth
above do not release (i) any post-Effective Date obligations of any party or Entity under the
Plan, any Restructuring Transaction, or any document, instrument, or agreement
(including those set forth in the Plan Supplement) executed to implement the Plan, (ii) any
Causes of Action specifically retained by the Debtors pursuant to the Schedule of Retained
Causes of Action to be attached as an exhibit to the Plan Supplement, or (iii) any Claims or
Causes of Action arising out of, or related to, any act or omission of a Released Party that
is determined by a Final Order of the Bankruptcy Court or any other court of competent
jurisdiction to have constituted actual fraud, gross negligence, or willful misconduct (it
being agreed that any Released Parties’ consideration, approval, or receipt of any
distribution did not arise from or relate to actual fraud, gross negligence, or willful
misconduct).
Entry of the Confirmation Order shall constitute the Bankruptcy Court’s approval,
pursuant to Bankruptcy Rule 9019, of the releases set forth in Article VIII.C of the Plan,
which includes by reference each of the related provisions and definitions contained in the
Plan, and further, shall constitute the Bankruptcy Court’s finding that such releases are:
(1) consensual; (2) essential to the Confirmation of the Plan; (3) given in exchange for the
good and valuable consideration provided by the Released Parties; (4) a good faith
settlement and compromise of the Claims released by the releases provided in Article
VIII.C of the Plan; (5) in the best interests of the Debtors and their Estates; (6) fair,
equitable, and reasonable; (7) given and made after due notice and opportunity for a
hearing; and (8) a bar to any of the Releasing Parties asserting any Claim or Cause of
Action released pursuant to the releases provided in Article VIII.C of the Plan.
Definitions Related to the Debtor Release and the Third-Party Release:
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UNDER THE PLAN, “AVOIDANCE ACTIONS” MEANS ANY AND ALL AVOIDANCE,
RECOVERY, OR SUBORDINATION ACTIONS OR REMEDIES THAT MAY BE
BROUGHT BY OR ON BEHALF OF THE DEBTORS OR THEIR ESTATES UNDER THE
BANKRUPTCY CODE OR APPLICABLE NON-BANKRUPTCY LAW, INCLUDING
ACTIONS OR REMEDIES UNDER SECTIONS 544, 547, 548, 549, 550, 551, 552, OR 553 OF
THE BANKRUPTCY CODE.
UNDER THE PLAN, “DEBTOR RELEASE” MEANS THE RELEASES GIVEN ON BEHALF
OF THE DEBTORS AND THEIR ESTATES AS SET FORTH IN ARTICLE VIII.B OF THE
PLAN.
UNDER THE PLAN, “RELEASED PARTIES” MEANS, EACH OF, AND IN EACH CASE,
IN THEIR RESPECTIVE CAPACITIES AS SUCH: (A) THE DEBTORS AND THE
WIND-DOWN DEBTORS, AS APPLICABLE; (B) THE PLAN ADMINISTRATOR; (C)
EACH CONSENTING STAKEHOLDER; (D) THE COMMITTEE AND ITS MEMBERS; (E)
THE PURCHASERS; (F) THE DIP LENDERS; (G) THE AGENTS; (H) ALL HOLDERS OF
CLAIMS WHO OPT IN TO GRANTING THESE RELEASES SET FORTH IN THE PLAN; (I)
ALL HOLDERS OF INTERESTS WHO OPT IN TO GRANTING THESE RELEASES SET
FORTH IN THE PLAN; (J) EACH CURRENT AND FORMER AFFILIATE OF EACH
ENTITY IN CLAUSE (A) THROUGH THE FOLLOWING CLAUSE (K); AND (K) EACH
RELATED PARTY OF EACH ENTITY IN CLAUSE (A) THROUGH THIS CLAUSE (K),
EACH IN THEIR CAPACITY AS SUCH (UNLESS ANY SUCH ENTITY OR RELATED PARTY HAS
OPTED OUT OF THE RELEASES CONTAINED IN ARTICLE VIII OF THE PLAN, IN WHICH CASE SUCH
ENTITY OR RELATED PARTY, AS APPLICABLE, SHALL NOT BE A RELEASED PARTY); PROVIDED
THAT, IN EACH CASE, AN ENTITY SHALL NOT BE A RELEASED PARTY IF IT: (X)
ELECTS TO OPT OUT OF THE RELEASES SET FORTH IN ARTICLE VIII.C OF THE PLAN; OR (Y)
TIMELY OBJECTS TO THE RELEASES SET FORTH IN ARTICLE VIII.C OF THE PLAN
AND SUCH OBJECTION IS NOT WITHDRAWN OR OTHERWISE RESOLVED BEFORE
THE CONFIRMATION ORDER IS ENTERED.
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Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 34 of 130
UNDER THE PLAN, “RELEASING PARTIES” MEANS, EACH OF, AND IN EACH CASE,
IN THEIR RESPECTIVE CAPACITIES AS SUCH: (A) THE DEBTORS AND THE
WIND-DOWN DEBTORS, AS APPLICABLE; (B) THE PLAN ADMINISTRATOR; (C)
EACH CONSENTING STAKEHOLDER; (D) THE COMMITTEE AND ITS MEMBERS; (E)
THE PURCHASERS; (F) THE DIP LENDERS; (G) THE AGENTS; (H) ALL HOLDERS OF
CLAIMS WHO OPT IN TO GRANTING THESE RELEASES SET FORTH IN THE PLAN; (I)
ALL HOLDERS OF INTERESTS WHO OPT IN TO GRANTING THESE RELEASES SET
FORTH IN THE PLAN; (J) EACH CURRENT AND FORMER AFFILIATE OF EACH
ENTITY IN CLAUSE (A) THROUGH THE FOLLOWING CLAUSE (K); AND (K) EACH
RELATED PARTY OF EACH ENTITY IN CLAUSE (A) THROUGH THIS CLAUSE (K),
FOR WHICH SUCH ENTITY IS LEGALLY ENTITLED TO BIND SUCH RELATED PARTY
TO THE RELEASES CONTAINED IN THE PLAN UNDER APPLICABLE LAW;
PROVIDED, HOWEVER, THAT IN EACH CASE, AN ENTITY SHALL NOT BE
RELEASING PARTY IF IT: (X) ELECTS TO OPT OUT OF THE RELEASE CONTAINED IN THE
PLAN; OR (Y) TIMELY OBJECTS TO THE RELEASES SET FORTH IN ARTICLE VIII.C OF
THE PLAN AND SUCH OBJECTION IS NOT WITHDRAWN OR OTHERWISE RESOLVED
BEFORE THE CONFIRMATION ORDER IS ENTERED.
IMPORTANT INFORMATION REGARDING THE RELEASES:
AS A HOLDER OF THE CLAIMS AGAINST OR INTERESTS IN THE VOTING
CLASSES IDENTIFIED IN ITEM 1DEBTORS, YOU AREMAY BE A “RELEASING PARTY”
UNDER THE PLAN AND ARE DEEMED TO PROVIDE THE THIRD-PARTY RELEASE
CONTAINED IN ARTICLE VIII.C OF THE PLAN, AS SET FORTH ABOVE. IF YOU MAY
CHECK THE BOX BELOW TO ELECT NOT TO GRANT THE RELEASE CONTAINED IN
ARTICLE VIII.C OF THE PLAN. , YOU WILL NOT BE CONSIDERED A “RELEASING
PARTY” UNDER THE PLAN IF YOU CHECK THE BOX BELOW AND SUBMIT THE OPT OUT BY
THE VOTING DEADLINE. YOU MAY ALSO VALIDLY OPT OUT OF THE RELEASES BY FILING. AN
ENTITY SHALL NOT BE A “RELEASING PARTY” UNDER THE PLAN IF IT FILES AN
OBJECTION TO THE RELEASES CONTAINED IN THE PLAN WITH THE BANKRUPTCY
COURT PRIOR TO THE PLAN OBJECTION DEADLINE THAT IS NOT WITHDRAWN OR
OTHERWISE RESOLVED BEFORE THE CONFIRMATION ORDER IS ENTERED. THE
ELECTION TO WITHHOLD CONSENT TO GRANT THE THIRD-PARTY RELEASE IS AT
YOUR OPTION, SUBJECT TO ANY OBLIGATION YOU MAY HAVE UNDER THE
RESTRUCTURING SUPPORT AGREEMENT. BY OPTING IN TO THE RELEASES SET
FORTH IN ARTICLE VIII.C OF THE PLAN, YOU WILL RECEIVE THE BENEFIT OF
OBTAINING THE RELEASES SET FORTH IN ARTICLE VIII.C OF THE PLAN IF YOU
ARE A “RELEASED PARTY” IN CONNECTION THEREWITH.
YOU WILL RECEIVE THE SAME TREATMENT ON ACCOUNT OF YOUR
CLAIM(S) UNDER THE PLAN REGARDLESS OF WHETHER YOU ELECT TO NOT
GRANT THE RELEASE CONTAINED IN ARTICLE VIII.C OF THE PLAN.
PLEASE TAKE NOTICE THAT IF YOU VOTE IN FAVOR OF THE PLAN, YOU WILL BE
CONSIDERED A “RELEASING PARTY” UNDER THE PLAN AND CANNOT OPT OUT OF THE
RELEASES CONTAINED THEREIN. ANY OPT OUT OF THE RELEASES CONTAINED IN THE PLAN
SUBMITTED ON YOUR BEHALF WILL NOT BE COUNTED.
8
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 35 of 130
The Holder of the Claim identified in Item 1 elects to:
☐ OPT OUT ofIN to the Third Party Release
Article VIII.D of the Plan provides for an exculpation of certain parties (the “Exculpation”):
Except as otherwise expressly provided in the Plan or the Confirmation Order, to
the fullest extent permitted by applicable law and solely to the extent such acts or omissions
occurred between the Petition Date and the Effective Date, no Exculpated Party shall have
or incur any liability for, and each Exculpated Party is released and exculpated from any
Cause of Action for any claim related to any act or omission in connection with, relating to,
or arising out of, the Chapter 11 Cases, the formulation, preparation, dissemination,
negotiation, or filing of the Disclosure Statement, the Sale Transactions, the Plan, the Plan
Supplement, any other Definitive Document, or any Restructuring Transaction, or any
contract, instrument, release or other agreement or document created or entered into in
connection with the Disclosure Statement, the Plan, the Plan Supplement, the Sale
Transactions, any other Definitive Document, any of the Restructuring Transactions, the
filing of the Chapter 11 Cases, the participation in the DIP Facility, the pursuit of the Sale
Transactions, the pursuit of Confirmation, the pursuit of Consummation, the
administration and implementation of the Plan, including the issuance of securities
pursuant to the Plan, or the distribution of property under the Plan or any other related
agreement, except for claims related to any act or omission that is determined in a Final
Order to have constituted actual fraud, willful misconduct, or gross negligence, but in all
respects such Entities shall be entitled to reasonably rely upon the advice of counsel with
respect to their duties and responsibilities pursuant to the Plan. The Exculpated Parties
have, and upon Consummation shall be deemed to have, participated in good faith and in
compliance with the applicable laws with regard to the solicitation of votes and distribution
of consideration pursuant to the Plan and, therefore, are not, and on account of such
distributions shall not be, liable at any time for the violation of any applicable law, rule, or
regulation governing the solicitation of acceptances or rejections of the Plan or such
distributions made pursuant to the Plan.
Article VIII.E of the Plan establishes an injunction (the “Injunction”):
In accordance with Bankruptcy Code section 1141(d)(3), the Plan does not
discharge the Debtors. Bankruptcy Code section 1141(c) nevertheless provides, among
other things, that the property dealt with by the Plan is free and clear of all Claims and
Interests against the Debtors. Except as otherwise specifically provided in the Plan or for
obligations issued or required to be paid pursuant to the Plan or the Confirmation Order,
all Entities who have held, hold, or may hold Claims or Interests that have been released or
are subject to exculpation pursuant to the Plan are permanently enjoined, from and after
the Effective Date, from taking any of the following actions against, as applicable, the
Debtors, the Wind-Down Debtors, the Exculpated Parties, or the Released Parties, and any
successors, assigns or representatives of such Persons or Entities: (a) commencing or
continuing in any manner any action or other proceeding of any kind on account of or in
connection with or with respect to any such Claims or Interests; (b) enforcing, attaching,
9
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 36 of 130
collecting, or recovering by any manner or means any judgment, award, decree, or order
against such Entities on account of or in connection with or with respect to any such
Claims or Interests; (c) creating, perfecting, or enforcing any encumbrance of any kind
against such Entities or the property or the estates of such Entities on account of or in
connection with or with respect to any such Claims or Interests; (d) asserting any right of
setoff, subrogation, or recoupment of any kind against any obligation due from such
Entities or against the property of such Entities on account of or in connection with or with
respect to any such Claims or Interests unless such Holder has Filed a motion requesting
the right to perform such setoff on or before the Effective Date; and (e) commencing or
continuing in any manner any action or other proceeding of any kind on account of or in
connection with or with respect to any such Claims or Interests released or settled
pursuant to the Plan. Notwithstanding anything to the contrary in the foregoing, the
injunction set forth above does not enjoin the enforcement of any obligations arising on or
after the Effective Date of any Person or Entity under the Plan, any post-Effective Date
transaction contemplated by the Restructuring Transactions, or any document,
instrument, or agreement (including those set forth in the Plan Supplement) executed to
implement the Plan.
Upon entry of the Confirmation Order, all Holders of Claims and Interests and
their respective current and former employees, agents, officers, directors, managers,
principals, and direct and indirect Affiliates, in their capacities as such, shall be enjoined
from taking any actions to interfere with the implementation or Consummation of the
Plan. Each Holder of an Allowed Claim or Allowed Interest, as applicable, by accepting,
or being eligible to accept, distributions under or Reinstatement of such Claim or Interest,
as applicable, pursuant to the Plan, shall be deemed to have consented to the injunction
provisions set forth in Article VIII.E of the Plan.
No Person or Entity may commence or pursue a Claim or Cause of Action of any kind against the
Debtors, the Wind-Down Debtors, the Exculpated Parties, or the Released Parties that relates to or is
reasonably likely to relate to any act or omission in connection with, relating to, or arising out of a Claim or
Cause of Action subject to Article VIII.E of the Plan, without the Bankruptcy Court (i) first determining,
after notice and a hearing, that such Claim or Cause of Action represents a colorable Claim of any kind, and
(ii) specifically authorizing such Person or Entity to bring such Claim or Cause of Action against any such
Debtor, Wind-Down Debtor, Exculpated Party, or Released Party.
Item 4. Certifications.
By signing this Ballot, the undersigned certifies to the Bankruptcy Court and the Debtors that:
(a) as of the Voting Record Date, the Entity is the Holder (or authorized signatory for
a Holder) of the Claims in the Voting Class(es) as set forth in Item 1;
(b) the Entity (or in the case of an authorized signatory, the Holder) has reviewed a
copy of the Disclosure Statement, the Plan, and the remainder of the Solicitation
Package and acknowledges that the solicitation is being made pursuant to the
terms and conditions set forth therein;
10
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 37 of 130
(c) the Entity has not relied on any statement made or other information received
from any person with respect to the Plan other than the information contained in
the Solicitation Package or other publicly available materials;
(e) no other Ballots with respect to the amount of the Claim identified in Item 1 has
been cast or, if any other Ballots have been cast with respect to such Claim, then
any such earlier Ballots are hereby revoked;
(f) the Entity understands and acknowledges that if multiple Ballots are submitted
voting the Claim set forth in Item 1, only the last properly completed Ballot
voting the Claim and received by the Claims and Noticing Agent before the
Voting Deadline shall be deemed to reflect the voter’s intent and thus to
supersede and revoke any prior Ballots received by the Claims and Noticing
Agent; and
(g) the Entity understands and acknowledges that all authority conferred or agreed to
be conferred pursuant to this Ballot, and every obligation of the Holder hereunder,
shall be binding upon the transferees, successors, assigns, heirs, executors,
administrators, and legal representatives of the Holder and shall not be affected
by, and shall survive, the death or incapacity of the Holder.
11
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 38 of 130
Name of Holder:
(Print or Type)
Signature:
Name of Signatory:
(If other than the Holder)
Title:
Address:
Telephone
Number:
Email:
Date Completed:
IF THE CLAIMS AND NOTICING AGENT DOES NOT ACTUALLY RECEIVE THIS
BALLOT ON OR BEFORE NOVEMBER 4, 2024, AT 4:00 P.M., PREVAILING
EASTERN TIME, AND IF THE VOTING DEADLINE IS NOT EXTENDED, YOUR
VOTE TRANSMITTED BY THIS BALLOT MAY BE COUNTED TOWARD
CONFIRMATION OF THE PLAN ONLY IN THE DISCRETION OF THE DEBTORS.
INSTRUCTIONS FOR COMPLETING THIS BALLOT
1. The Debtors are soliciting the votes of Holders of Class 4 and 5 Claims with respect to
the Plan referred to in the Disclosure Statement. PLEASE READ THE PLAN AND
DISCLOSURE STATEMENT CAREFULLY BEFORE COMPLETING THIS
BALLOT.
2. The Plan can be confirmed by the Bankruptcy Court and thereby made binding upon you
if it is accepted by the Holders of at least two-thirds in amount and more than one-half in
number of Claims or at least two-thirds in amount of Interests in at least one class that
votes on the Plan and if the Plan otherwise satisfies the requirements for confirmation
provided by section 1129(a) of the Bankruptcy Code. Please review the Disclosure
Statement for more information.
3. To ensure that your Ballot is counted, you must complete and submit this Ballot as
instructed herein. Ballots will not be accepted by electronic mail or facsimile.
12
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 39 of 130
4. Use of Ballot. To ensure that your Ballot is counted, you must: (a) complete your Ballot
in accordance with these instructions; (b) clearly indicate your decision either to accept or
reject the Plan in the boxes provided in Item 2 of the Ballot; and (c) clearly sign and
submit your Ballot as instructed herein.
5. Your Ballot must be returned to the Claims and Noticing Agent so as to be actually
received by the Claims and Noticing Agent on or before the Voting Deadline. The
Voting Deadline is November 4, 2024, at 4:00 p.m., prevailing Eastern Time.
6. If a Ballot is received after the Voting Deadline and if the Voting Deadline is not
extended, it may be counted only in the sole and absolute discretion of the Debtors.
Additionally, the following Ballots will not be counted:
(a) any Ballot that partially rejects and partially accepts the Plan;
(b) Ballots sent to the Debtors, the Debtors’ agents (other than Claims and Noticing
Agent), the Debtors’ financial or legal advisors or any other person (other than the
Claims and Noticing Agent);
(c) Ballots sent by electronic mail or facsimile;
(d) any Ballot that is illegible or contains insufficient information to permit the
identification of the Holder of the Claim;
(e) any Ballot cast by an Entity that does not hold a claim in Classes 4 and 5;
(f) any Ballot submitted by a Holder not entitled to vote pursuant to the Plan;
(g) any unsigned Ballot (for the avoidance of doubt, Ballots validly submitted
through the Ballot Portal will be deemed signed);
(h) any non-original Ballot (for the avoidance of doubt, Ballots validly submitted
through the Ballot Portal will be deemed original); and/or
(i) any Ballot not marked to accept or reject the Plan or any Ballot marked both to
accept and reject the Plan.
7. The method of delivery of Ballots to the Claims and Noticing Agent is at the election and
risk of each Holder of Claim. Except as otherwise provided herein, such delivery will be
deemed made only when the Claims and Noticing Agent actually receives the originally
executed Ballot. In all cases, Holders should allow sufficient time to assure timely
delivery.
8. If multiple Ballots are received from the same Holder Claim with respect to the same
Class prior to the Voting Deadline, the latest, timely received, and properly completed
Ballot will supersede and revoke any earlier received Ballots.
13
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 40 of 130
9. You must vote all of your Claims within your respective class either to accept or reject
the Plan and may not split your vote.
10. This Ballot does not constitute, and shall not be deemed to be, (a) a Proof of Claim or
(b) an assertion or admission of a Claim.
11. Please be sure to sign and date your Ballot. If you are signing a Ballot in your capacity
as a trustee, executor, administrator, guardian, attorney in fact, officer of a corporation, or
otherwise acting in a fiduciary or representative capacity, you must indicate such capacity
when signing and, if required or requested by the Claims and Noticing Agent, the
Debtors, or the Bankruptcy Court, must submit proper evidence to the requesting party to
so act on behalf of such Holder. In addition, please provide your name and mailing
address if it is different from that set forth on the attached mailing label or if no such
mailing label is attached to the ballot.
PLEASE SUBMIT YOUR BALLOT PROMPTLY
IF YOU HAVE ANY QUESTIONS REGARDING THIS BALLOT, THESE VOTING
INSTRUCTIONS, OR THE PROCEDURES FOR VOTING, PLEASE CALL THE
RESTRUCTURING HOTLINE AT:
U.S. TOLL FREE: (866) 956-2140 (US toll free)
INTERNATIONAL: +1 (818) 666-3635 (International)
OR BY EMAILING VYAIREINQUIRIES@OMNIAGNT.COM
IF THE CLAIMS AND NOTICING AGENT DOES NOT ACTUALLY RECEIVE THIS
BALLOT
ON OR BEFORE THE VOTING DEADLINE, WHICH IS
NOVEMBER 4, 2024, AT 4:00 P.M., PREVAILING EASTERN TIME, AND IF
THE VOTING DEADLINE IS NOT EXTENDED, YOUR VOTE TRANSMITTED
HEREBY MAY BE COUNTED ONLY IN THE DISCRETION OF THE DEBTORS.
14
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 41 of 130
[Different first page link-to-previous setting changed from off in original to on in modified.].
Exhibit 3B
Form of Ballot for Holders of Class 5 Second Lien Claims
[Different first page link-to-previous setting changed from off in original to on in modified.].
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 42 of 130
I.
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)
)
BALLOT FOR VOTING TO
ACCEPT OR REJECT THE JOINT CHAPTER 11 PLAN OF
VYAIRE MEDICAL, INC. AND ITS DEBTOR AFFILIATES
CLASS 5 BALLOT FOR HOLDERS OF CLASS 5 SECOND LIEN CLAIMS
PLEASE READ AND FOLLOW THE ENCLOSED INSTRUCTIONS FOR
COMPLETING BALLOTS CAREFULLY BEFORE COMPLETING THIS BALLOT.
IN ORDER FOR YOUR VOTE TO BE COUNTED, THIS BALLOT MUST BE
COMPLETED, EXECUTED, AND RETURNED SO AS TO BE ACTUALLY RECEIVED
BY THE CLAIMS AND NOTICING AGENT BY NOVEMBER 4, 2024, AT 4:00 P.M.,
PREVAILING EASTERN TIME (THE “VOTING DEADLINE”) IN ACCORDANCE
WITH THE FOLLOWING:
The above-captioned debtors and debtors in possession (collectively, the “Debtors”), are
soliciting votes with respect to the Joint Chapter 11 Plan of Vyaire Medical, Inc. and Its Debtor
Affiliates [Docket No.[●]] (as may be amended, supplemented, or otherwise modified from time
to time, the “Plan”) as set forth in the Disclosure Statement for the Joint Chapter 11 Plan of
Vyaire Medical, Inc. and Its Debtor Affiliates [Docket No. [●]] (as may be amended,
supplemented, or otherwise modified from time to time, the “Disclosure Statement”).
The Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”) has approved the
Disclosure Statement on an interim basis as containing adequate information pursuant to
section 1125 of title 11 of the United States Code
(the “Bankruptcy Code”), by entry of an order on [●], 2024 [Docket No. [●]] (the “Disclosure
Statement Order”). Bankruptcy Court approval of the Disclosure Statement does not indicate
approval of the Plan by the Bankruptcy Court. Capitalized terms used but not otherwise defined
herein shall have the meanings set forth in the Plan.
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.
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 43 of 130
I.
You are receiving this ballot (this “Ballot”) because you are a Holder of a Class 5 Second Lien
Claim (a “Voting Class”) as of October 2, 2024 (the “Voting Record Date”). Accordingly, you
have a right to vote to accept or reject the Plan.
YOUR VOTE ON THIS BALLOT WILL BE APPLIED TO EACH DEBTOR AGAINST
WHICH YOU HAVE A CLAIM.
Your rights are described in the Disclosure Statement, which was included in the package
(the “Solicitation Package”) you are receiving with this Ballot (as well as the Plan, Disclosure
Statement Order, and certain other materials). If you received Solicitation Package materials in
electronic format and desire paper copies, or if you need to obtain additional Solicitation
Packages, you may obtain them by (a) writing via first class mail, to Vyaire Medical, Inc. et al.,
c/o Omni Agent Solutions, Inc., 5955 De Soto Avenue, Suite 100, Woodland Hills, CA 91367;
(b) writing via electronic mail to Vyaireinquiries@omniagnt.com; or (c) calling the Debtors’
restructuring hotline at (866) 956-2140 (U.S. Toll-Free/Domestic) or +1 (818) 666-3635
(International). You may also obtain copies of any pleadings filed in these chapter 11 cases
(a) for a fee via PACER at: http://www.deb.uscourts.gov; or (b) at no charge from Omni Agent
Solutions, Inc. by accessing the Debtors’ restructuring website at
https://omniagentsolutions.com/Vyaire.
U.S. Toll Free: (866) 956-2140
International: +1 (818) 666-3635
This Ballot may not be used for any purpose other than for casting votes to accept or reject
the Plan and making certain certifications with respect to the Plan. If you believe you have
received this Ballot in error, or if you believe you have received the wrong ballot, please contact
the Claims and Noticing Agent immediately at the address, telephone number, or email address
set forth above.
You should review the Disclosure Statement, the Plan, and the instructions contained herein
before you vote. You may wish to seek legal advice concerning the Plan and the Plan’s
classification and treatment of your Claim. Your Claim has been placed in Class 5 under the
Plan.
PLEASE SUBMIT YOUR BALLOT BY ONE OF THE FOLLOWING TWO METHODS:
Electronically, Via Ballot Portal. Submit your Ballot via upload through the Claims and
Noticing Agent’s online portal, by visiting https://omniagentsolutions.com/Vyaire
(the “Ballot Portal”) and following the instructions to submit your Ballot.
Creditors who cast a Ballot using the Ballot Portal should NOT also submit a paper Ballot.
The Claims and Noticing Agent’s Ballot Portal is the sole manner in which Ballots will be
accepted via electronic or online transmission. Ballots submitted by facsimile, email, or
other means of electronic transmission will not be counted.
OR
2
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 44 of 130
I.
Via Paper Ballot (if applicable). Complete, sign, and date this Ballot and return it (with an
original signature) promptly via first-class mail (or in the enclosed reply envelope
provided), overnight courier, or hand delivery to:
By regular mail, overnight mail, or hand delivery at:
Vyaire Medical, Inc. Ballot Processing
c/o Omni Agent Solutions, Inc.
5955 De Soto Avenue, Suite 100
Woodland Hills, CA 91367
If you would like to coordinate hand delivery of your Ballot, please send an email to
https://omniagentsolutionsVyaireinquiries@omniagnt.com/Vyaire and provide the anticipated
date and time of your delivery.
Item 1. Amount of Claim.
The undersigned hereby certifies that as of the Voting Record Date, the undersigned was the
Holder of a Class 5 Second Lien Claim in the following aggregate unpaid amount:
$_______________
Item 2. Vote on Plan.
The Holder of the Class 5 Second Lien Claim against the Debtors, the aggregate amount of
which is set forth in Item 1, votes to (please check one):
ACCEPT (vote FOR) the Plan REJECT (vote AGAINST) the Plan
Your vote on the Plan will be applied to each applicable Debtor in the same manner and in
the same amount as indicated in Item 1 and Item 2 above.
2
Item 3. Important information regarding releases under the Plan.
Article VIII.B of the Plan provides for a release by the Debtors (the “Debtor Release”):
Except as otherwise specifically provided herein or the Confirmation Order,
pursuant to section 1123(b) of the Bankruptcy Code, for good and valuable consideration,
the adequacy of which is hereby confirmed, upon entry of the Confirmation Order, as of
the Effective Date, each Released Party is, and is deemed, hereby fully, conclusively,
absolutely, unconditionally, irrevocably, and forever released and discharged by each and
2 The Plan provisions referenced herein are for summary purposes only and do not include all provisions of the
Plan that may affect your rights. If there is any inconsistency between the provisions set forth herein and the
Plan, the Plan governs. Please read the Plan carefully before completing this Ballot.
3
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 45 of 130
I.
all of the Debtors, the Wind-Down Debtors, and their Estates, in each case on behalf of
themselves and their respective successors, assigns, and representatives from any and all
Claims, obligations, rights, suits, damages, and Causes of Action, remedies, and liabilities
whatsoever, whether known or unknown, including any derivative claims asserted or
assertable on behalf of any of the Debtors, the Wind-Down Debtors, and their Estates, that
the Debtors, the Wind-Down Debtors, or their Estates would have been legally entitled to
assert in their own right (whether individually or collectively), or on behalf of the Holder
of any Claim against, or Interest in, a Debtor or other Entity, or that any Holder of any
Claim against or Interest in a Debtor or other Entity could have asserted on behalf of the
Debtors based on or relating to, or in any manner arising from, in whole or in part, the
Debtors (including the capital structure, management, ownership, or operation thereof or
otherwise), the subject matter of, or the transactions or events giving rise to, any Claim or
Interest that is treated in the Plan, the business or contractual arrangements between any
Debtor or the Wind-Down Debtors and any Released Party, the Debtors’ in- or
out-of-court restructuring efforts, the purchase, sale, or rescission of any security of the
Debtors or the Wind-Down Debtors, intercompany transactions between or among the
Debtors or between the Debtors and their non-Debtor Affiliates, the First Lien Credit
Agreement, the Second Lien Credit Agreement, the Note Purchase Agreement, the DIP
Facility, the DIP Facility Documents, the Disclosure Statement Order, the Confirmation
Order, the Sale Order, the First Day Pleadings, the Chapter 11 Cases, the formulation,
preparation, dissemination, solicitation, negotiation, entry into, or filing of the
Restructuring Support Agreement, the Disclosure Statement, the Plan, the Plan
Supplement, the Prepetition Loan Documents, any other Definitive Document, or any
Restructuring Transaction, contract, instrument, release, or other agreement or document
created or entered into in connection with the Restructuring Support Agreement, the
Disclosure Statement, the DIP Facility, the Plan, the Plan Supplement, the Sale
Transactions, any other Definitive Document, any of the Restructuring Transactions, the
Chapter 11 Cases, the filing of the Chapter 11 Cases, the pursuit of Confirmation, the
pursuit of Consummation, the administration and implementation of the Plan, including
the issuance or distribution of securities pursuant to the Plan, or the distribution of
property under the Plan or any other related agreement, or upon any other act or
omission, transaction, agreement, event, or other occurrence taking place on or before the
Effective Date related or relating to any of the foregoing.
Notwithstanding anything to the contrary in the foregoing, the releases set forth
above do not release (i) any post-Effective Date obligations of any party or Entity under the
Plan, the Confirmation Order, any Restructuring Transaction, or any document,
instrument, or agreement (including those set forth in the Plan Supplement) executed to
implement the Plan or the Restructuring Transactions, (ii) any Causes of Action
specifically retained by the Debtors pursuant to the Schedule of Retained Causes of Action
to be attached as an exhibit to the Plan Supplement, or (iii) any Claims or Causes of Action
arising out of, or related to, any act or omission of a Released Party that is determined by a
Final Order of the Bankruptcy Court or any other court of competent jurisdiction to have
constituted actual fraud, gross negligence, or willful misconduct (it being agreed that any
Released Parties’ consideration, approval, or receipt of any distribution did not arise from
or relate to actual fraud, gross negligence, or willful misconduct).
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Entry of the Confirmation Order shall constitute the Bankruptcy Court’s approval,
pursuant to Bankruptcy Rule 9019, of the releases set forth in Article VIII.B of the Plan,
which includes by reference each of the related provisions and definitions contained in the
Plan, and further, shall constitute the Bankruptcy Court’s finding that such release is: (1)
in exchange for the good and valuable consideration provided by the Released Parties,
including, the Released Parties’ contribution to facilitating the Restructuring Transactions
and implementing the Plan; (2) a good faith settlement and compromise of the Claims
released by the Debtor Release; (3) in the best interests of the Debtors and all Holders of
Claims and Interests; (4) fair, equitable, and reasonable; (5) given and made after due
notice and opportunity for a hearing; and (6) a bar to any of the Debtors, the Wind-Down
Debtors, or the Debtors’ Estates asserting any Claim or Cause of Action released pursuant
to the Debtor Release.
Article VIII.C of the Plan provides for a third-party release by Holders of Claims and Interests
(the “Third-Party Release”):
Except as otherwise specifically provided in the Plan or the Confirmation Order,
pursuant to section 1123(b) of the Bankruptcy Code, for good and valuable consideration,
the adequacy of which is hereby confirmed, upon entry of the Confirmation Order, as of
the Effective Date, each Releasing Party is, and is deemed to have, hereby fully,
conclusively, absolutely, unconditionally, irrevocably and forever released and discharged
each Debtor, Wind-Down Debtor, and Released Party from any and all Claims,
obligations, rights, suits, damages, and Causes of Action, remedies, and liabilities
whatsoever, whether known or unknown, including any derivative claims asserted or
assertable on behalf of the Debtors, the Wind-Down Debtors, and their Estates (as
applicable) that such Entity would have been legally entitled to assert in their own right
(whether individually or collectively), based on or relating to, or in any manner arising
from, in whole or in part, the Debtors (including the capital structure, management,
ownership, or operation thereof or otherwise), the purchase, sale, or recission of any
security of the Debtors or the Wind-Down Debtors, the subject matter of, or the
transactions or events giving rise to, any Claim or Interest that is treated in the Plan, the
business or contractual arrangements between any Debtor or the Wind-Down Debtors and
any Released Party, the Debtors’ in- or out-of-court restructuring efforts, intercompany
transactions between or among the Debtors or between the Debtors and their non-Debtor
Affiliates, the First Lien Credit Agreement, the Second Lien Credit Agreement, the Note
Purchase Agreement, the DIP Facility, the DIP Facility Documents, the Disclosure
Statement Order, the Confirmation Order, the Sale Order, the First Day Pleadings, the
Chapter 11 Cases, the formulation, preparation, dissemination, solicitation, negotiation,
entry into, or filing of the Restructuring Support Agreement, the Disclosure Statement, the
Plan, the Plan Supplement, the Prepetition Loan Documents, any other Definitive
Document, or any Restructuring Transaction, contract, instrument, release, or other
agreement or document created or entered into in connection with the Restructuring
Support Agreement, the Disclosure Statement, the DIP Facility, the Plan, the Plan
Supplement, the Sale Transactions, any other Definitive Document, any of the
Restructuring Transactions, the Chapter 11 Cases, the filing of the Chapter 11 Cases, the
pursuit of Confirmation, the pursuit of Consummation, the administration and
implementation of the Plan, including the issuance or distribution of securities pursuant to
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the Plan, or the distribution of property under the Plan or any other related agreement, or
upon any other act or omission, transaction, agreement, event, or other occurrence taking
place on or before the Effective Date related or relating to any of the foregoing.
Notwithstanding anything to the contrary in the foregoing, the releases set forth
above do not release (i) any post-Effective Date obligations of any party or Entity under the
Plan, any Restructuring Transaction, or any document, instrument, or agreement
(including those set forth in the Plan Supplement) executed to implement the Plan, (ii) any
Causes of Action specifically retained by the Debtors pursuant to the Schedule of Retained
Causes of Action to be attached as an exhibit to the Plan Supplement, or (iii) any Claims or
Causes of Action arising out of, or related to, any act or omission of a Released Party that
is determined by a Final Order of the Bankruptcy Court or any other court of competent
jurisdiction to have constituted actual fraud, gross negligence, or willful misconduct (it
being agreed that any Released Parties’ consideration, approval, or receipt of any
distribution did not arise from or relate to actual fraud, gross negligence, or willful
misconduct).
Entry of the Confirmation Order shall constitute the Bankruptcy Court’s approval,
pursuant to Bankruptcy Rule 9019, of the releases set forth in Article VIII.C of the Plan,
which includes by reference each of the related provisions and definitions contained in the
Plan, and further, shall constitute the Bankruptcy Court’s finding that such releases are:
(1) consensual; (2) essential to the Confirmation of the Plan; (3) given in exchange for the
good and valuable consideration provided by the Released Parties; (4) a good faith
settlement and compromise of the Claims released by the releases provided in Article
VIII.C of the Plan; (5) in the best interests of the Debtors and their Estates; (6) fair,
equitable, and reasonable; (7) given and made after due notice and opportunity for a
hearing; and (8) a bar to any of the Releasing Parties asserting any Claim or Cause of
Action released pursuant to the releases provided in Article VIII.C of the Plan.
Definitions Related to the Debtor Release and the Third-Party Release:
UNDER THE PLAN, “AVOIDANCE ACTIONS” MEANS ANY AND ALL AVOIDANCE,
RECOVERY, OR SUBORDINATION ACTIONS OR REMEDIES THAT MAY BE
BROUGHT BY OR ON BEHALF OF THE DEBTORS OR THEIR ESTATES UNDER THE
BANKRUPTCY CODE OR APPLICABLE NON-BANKRUPTCY LAW, INCLUDING
ACTIONS OR REMEDIES UNDER SECTIONS 544, 547, 548, 549, 550, 551, 552, OR 553 OF
THE BANKRUPTCY CODE.
UNDER THE PLAN, “DEBTOR RELEASE” MEANS THE RELEASES GIVEN ON BEHALF
OF THE DEBTORS AND THEIR ESTATES AS SET FORTH IN ARTICLE VIII.B OF THE
PLAN.
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UNDER THE PLAN, “RELEASED PARTIES” MEANS, EACH OF, AND IN EACH CASE,
IN THEIR RESPECTIVE CAPACITIES AS SUCH: (A) THE DEBTORS AND THE
WIND-DOWN DEBTORS, AS APPLICABLE; (B) THE PLAN ADMINISTRATOR; (C)
EACH CONSENTING STAKEHOLDER; (D) THE COMMITTEE AND ITS MEMBERS; (E)
THE PURCHASERS; (F) THE DIP LENDERS; (G) THE AGENTS; (H) ALL HOLDERS OF
CLAIMS WHO OPT IN TO GRANTING THESE RELEASES SET FORTH IN THE PLAN; (I)
ALL HOLDERS OF INTERESTS WHO OPT IN TO GRANTING THESE RELEASES SET
FORTH IN THE PLAN; (J) EACH CURRENT AND FORMER AFFILIATE OF EACH
ENTITY IN CLAUSE (A) THROUGH THE FOLLOWING CLAUSE (K); AND (K) EACH
RELATED PARTY OF EACH ENTITY IN CLAUSE (A) THROUGH THIS CLAUSE (K),
EACH IN THEIR CAPACITY AS SUCH (UNLESS ANY SUCH ENTITY OR RELATED PARTY HAS
OPTED OUT OF THE RELEASES CONTAINED IN ARTICLE VIII OF THE PLAN, IN WHICH CASE SUCH
ENTITY OR RELATED PARTY, AS APPLICABLE, SHALL NOT BE A RELEASED PARTY); PROVIDED
THAT, IN EACH CASE, AN ENTITY SHALL NOT BE A RELEASED PARTY IF IT: (X)
ELECTS TO OPT OUT OF THE RELEASES SET FORTH IN ARTICLE VIII.C OF THE PLAN; OR (Y)
TIMELY OBJECTS TO THE RELEASES SET FORTH IN ARTICLE VIII.C OF THE PLAN
AND SUCH OBJECTION IS NOT WITHDRAWN OR OTHERWISE RESOLVED BEFORE
THE CONFIRMATION ORDER IS ENTERED.
UNDER THE PLAN, “RELEASING PARTIES” MEANS, EACH OF, AND IN EACH CASE,
IN THEIR RESPECTIVE CAPACITIES AS SUCH: (A) THE DEBTORS AND THE
WIND-DOWN DEBTORS, AS APPLICABLE; (B) THE PLAN ADMINISTRATOR; (C)
EACH CONSENTING STAKEHOLDER; (D) THE COMMITTEE AND ITS MEMBERS; (E)
THE PURCHASERS; (F) THE DIP LENDERS; (G) THE AGENTS; (H) ALL HOLDERS OF
CLAIMS WHO OPT IN TO GRANTING THESE RELEASES SET FORTH IN THE PLAN; (I)
ALL HOLDERS OF INTERESTS WHO OPT IN TO GRANTING THESE RELEASES SET
FORTH IN THE PLAN; (J) EACH CURRENT AND FORMER AFFILIATE OF EACH
ENTITY IN CLAUSE (A) THROUGH THE FOLLOWING CLAUSE (K); AND (K) EACH
RELATED PARTY OF EACH ENTITY IN CLAUSE (A) THROUGH THIS CLAUSE (K),
FOR WHICH SUCH ENTITY IS LEGALLY ENTITLED TO BIND SUCH RELATED PARTY
TO THE RELEASES CONTAINED IN THE PLAN UNDER APPLICABLE LAW;
PROVIDED, HOWEVER, THAT IN EACH CASE, AN ENTITY SHALL NOT BE
RELEASING PARTY IF IT: (X) ELECTS TO OPT OUT OF THE RELEASE CONTAINED IN THE
PLAN; OR (Y) TIMELY OBJECTS TO THE RELEASES SET FORTH IN ARTICLE VIII.C OF
THE PLAN AND SUCH OBJECTION IS NOT WITHDRAWN OR OTHERWISE RESOLVED
BEFORE THE CONFIRMATION ORDER IS ENTERED.
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IMPORTANT INFORMATION REGARDING THE RELEASES:
AS A HOLDER OF THE CLAIMS AGAINST OR INTERESTS IN THE VOTING
CLASSES IDENTIFIED IN ITEM 1DEBTORS, YOU AREMAY BE A “RELEASING PARTY”
UNDER THE PLAN AND ARE DEEMED TO PROVIDE THE THIRD-PARTY RELEASE
CONTAINED IN ARTICLE VIII.C OF THE PLAN, AS SET FORTH ABOVE. IF YOU MAY
CHECK THE BOX BELOW TO ELECT NOT TO GRANT THE RELEASE CONTAINED IN
ARTICLE VIII.C OF THE PLAN. , YOU WILL NOT BE CONSIDERED A “RELEASING
PARTY” UNDER THE PLAN IF YOU CHECK THE BOX BELOW AND SUBMIT THE OPT OUT BY
THE VOTING DEADLINE. YOU MAY ALSO VALIDLY OPT OUT OF THE RELEASES BY FILING. AN
ENTITY SHALL NOT BE A “RELEASING PARTY” UNDER THE PLAN IF IT FILES AN
OBJECTION TO THE RELEASES CONTAINED IN THE PLAN WITH THE BANKRUPTCY
COURT PRIOR TO THE PLAN OBJECTION DEADLINE THAT IS NOT WITHDRAWN OR
OTHERWISE RESOLVED BEFORE THE CONFIRMATION ORDER IS ENTERED. THE
ELECTION TO WITHHOLD CONSENT TO GRANT THE THIRD-PARTY RELEASE IS AT
YOUR OPTION, SUBJECT TO ANY OBLIGATION YOU MAY HAVE UNDER THE
RESTRUCTURING SUPPORT AGREEMENT. BY OPTING IN TO THE RELEASES SET
FORTH IN ARTICLE VIII.C OF THE PLAN, YOU WILL RECEIVE THE BENEFIT OF
OBTAINING THE RELEASES SET FORTH IN ARTICLE VIII.C OF THE PLAN IF YOU
ARE A “RELEASED PARTY” IN CONNECTION THEREWITH.
YOU WILL RECEIVE THE SAME TREATMENT ON ACCOUNT OF YOUR
CLAIM(S) UNDER THE PLAN REGARDLESS OF WHETHER YOU ELECT TO NOT
GRANT THE RELEASE CONTAINED IN ARTICLE VIII.C OF THE PLAN.
PLEASE TAKE NOTICE THAT IF YOU VOTE IN FAVOR OF THE PLAN, YOU WILL BE
CONSIDERED A “RELEASING PARTY” UNDER THE PLAN AND CANNOT OPT OUT OF THE
RELEASES CONTAINED THEREIN. ANY OPT OUT OF THE RELEASES CONTAINED IN THE PLAN
SUBMITTED ON YOUR BEHALF WILL NOT BE COUNTED.
The Holder of the Claim identified in Item 1 elects to:
☐ OPT OUTIN of the Third Party Release
Article VIII.D of the Plan provides for an exculpation of certain parties (the “Exculpation”):
Except as otherwise expressly provided in the Plan or the Confirmation Order, to
the fullest extent permitted by applicable law and solely to the extent such acts or omissions
occurred between the Petition Date and the Effective Date, no Exculpated Party shall have
or incur any liability for, and each Exculpated Party is released and exculpated from any
Cause of Action for any claim related to any act or omission in connection with, relating to,
or arising out of, the Chapter 11 Cases, the formulation, preparation, dissemination,
negotiation, or filing of the Disclosure Statement, the Sale Transactions, the Plan, the Plan
Supplement, any other Definitive Document, or any Restructuring Transaction, or any
contract, instrument, release or other agreement or document created or entered into in
connection with the Disclosure Statement, the Plan, the Plan Supplement, the Sale
Transactions, any other Definitive Document, any of the Restructuring Transactions, the
8
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I.
filing of the Chapter 11 Cases, the participation in the DIP Facility, the pursuit of the Sale
Transactions, the pursuit of Confirmation, the pursuit of Consummation, the
administration and implementation of the Plan, including the issuance of securities
pursuant to the Plan, or the distribution of property under the Plan or any other related
agreement, except for claims related to any act or omission that is determined in a Final
Order to have constituted actual fraud, willful misconduct, or gross negligence, but in all
respects such Entities shall be entitled to reasonably rely upon the advice of counsel with
respect to their duties and responsibilities pursuant to the Plan. The Exculpated Parties
have, and upon Consummation shall be deemed to have, participated in good faith and in
compliance with the applicable laws with regard to the solicitation of votes and distribution
of consideration pursuant to the Plan and, therefore, are not, and on account of such
distributions shall not be, liable at any time for the violation of any applicable law, rule, or
regulation governing the solicitation of acceptances or rejections of the Plan or such
distributions made pursuant to the Plan.
Article VIII.E of the Plan establishes an injunction (the “Injunction”):
In accordance with Bankruptcy Code section 1141(d)(3), the Plan does not
discharge the Debtors. Bankruptcy Code section 1141(c) nevertheless provides, among
other things, that the property dealt with by the Plan is free and clear of all Claims and
Interests against the Debtors. Except as otherwise specifically provided in the Plan or for
obligations issued or required to be paid pursuant to the Plan or the Confirmation Order,
all Entities who have held, hold, or may hold Claims or Interests that have been released or
are subject to exculpation pursuant to the Plan are permanently enjoined, from and after
the Effective Date, from taking any of the following actions against, as applicable, the
Debtors, the Wind-Down Debtors, the Exculpated Parties, or the Released Parties, and any
successors, assigns or representatives of such Persons or Entities: (a) commencing or
continuing in any manner any action or other proceeding of any kind on account of or in
connection with or with respect to any such Claims or Interests; (b) enforcing, attaching,
collecting, or recovering by any manner or means any judgment, award, decree, or order
against such Entities on account of or in connection with or with respect to any such
Claims or Interests; (c) creating, perfecting, or enforcing any encumbrance of any kind
against such Entities or the property or the estates of such Entities on account of or in
connection with or with respect to any such Claims or Interests; (d) asserting any right of
setoff, subrogation, or recoupment of any kind against any obligation due from such
Entities or against the property of such Entities on account of or in connection with or with
respect to any such Claims or Interests unless such Holder has Filed a motion requesting
the right to perform such setoff on or before the Effective Date; and (e) commencing or
continuing in any manner any action or other proceeding of any kind on account of or in
connection with or with respect to any such Claims or Interests released or settled
pursuant to the Plan. Notwithstanding anything to the contrary in the foregoing, the
injunction set forth above does not enjoin the enforcement of any obligations arising on or
after the Effective Date of any Person or Entity under the Plan, any post-Effective Date
transaction contemplated by the Restructuring Transactions, or any document,
instrument, or agreement (including those set forth in the Plan Supplement) executed to
implement the Plan.
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Upon entry of the Confirmation Order, all Holders of Claims and Interests and
their respective current and former employees, agents, officers, directors, managers,
principals, and direct and indirect Affiliates, in their capacities as such, shall be enjoined
from taking any actions to interfere with the implementation or Consummation of the
Plan. Each Holder of an Allowed Claim or Allowed Interest, as applicable, by accepting,
or being eligible to accept, distributions under or Reinstatement of such Claim or Interest,
as applicable, pursuant to the Plan, shall be deemed to have consented to the injunction
provisions set forth in Article VIII.E of the Plan.
No Person or Entity may commence or pursue a Claim or Cause of Action of any kind against the
Debtors, the Wind-Down Debtors, the Exculpated Parties, or the Released Parties that relates to or is
reasonably likely to relate to any act or omission in connection with, relating to, or arising out of a Claim or
Cause of Action subject to Article VIII.E of the Plan, without the Bankruptcy Court (i) first determining,
after notice and a hearing, that such Claim or Cause of Action represents a colorable Claim of any kind, and
(ii) specifically authorizing such Person or Entity to bring such Claim or Cause of Action against any such
Debtor, Wind-Down Debtor, Exculpated Party, or Released Party.
Item 4. Certifications.
By signing this Ballot, the undersigned certifies to the Bankruptcy Court and the Debtors that:
(a) as of the Voting Record Date, either: (i) the Entity is the Holder (or authorized
signatory for a Holder) of the Claims in the Voting Class(es) as set forth in
Item 1;
(b) the Entity (or in the case of an authorized signatory, the Holder) has reviewed a
copy of the Disclosure Statement, the Plan, and the remainder of the Solicitation
Package and acknowledges that the solicitation is being made pursuant to the
terms and conditions set forth therein;
(c) the Entity has not relied on any statement made or other information received
from any person with respect to the Plan other than the information contained in
the Solicitation Package or other publicly available materials;
(e) no other Ballots with respect to the amount of the Claim identified in Item 1 has
been cast or, if any other Ballots have been cast with respect to such Claim, then
any such earlier Ballots are hereby revoked;
(f) the Entity understands and acknowledges that if multiple Ballots are submitted
voting the Claim set forth in Item 1, only the last properly completed Ballot
voting the Claim and received by the Claims and Noticing Agent before the
Voting Deadline shall be deemed to reflect the voter’s intent and thus to
supersede and revoke any prior Ballots received by the Claims and Noticing
Agent; and
(g) the Entity understands and acknowledges that all authority conferred or agreed to
be conferred pursuant to this Ballot, and every obligation of the Holder hereunder,
shall be binding upon the transferees, successors, assigns, heirs, executors,
administrators, and legal representatives of the Holder and shall not be affected
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by, and shall survive, the death or incapacity of the Holder.
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Name of Holder:
(Print or Type)
Signature:
Name of Signatory:
(If other than the Holder)
Title:
Address:
Telephone
Number:
Email:
Date Completed:
IF THE CLAIMS AND NOTICING AGENT DOES NOT ACTUALLY RECEIVE THIS
BALLOT ON OR BEFORE NOVEMBER 4, 2024, AT 4:00 P.M., PREVAILING
EASTERN TIME, AND IF THE VOTING DEADLINE IS NOT EXTENDED, YOUR
VOTE TRANSMITTED BY THIS BALLOT MAY BE COUNTED TOWARD
CONFIRMATION OF THE PLAN ONLY IN THE DISCRETION OF THE DEBTORS.
INSTRUCTIONS FOR COMPLETING THIS BALLOT
1. The Debtors are soliciting the votes of Holders of Class 4 and 5 Claims with respect to
the Plan referred to in the Disclosure Statement. PLEASE READ THE PLAN AND
DISCLOSURE STATEMENT CAREFULLY BEFORE COMPLETING THIS
BALLOT.
2. The Plan can be confirmed by the Bankruptcy Court and thereby made binding upon you
if it is accepted by the Holders of at least two-thirds in amount and more than one-half in
number of Claims or at least two-thirds in amount of Interests in at least one class that
votes on the Plan and if the Plan otherwise satisfies the requirements for confirmation
provided by section 1129(a) of the Bankruptcy Code. Please review the Disclosure
Statement for more information.
3. To ensure that your Ballot is counted, you must complete and submit this Ballot as
instructed herein. Ballots will not be accepted by electronic mail or facsimile.
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I.
4. Use of Ballot. To ensure that your Ballot is counted, you must: (a) complete your Ballot
in accordance with these instructions; (b) clearly indicate your decision either to accept or
reject the Plan in the boxes provided in Item 2 of the Ballot; and (c) clearly sign and
submit your Ballot as instructed herein.
5. Your Ballot must be returned to the Claims and Noticing Agent so as to be actually
received by the Claims and Noticing Agent on or before the Voting Deadline. The
Voting Deadline is November 4, 2024, at 4:00 p.m., prevailing Eastern Time.
6. If a Ballot is received after the Voting Deadline and if the Voting Deadline is not
extended, it may be counted only in the sole and absolute discretion of the Debtors.
Additionally, the following Ballots will not be counted:
(a) any Ballot that partially rejects and partially accepts the Plan;
(b) Ballots sent to the Debtors, the Debtors’ agents (other than Claims and Noticing
Agent), the Debtors’ financial or legal advisors or any other person (other than the
Claims and Noticing Agent);
(c) Ballots sent by electronic mail or facsimile;
(d) any Ballot that is illegible or contains insufficient information to permit the
identification of the Holder of thIlaim;
(e) any Ballot cast by an Entity that does not hold a claim in Classes 4 and 5;
(f) any Ballot submitted by a Holder not entitled to vote pursuant to the Plan;
(g) any unsigned Ballot (for the avoidance of doubt, Ballots validly submitted
through the Ballot Portal will be deemed signed);
(h) any non-original Ballot (for the avoidance of doubt, Ballots validly submitted
through the Ballot Portal will be deemed original); and/or
(i) any Ballot not marked to accept or reject the Plan or any Ballot marked both to
accept and reject the Plan.
7. The method of delivery of Ballots to the Claims and Noticing Agent is at the election and
risk of each Holder of Claim. Except as otherwise provided herein, such delivery will be
deemed made only when the Claims and Noticing Agent actually receives the originally
executed Ballot. In all cases, Holders should allow sufficient time to assure timely
delivery.
8. If multiple Ballots are received from the same Holder Claim with respect to the same
Class prior to the Voting Deadline, the latest, timely received, and properly completed
Ballot will supersede and revoke any earlier received Ballots.
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9. You must vote all of your Claims within your respective class either to accept or reject
the Plan and may not split your vote.
10. This Ballot does not constitute, and shall not be deemed to be, (a) a Proof of Claim or
(b) an assertion or admission of a Claim.
11. Please be sure to sign and date your Ballot. If you are signing a Ballot in your capacity
as a trustee, executor, administrator, guardian, attorney in fact, officer of a corporation, or
otherwise acting in a fiduciary or representative capacity, you must indicate such capacity
when signing and, if required or requested by the Claims and Noticing Agent, the
Debtors, or the Bankruptcy Court, must submit proper evidence to the requesting party to
so act on behalf of such Holder. In addition, please provide your name and mailing
address if it is different from that set forth on the attached mailing label or if no such
mailing label is attached to the ballot.
PLEASE SUBMIT YOUR BALLOT PROMPTLY
IF YOU HAVE ANY QUESTIONS REGARDING THIS BALLOT, THESE VOTING
INSTRUCTIONS, OR THE PROCEDURES FOR VOTING, PLEASE CALL THE
RESTRUCTURING HOTLINE AT:
U.S. TOLL FREE: (866) 956-2140 (US toll free)
INTERNATIONAL: +1 (818) 666-3635 (International)
OR BY EMAILING VYAIREINQUIRIES@OMNIAGNT.COM
IF THE CLAIMS AND NOTICING AGENT DOES NOT ACTUALLY RECEIVE THIS
BALLOT
ON OR BEFORE THE VOTING DEADLINE, WHICH IS
NOVEMBER 4, 2024, AT 4:00 P.M., PREVAILING EASTERN TIME, AND IF
THE VOTING DEADLINE IS NOT EXTENDED, YOUR VOTE TRANSMITTED
HEREBY MAY BE COUNTED ONLY IN THE DISCRETION OF THE DEBTORS.
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I.
Exhibit 4
Form of Unimpaired Non-Voting Status Notice
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 57 of 130
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 NON-VOTING STATUS AND
OPT OUT OFIN TO RELEASES TOFOR HOLDERS OF UNIMPAIRED
CLAIMS OR INTERESTS CONCLUSIVELY PRESUMED TO ACCEPT THE PLAN
PLEASE TAKE NOTICE THAT on [●], 2024, the United States Bankruptcy Court for
the District of Delaware (the “Court”) entered an order [Docket No. [●]]
(the “Disclosure Statement Order”): (a) authorizing the above-captioned debtors and debtors in
possession (collectively, the “Debtors”) to solicit votes on the Joint Chapter 11 Plan of Vyaire
Medical, Inc. and Its Debtor Affiliates [Docket No. [●]] (as modified, amended, or supplemented
from time to time, the “Plan”);2 (b) approving on an interim basis the Disclosure Statement for
the Joint Chapter 11 Plan of Vyaire Medical, Inc. and Its Debtor Affiliates [Docket No. [●]]
(the “Disclosure Statement”) as containing “adequate information” pursuant to section 1125 of
the Bankruptcy Code; (c) approving the solicitation materials and documents to be included in
the solicitation packages; (d) approving procedures for soliciting, receiving, and tabulating votes
on the Plan and for filing objections to the Plan; and (e) granting related relief.
PLEASE TAKE FURTHER NOTICE THAT because of the nature and treatment of
your Claim under the Plan, you are not entitled to vote on the Plan. Specifically, under the
terms of the Plan, as a Holder of a Claim (as currently asserted against the Debtors) that is not
Impaired and conclusively presumed to have accepted the Plan pursuant to section 1126(f) of the
Bankruptcy Code, you are not entitled to vote on the Plan.
PLEASE TAKE FURTHER NOTICE THAT the hearing at which the Court will
consider Confirmation of the Plan (the “Confirmation Hearing”) will commence on
November 14, 2024, at 1:30 p.m., prevailing Eastern Time, before The Honorable Brendan L.
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 not otherwise defined herein have the same meaning as set forth in the Plan.
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 58 of 130
Shannon, in the United States Bankruptcy Court for the District of Delaware, located at 824
North Market St., 6th Floor, Courtroom No. 1, Wilmington, DE 19801.
PLEASE TAKE FURTHER NOTICE THAT the deadline for filing objections to the
Plan is November 4, 2024, at 4:00 p.m., prevailing Eastern Time (the “Plan Objection
Deadline”). All objections to the relief sought at the Confirmation Hearing must: (a) be in
writing; (b) conform to the Bankruptcy Code, Bankruptcy Rules, the Local Rules, and any orders
of the Court; (c) state, with particularity, the basis and nature of any objection to the Plan or
Disclosure Statement and, if practicable, a proposed modification to the Plan that would resolve
such objection; and (d) be filed with the Court on or before the Plan Objection Deadline.
PLEASE TAKE FURTHER NOTICE THAT if you would like to obtain a copy of the
Disclosure Statement, the Plan, the Plan Supplement, or related documents, you should contact
Omni Agent Solutions, Inc., the claims and noticing agent retained by the Debtors in these
chapter 11 cases (the “Claims and Noticing Agent”), by: (a) writing via first class mail, to
Vyaire Medical, Inc. et al., c/o Omni Agent Solutions, Inc., 5955 De Soto Avenue, Suite 100,
Woodland Hills, CA 91367; (b) writing via electronic mail to Vyaireinquiries@omniagnt.com;
or (c) calling the Debtors’ restructuring hotline at (866) 956-2140 (U.S. Toll-Free/Domestic) or
+1 (818) 666-3635 (International). You may also obtain copies of any pleadings filed in these
chapter 11 cases (a) for a fee via PACER at: http://www.deb.uscourts.gov; or (b) at no charge
from Omni Agent Solutions, Inc. by accessing the Debtors’ restructuring website at
https://omniagentsolutions.com/Vyaire.
ARTICLE VIII OF THE PLAN CONTAINS RELEASE, EXCULPATION, AND INJUNCTION
PROVISIONS, AND ARTICLE VIII.C OF THE PLAN CONTAINS A THIRD-PARTY
RELEASE. THUS, YOU ARE ADVISED TO REVIEW AND CONSIDER THE PLAN
CAREFULLY BECAUSE YOUR RIGHTS MIGHT BE AFFECTED THEREUNDER.
DIRECTIONS REGARDING THE RELEASE OPT-OUTOPT-IN FORM ARE INCLUDED IN
THIS NOTICE.
AS SET FORTH IN THE PLAN, ALL HOLDERS OF CLAIMS OR INTERESTS THAT DO
NOT ELECT TO OPT OUT OFIN TO THE PROVISIONS CONTAINED IN ARTICLE VIII
OF THE PLAN USING THE ENCLOSED OPT OUTIN FORM OR BY FILING AN
OBJECTION TO THE RELEASES CONTAINED IN THE PLAN WILL BE DEEMED TO
HAVE EXPRESSLY, UNCONDITIONALLY, GENERALLY, INDIVIDUALLY, AND
COLLECTIVELY CONSENTED TO THE RELEASE AND DISCHARGE OF ALL CLAIMS
AND CAUSES OF ACTION AGAINST THE DEBTORS AND THE RELEASED PARTIES.
BY ELECTING TO OPT OUT OFIN TO THE RELEASES SET FORTH IN ARTICLE VIII.C
OF THE PLAN, YOU WILL FOREGORECEIVE THE BENEFIT OF OBTAINING THE
RELEASES SET FORTH IN ARTICLE VIII OF THE PLAN IF YOU ARE A RELEASED
PARTY IN CONNECTION THEREWITH.
2
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 59 of 130
I.
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
Co-Counsel to the Debtors Co-Counsel to the Debtors
and Debtors in Possession and Debtors in Possession
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 60 of 130
OPTIONAL: RELEASE OPT OUTIN FORM
You are receiving this optional opt outin form (the “Opt OutIn Form”) because you are or may be
a Holder of a Claim or Interest that is not entitled to vote on the Joint Chapter 11 Plan of Vyaire
Medical, Inc, and Its Debtor Affiliates [Docket No. [●]] (as modified, amended, or supplemented
from time to time, the “Plan”). Holders of Claims or Interests are deemed to grant the
Third-Party Release set forth in the Plan unless a Holder affirmatively opts outin by November 4,
2024, at 4:00 p.m., prevailing Eastern Time (the “Opt OutIn Deadline”). Holders of Claims or
Interests may affirmatively opt outin by, no later than the Voting Deadline, (i) submitting this
form in accordance with the directions herein or (ii) filing an objection to the Third-Party
Release with the Bankruptcy Court.
If you believe you are a Holder of a Claim or Interest with respect to the Debtors and
choose to opt out ofin to the Third-Party Release set forth in Article VIII.C of the Plan,
please either (i) promptly complete, sign, and date this Opt OutIn Form and return it via first
class mail, overnight courier, or hand delivery to Omni Agent Solutions, Inc. (the “Claims and
Noticing Agent”) at the address set forth below or (ii) submit your Opt OutIn Form through the
Claims and Noticing Agent’s online Opt OutIn Portal in accordance with the directions provided
below. Parties that submit their Opt OutIn Form using the Opt OutIn Portal should NOT also
submit a paper Opt OutIn Form.
THIS OPT OUTIN FORM MUST BE ACTUALLY RECEIVED (WHETHER A
PHYSICAL COPY IS RETURNED OR THE OPT OUTIN FORM IS COMPLETED
ONLINE) BY THE CLAIMS AND NOTICING AGENT BY THE OPT OUTIN
DEADLINE. IF THE OPT OUTIN FORM IS RECEIVED AFTER THE OPT OUTIN
DEADLINE, IT WILL NOT BE COUNTED.
1
Item 1. Important information regarding releases under the Plan.
Article VIII.B of the Plan provides for a release by the Debtors (the “Debtor Release”):
Except as otherwise specifically provided herein or the Confirmation Order,
pursuant to section 1123(b) of the Bankruptcy Code, for good and valuable consideration,
the adequacy of which is hereby confirmed, upon entry of the Confirmation Order, as of
the Effective Date, each Released Party is, and is deemed, hereby fully, conclusively,
absolutely, unconditionally, irrevocably, and forever released and discharged by each and
all of the Debtors, the Wind-Down Debtors, and their Estates, in each case on behalf of
themselves and their respective successors, assigns, and representatives from any and all
Claims, obligations, rights, suits, damages, and Causes of Action, remedies, and liabilities
whatsoever, whether known or unknown, including any derivative claims asserted or
assertable on behalf of any of the Debtors, the Wind-Down Debtors, and their Estates, that
1 The Plan provisions referenced herein are for summary purposes only and do not include all provisions of the
Plan that may affect your rights. If there is any inconsistency between the provisions set forth herein and the
Plan, the Plan governs. Please read the Plan carefully before completing this Opt OutIn Form. Defined terms
used bot not defined herein shall have the meaning ascribed to such term as in the Plan.
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 61 of 130
the Debtors, the Wind-Down Debtors, or their Estates would have been legally entitled to
assert in their own right (whether individually or collectively), or on behalf of the Holder
of any Claim against, or Interest in, a Debtor or other Entity, or that any Holder of any
Claim against or Interest in a Debtor or other Entity could have asserted on behalf of the
Debtors based on or relating to, or in any manner arising from, in whole or in part, the
Debtors (including the capital structure, management, ownership, or operation thereof or
otherwise), the subject matter of, or the transactions or events giving rise to, any Claim or
Interest that is treated in the Plan, the business or contractual arrangements between any
Debtor or the Wind-Down Debtors and any Released Party, the Debtors’ in- or
out-of-court restructuring efforts, the purchase, sale, or rescission of any security of the
Debtors or the Wind-Down Debtors, intercompany transactions between or among the
Debtors or between the Debtors and their non-Debtor Affiliates, the First Lien Credit
Agreement, the Second Lien Credit Agreement, the Note Purchase Agreement, the DIP
Facility, the DIP Facility Documents, the Disclosure Statement Order, the Confirmation
Order, the Sale Order, the First Day Pleadings, the Chapter 11 Cases, the formulation,
preparation, dissemination, solicitation, negotiation, entry into, or filing of the
Restructuring Support Agreement, the Disclosure Statement, the Plan, the Plan
Supplement, the Prepetition Loan Documents, any other Definitive Document, or any
Restructuring Transaction, contract, instrument, release, or other agreement or document
created or entered into in connection with the Restructuring Support Agreement, the
Disclosure Statement, the DIP Facility, the Plan, the Plan Supplement, the Sale
Transactions, any other Definitive Document, any of the Restructuring Transactions, the
Chapter 11 Cases, the filing of the Chapter 11 Cases, the pursuit of Confirmation, the
pursuit of Consummation, the administration and implementation of the Plan, including
the issuance or distribution of securities pursuant to the Plan, or the distribution of
property under the Plan or any other related agreement, or upon any other act or
omission, transaction, agreement, event, or other occurrence taking place on or before the
Effective Date related or relating to any of the foregoing.
Notwithstanding anything to the contrary in the foregoing, the releases set forth
above do not release (i) any post-Effective Date obligations of any party or Entity under the
Plan, the Confirmation Order, any Restructuring Transaction, or any document,
instrument, or agreement (including those set forth in the Plan Supplement) executed to
implement the Plan or the Restructuring Transactions, (ii) any Causes of Action
specifically retained by the Debtors pursuant to the Schedule of Retained Causes of Action
to be attached as an exhibit to the Plan Supplement, or (iii) any Claims or Causes of Action
arising out of, or related to, any act or omission of a Released Party that is determined by a
Final Order of the Bankruptcy Court or any other court of competent jurisdiction to have
constituted actual fraud, gross negligence, or willful misconduct (it being agreed that any
Released Parties’ consideration, approval, or receipt of any distribution did not arise from
or relate to actual fraud, gross negligence, or willful misconduct).
Entry of the Confirmation Order shall constitute the Bankruptcy Court’s approval,
pursuant to Bankruptcy Rule 9019, of the releases set forth in Article VIII.B of the Plan,
which includes by reference each of the related provisions and definitions contained in the
Plan, and further, shall constitute the Bankruptcy Court’s finding that such release is: (1)
in exchange for the good and valuable consideration provided by the Released Parties,
2
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 62 of 130
including, the Released Parties’ contribution to facilitating the Restructuring Transactions
and implementing the Plan; (2) a good faith settlement and compromise of the Claims
released by the Debtor Release; (3) in the best interests of the Debtors and all Holders of
Claims and Interests; (4) fair, equitable, and reasonable; (5) given and made after due
notice and opportunity for a hearing; and (6) a bar to any of the Debtors, the Wind-Down
Debtors, or the Debtors’ Estates asserting any Claim or Cause of Action released pursuant
to the Debtor Release.
Article VIII.C of the Plan provides for a third-party release by Holders of Claims and Interests
(the “Third-Party Release”):
Except as otherwise specifically provided in the Plan or the Confirmation Order,
pursuant to section 1123(b) of the Bankruptcy Code, for good and valuable consideration,
the adequacy of which is hereby confirmed, upon entry of the Confirmation Order, as of
the Effective Date, each Releasing Party is, and is deemed to have, hereby fully,
conclusively, absolutely, unconditionally, irrevocably and forever released and discharged
each Debtor, Wind-Down Debtor, and Released Party from any and all Claims,
obligations, rights, suits, damages, and Causes of Action, remedies, and liabilities
whatsoever, whether known or unknown, including any derivative claims asserted or
assertable on behalf of the Debtors, the Wind-Down Debtors, and their Estates (as
applicable) that such Entity would have been legally entitled to assert in their own right
(whether individually or collectively), based on or relating to, or in any manner arising
from, in whole or in part, the Debtors (including the capital structure, management,
ownership, or operation thereof or otherwise), the purchase, sale, or recission of any
security of the Debtors or the Wind-Down Debtors, the subject matter of, or the
transactions or events giving rise to, any Claim or Interest that is treated in the Plan, the
business or contractual arrangements between any Debtor or the Wind-Down Debtors and
any Released Party, the Debtors’ in- or out-of-court restructuring efforts, intercompany
transactions between or among the Debtors or between the Debtors and their non-Debtor
Affiliates, the First Lien Credit Agreement, the Second Lien Credit Agreement, the Note
Purchase Agreement, the DIP Facility, the DIP Facility Documents, the Disclosure
Statement Order, the Confirmation Order, the Sale Order, the First Day Pleadings, the
Chapter 11 Cases, the formulation, preparation, dissemination, solicitation, negotiation,
entry into, or filing of the Restructuring Support Agreement, the Disclosure Statement, the
Plan, the Plan Supplement, the Prepetition Loan Documents, any other Definitive
Document, or any Restructuring Transaction, contract, instrument, release, or other
agreement or document created or entered into in connection with the Restructuring
Support Agreement, the Disclosure Statement, the DIP Facility, the Plan, the Plan
Supplement, the Sale Transactions, any other Definitive Document, any of the
Restructuring Transactions, the Chapter 11 Cases, the filing of the Chapter 11 Cases, the
pursuit of Confirmation, the pursuit of Consummation, the administration and
implementation of the Plan, including the issuance or distribution of securities pursuant to
the Plan, or the distribution of property under the Plan or any other related agreement, or
upon any other act or omission, transaction, agreement, event, or other occurrence taking
place on or before the Effective Date related or relating to any of the foregoing.
3
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 63 of 130
Notwithstanding anything to the contrary in the foregoing, the releases set forth
above do not release (i) any post-Effective Date obligations of any party or Entity under the
Plan, any Restructuring Transaction, or any document, instrument, or agreement
(including those set forth in the Plan Supplement) executed to implement the Plan, (ii) any
Causes of Action specifically retained by the Debtors pursuant to the Schedule of Retained
Causes of Action to be attached as an exhibit to the Plan Supplement, or (iii) any Claims or
Causes of Action arising out of, or related to, any act or omission of a Released Party that
is determined by a Final Order of the Bankruptcy Court or any other court of competent
jurisdiction to have constituted actual fraud, gross negligence, or willful misconduct (it
being agreed that any Released Parties’ consideration, approval, or receipt of any
distribution did not arise from or relate to actual fraud, gross negligence, or willful
misconduct).
Entry of the Confirmation Order shall constitute the Bankruptcy Court’s approval,
pursuant to Bankruptcy Rule 9019, of the releases set forth in Article VIII.C of the Plan,
which includes by reference each of the related provisions and definitions contained in the
Plan, and further, shall constitute the Bankruptcy Court’s finding that such releases are:
(1) consensual; (2) essential to the Confirmation of the Plan; (3) given in exchange for the
good and valuable consideration provided by the Released Parties; (4) a good faith
settlement and compromise of the Claims released by the releases provided in Article
VIII.C of the Plan; (5) in the best interests of the Debtors and their Estates; (6) fair,
equitable, and reasonable; (7) given and made after due notice and opportunity for a
hearing; and (8) a bar to any of the Releasing Parties asserting any Claim or Cause of
Action released pursuant to the releases provided in Article VIII.C of the Plan.
Definitions Related to the Debtor Release and the Third-Party Release:
UNDER THE PLAN, “AVOIDANCE ACTIONS” MEANS ANY AND ALL AVOIDANCE,
RECOVERY, OR SUBORDINATION ACTIONS OR REMEDIES THAT MAY BE
BROUGHT BY OR ON BEHALF OF THE DEBTORS OR THEIR ESTATES UNDER THE
BANKRUPTCY CODE OR APPLICABLE NON-BANKRUPTCY LAW, INCLUDING
ACTIONS OR REMEDIES UNDER SECTIONS 544, 547, 548, 549, 550, 551, 552, OR 553 OF
THE BANKRUPTCY CODE.
UNDER THE PLAN, “DEBTOR RELEASE” MEANS THE RELEASES GIVEN ON BEHALF
OF THE DEBTORS AND THEIR ESTATES AS SET FORTH IN ARTICLE VIII.B OF THE
PLAN.
4
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 64 of 130
UNDER THE PLAN, “RELEASED PARTIES” MEANS, EACH OF, AND IN EACH CASE,
IN THEIR RESPECTIVE CAPACITIES AS SUCH: (A) THE DEBTORS AND THE
WIND-DOWN DEBTORS, AS APPLICABLE; (B) THE PLAN ADMINISTRATOR; (C)
EACH CONSENTING STAKEHOLDER; (D) THE COMMITTEE AND ITS MEMBERS; (E)
THE PURCHASERS; (F) THE DIP LENDERS; (G) THE AGENTS; (H) ALL HOLDERS OF
CLAIMS WHO OPT IN TO GRANTING THESE RELEASES SET FORTH IN THE PLAN; (I)
ALL HOLDERS OF INTERESTS WHO OPT IN TO GRANTING THESE RELEASES SET
FORTH IN THE PLAN; (J) EACH CURRENT AND FORMER AFFILIATE OF EACH
ENTITY IN CLAUSE (A) THROUGH THE FOLLOWING CLAUSE (K); AND (K) EACH
RELATED PARTY OF EACH ENTITY IN CLAUSE (A) THROUGH THIS CLAUSE (K),
EACH IN THEIR CAPACITY AS SUCH (UNLESS ANY SUCH ENTITY OR RELATED PARTY HAS
OPTED OUT OF THE RELEASES CONTAINED IN ARTICLE VII OF THE PLAN, IN WHICH CASE SUCH
ENTITY OR RELATED PARTY, AS APPLICABLE, SHALL NOT BE A RELEASED PARTY); PROVIDED
THAT, IN EACH CASE, AN ENTITY SHALL NOT BE A RELEASED PARTY IF IT: (X)
ELECTS TO OPT OUT OF THE RELEASES SET FORTH IN ARTICLE VIII.C OF THE PLAN; OR (Y)
TIMELY OBJECTS TO THE RELEASES SET FORTH IN ARTICLE VIII.C OF THE PLAN
AND SUCH OBJECTION IS NOT WITHDRAWN OR OTHERWISE RESOLVED BEFORE
THE CONFIRMATION ORDER IS ENTERED.
UNDER THE PLAN, “RELEASING PARTIES” MEANS, EACH OF, AND IN EACH CASE,
IN THEIR RESPECTIVE CAPACITIES AS SUCH: (A) THE DEBTORS AND THE
WIND-DOWN DEBTORS, AS APPLICABLE; (B) THE PLAN ADMINISTRATOR; (C)
EACH CONSENTING STAKEHOLDER; (D) THE COMMITTEE AND ITS MEMBERS; (E)
THE PURCHASERS; (F) THE DIP LENDERS; (G) THE AGENTS; (H) ALL HOLDERS OF
CLAIMS WHO OPT IN TO GRANTING THESE RELEASES SET FORTH IN THE PLAN; (I)
ALL HOLDERS OF INTERESTS WHO OPT IN TO GRANTING THESE RELEASES SET
FORTH IN THE PLAN; (J) EACH CURRENT AND FORMER AFFILIATE OF EACH
ENTITY IN CLAUSE (A) THROUGH THE FOLLOWING CLAUSE (K); AND (K) EACH
RELATED PARTY OF EACH ENTITY IN CLAUSE (A) THROUGH THIS CLAUSE (K),
FOR WHICH SUCH ENTITY IS LEGALLY ENTITLED TO BIND SUCH RELATED PARTY
TO THE RELEASES CONTAINED IN THE PLAN UNDER APPLICABLE LAW;
PROVIDED, HOWEVER, THAT IN EACH CASE, AN ENTITY SHALL NOT BE
RELEASING PARTY IF IT: (X) ELECTS TO OPT OUT OF THE RELEASE CONTAINED IN THE
PLAN; OR (Y) TIMELY OBJECTS TO THE RELEASES SET FORTH IN ARTICLE VIII.C OF
THE PLAN AND SUCH OBJECTION IS NOT WITHDRAWN OR OTHERWISE RESOLVED
BEFORE THE CONFIRMATION ORDER IS ENTERED.
5
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 65 of 130
IMPORTANT INFORMATION REGARDING THE RELEASES:
AS A HOLDER OF CLAIMS AGAINST OR INTERESTS IN THE DEBTORS, YOU
AREMAY BE A “RELEASING PARTY” UNDER THE PLAN AND ARE DEEMED TO
PROVIDE THE THIRD-PARTY RELEASE CONTAINED IN ARTICLE VIII.C OF THE
PLAN, AS SET FORTH ABOVE. IF YOU MAY CHECK THE BOX BELOW TO ELECT NOT
TO GRANT THE RELEASE CONTAINED IN ARTICLE VIII.GC OF THE PLAN. , YOU
WILL NOT BE CONSIDERED A “RELEASING PARTY” UNDER THE PLAN IF YOU CHECK
THE BOX BELOW AND SUBMIT THE OPT OUT BY THE VOTING DEADLINE. YOU MAY ALSO
VALIDLY OPT OUT OF THE RELEASES BY FILING. AN ENTITY SHALL NOT BE A
“RELEASING PARTY” UNDER THE PLAN IF IT FILES AN OBJECTION TO THE
RELEASES CONTAINED IN THE PLAN WITH THE BANKRUPTCY COURT PRIOR TO
THE PLAN OBJECTION DEADLINE THAT IS NOT WITHDRAWN OR OTHERWISE
RESOLVED BEFORE THE CONFIRMATION ORDER IS ENTERED. THE ELECTION TO
WITHHOLD CONSENT TO GRANT THE THIRD-PARTY RELEASE IS AT YOUR OPTION,
SUBJECT TO ANY OBLIGATION YOU MAY HAVE UNDER THE RESTRUCTURING
SUPPORT AGREEMENT. BY OPTING OUT OFIN TO THE RELEASES SET FORTH IN
ARTICLE VIII.C OF THE PLAN, YOU WILL FOREGORECEIVE THE BENEFIT OF
OBTAINING THE RELEASES SET FORTH IN ARTICLE VIII.C OF THE PLAN IF YOU
ARE A “RELEASED PARTY” IN CONNECTION THEREWITH.
YOU WILL RECEIVE THE SAME TREATMENT ON ACCOUNT OF YOUR
CLAIM(S) UNDER THE PLAN REGARDLESS OF WHETHER YOU ELECT TO NOT
GRANT THE RELEASE CONTAINED IN ARTICLE VIII.C OF THE PLAN.
OPTIONAL RELEASE ELECTION. YOU MAY ELECT TO OPT OUT OFIN TO THE
RELEASE CONTAINED IN ARTICLE VIII.C OF THE PLAN ONLY IF YOU CHECK
THE BOX BELOW:
The Undersigned Holder of the Claim or Interest elects to
OPT OUT ofIN to the Third-Party Release
Article VIII.D of the Plan provides for an exculpation of certain parties (the “Exculpation”):
Except as otherwise expressly provided in the Plan or the Confirmation Order, to
the fullest extent permitted by applicable law and solely to the extent such acts or omissions
occurred between the Petition Date and the Effective Date, no Exculpated Party shall have
or incur any liability for, and each Exculpated Party is released and exculpated from any
Cause of Action for any claim related to any act or omission in connection with, relating to,
or arising out of, the Chapter 11 Cases, the formulation, preparation, dissemination,
negotiation, or filing of the Disclosure Statement, the Sale Transactions, the Plan, the Plan
Supplement, any other Definitive Document, or any Restructuring Transaction, or any
contract, instrument, release or other agreement or document created or entered into in
connection with the Disclosure Statement, the Plan, the Plan Supplement, the Sale
Transactions, any other Definitive Document, any of the Restructuring Transactions, the
filing of the Chapter 11 Cases, the participation in the DIP Facility, the pursuit of the Sale
6
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 66 of 130
Transactions, the pursuit of Confirmation, the pursuit of Consummation, the
administration and implementation of the Plan, including the issuance of securities
pursuant to the Plan, or the distribution of property under the Plan or any other related
agreement, except for claims related to any act or omission that is determined in a Final
Order to have constituted actual fraud, willful misconduct, or gross negligence, but in all
respects such Entities shall be entitled to reasonably rely upon the advice of counsel with
respect to their duties and responsibilities pursuant to the Plan. The Exculpated Parties
have, and upon Consummation shall be deemed to have, participated in good faith and in
compliance with the applicable laws with regard to the solicitation of votes and distribution
of consideration pursuant to the Plan and, therefore, are not, and on account of such
distributions shall not be, liable at any time for the violation of any applicable law, rule, or
regulation governing the solicitation of acceptances or rejections of the Plan or such
distributions made pursuant to the Plan.
Article VIII.E of the Plan establishes an injunction (the “Injunction”):
In accordance with Bankruptcy Code section 1141(d)(3), the Plan does not
discharge the Debtors. Bankruptcy Code section 1141(c) nevertheless provides, among
other things, that the property dealt with by the Plan is free and clear of all Claims and
Interests against the Debtors. Except as otherwise specifically provided in the Plan or for
obligations issued or required to be paid pursuant to the Plan or the Confirmation Order,
all Entities who have held, hold, or may hold Claims or Interests that have been released or
are subject to exculpation pursuant to the Plan are permanently enjoined, from and after
the Effective Date, from taking any of the following actions against, as applicable, the
Debtors, the Wind-Down Debtors, the Exculpated Parties, or the Released Parties, and any
successors, assigns or representatives of such Persons or Entities: (a) commencing or
continuing in any manner any action or other proceeding of any kind on account of or in
connection with or with respect to any such Claims or Interests; (b) enforcing, attaching,
collecting, or recovering by any manner or means any judgment, award, decree, or order
against such Entities on account of or in connection with or with respect to any such
Claims or Interests; (c) creating, perfecting, or enforcing any encumbrance of any kind
against such Entities or the property or the estates of such Entities on account of or in
connection with or with respect to any such Claims or Interests; (d) asserting any right of
setoff, subrogation, or recoupment of any kind against any obligation due from such
Entities or against the property of such Entities on account of or in connection with or with
respect to any such Claims or Interests unless such Holder has Filed a motion requesting
the right to perform such setoff on or before the Effective Date; and (e) commencing or
continuing in any manner any action or other proceeding of any kind on account of or in
connection with or with respect to any such Claims or Interests released or settled
pursuant to the Plan. Notwithstanding anything to the contrary in the foregoing, the
injunction set forth above does not enjoin the enforcement of any obligations arising on or
after the Effective Date of any Person or Entity under the Plan, any post-Effective Date
transaction contemplated by the Restructuring Transactions, or any document,
instrument, or agreement (including those set forth in the Plan Supplement) executed to
implement the Plan.
7
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 67 of 130
Upon entry of the Confirmation Order, all Holders of Claims and Interests and
their respective current and former employees, agents, officers, directors, managers,
principals, and direct and indirect Affiliates, in their capacities as such, shall be enjoined
from taking any actions to interfere with the implementation or Consummation of the
Plan. Each Holder of an Allowed Claim or Allowed Interest, as applicable, by accepting,
or being eligible to accept, distributions under or Reinstatement of such Claim or Interest,
as applicable, pursuant to the Plan, shall be deemed to have consented to the injunction
provisions set forth in Article VIII.E of the Plan.
No Person or Entity may commence or pursue a Claim or Cause of Action of any kind against the
Debtors, the Wind-Down Debtors, the Exculpated Parties, or the Released Parties that relates to or is
reasonably likely to relate to any act or omission in connection with, relating to, or arising out of a Claim or
Cause of Action subject to Article VIII.E of the Plan, without the Bankruptcy Court (i) first determining,
after notice and a hearing, that such Claim or Cause of Action represents a colorable Claim of any kind, and
(ii) specifically authorizing such Person or Entity to bring such Claim or Cause of Action against any such
Debtor, Wind-Down Debtor, Exculpated Party, or Released Party.
Item 2. Certifications.
By signing this Opt OutIn Form, the undersigned certifies to the Bankruptcy Court and the
Debtors that:
(a) as of the Voting Record Date, either: (i) the Entity is the Holder of a Claim or
Interest; or (ii) the Entity is an authorized signatory for the Entity that is a Holder of a
Claim or Interest;
(b) the Entity (or in the case of an authorized signatory, the Holder) has received a copy
of the Notice of Non-Voting Status toand Opt In to Releases for Holders of
Unimpaired Claims or Interests Conclusively Deemed to Accept the Plan and that
this Opt OutIn Form is made pursuant to the terms and conditions set forth therein;
(c) the Entity has submitted the same respective election concerning the releases with
respect to all Claims or Interests in a single Class; and
(d) no other Opt OutIn Form has been submitted or, if any other Opt OutIn Forms have
been submitted with respect to such Claims or Interests, then any such earlier Opt
OutIn Forms are hereby revoked.
8
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 68 of 130
Name of Holder:
(print or type)
Signature:
Name of Signatory:
(if other than Holder)
Title:
Address:
Telephone Number:
Email:
Date Completed:
IF YOU HAVE MADE THE OPTIONAL OPT OUTIN ELECTION, PLEASE
COMPLETE, SIGN, AND DATE THIS OPT OUTIN FORM AND RETURN IT
PROMPTLY BY ONLY ONE OF THE METHODS BELOW.
By regular mail, overnight mail, or hand delivery at:
Vyaire Medical, Inc. Ballot Processing
c/o Omni Agent Solutions, Inc.
5955 De Soto Avenue, Suite 100
Woodland Hills, CA 91367
OR
By electronic, online submission:
The Claims and Noticing Agent will accept Opt OutIn Forms if properly
completed through the Opt OutIn Portal. To submit your Opt OutIn Form, please
visit https://omniagentsolutions.com/Vyaire (the “Opt OutIn Portal”) and follow
the instructions to submit your Opt OutIn Form.
9
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 69 of 130
The Claims and Noticing Agent’s Opt OutIn Portal is the sole manner in which Opt OutIn
Forms will be accepted via electronic or online transmission. Opt OutIn Forms submitted
by facsimile, email, or other means of electronic transmission will not be counted.
Parties that submit their Opt OutIn Form using the Opt OutIn Portal should NOT also submit a
paper Opt OutIn Form.
THE VOTING DEADLINE IS 4:00 P.M., PREVAILING EASTERN TIME, ON
NOVEMBER 4, 2024.
THE CLAIMS AND NOTICING AGENT MUST ACTUALLY RECEIVE YOUR OPT OUTIN
ELECTION ON OR BEFORE THE VOTING DEADLINE. IF YOU HAVE ANY
QUESTIONS REGARDING THIS OPT OUTIN FORM, PLEASE CONTACT:
VYAIREINQUIRIES@OMNIAGNT.COM FOR FURTHER ASSISTANCE.
10
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 70 of 130
Exhibit 5
Form of Impaired Non-Voting Status Notice
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 71 of 130
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 NON-VOTING STATUS AND OPT OUTIN
OFTO RELEASES TOFOR HOLDERS OF IMPAIRED CLAIMS OR
INTERESTS CONCLUSIVELY DEEMED TO REJECT THE PLAN
PLEASE TAKE NOTICE THAT on [●], 2024, the United States Bankruptcy Court for
the District of Delaware (the “Court”) entered an order [Docket No. [●]]
(the “Disclosure Statement Order”): (a) authorizing the above-captioned debtors and debtors in
possession (collectively, the “Debtors”) to solicit votes on the Joint Chapter 11 Plan of Vyaire
Medical, Inc. and Its Debtor Affiliates [Docket No. [●]] (as modified, amended, or supplemented
from time to time, the “Plan”);2 (b) approving on an interim basis the Disclosure Statement for
the Joint Chapter 11 Plan of Vyaire Medical, Inc. and Its Debtor Affiliates [Docket No. [●]]
(the “Disclosure Statement”) as containing “adequate information” pursuant to section 1125 of
the Bankruptcy Code; (c) approving the solicitation materials and documents to be included in
the solicitation packages; (d) approving procedures for soliciting, receiving, and tabulating votes
on the Plan and for filing objections to the Plan; and (e) granting related relief.
PLEASE TAKE FURTHER NOTICE THAT because of the nature and treatment of
your Claim under the Plan, you are not entitled to vote on the Plan. Specifically, under the
terms of the Plan, as a Holder of a Claim (as currently asserted against the Debtors) or Interest in
the Debtors that is Impaired and conclusively deemed to have rejected the Plan pursuant to
section 1126(g) of the Bankruptcy Code, you are not entitled to vote on the Plan.
PLEASE TAKE FURTHER NOTICE THAT the hearing at which the Court will consider
Confirmation of the Plan (the “Confirmation Hearing”) will commence on November 14, 2024,
at 1:30 p.m., prevailing Eastern Time, before The Honorable Brendan L. Shannon, in the
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 not otherwise defined herein have the same meaning as set forth in the Plan.
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 72 of 130
United States Bankruptcy Court for the District of Delaware, located at 824 North Market St.,
6th Floor, Courtroom No. 1, Wilmington, DE 19801.
PLEASE TAKE FURTHER NOTICE THAT the deadline for filing objections to the
Plan is November 4, 2024, at 4:00 p.m., prevailing Eastern Time (the “Plan Objection
Deadline”). All objections to the relief sought at the Confirmation Hearing must: (a) be in
writing; (b) conform to the Bankruptcy Code, Bankruptcy Rules, the Local Rules, and any orders
of the Court; (c) state, with particularity, the basis and nature of any objection to the Plan and, if
practicable, a proposed modification to the Plan or Disclosure Statement that would resolve such
objection; and (d) be filed with the Court on or before the Plan Objection Deadline.
PLEASE TAKE FURTHER NOTICE THAT if you would like to obtain a copy of the
Disclosure Statement, the Plan, the Plan Supplement, or related documents, you should contact
Omni Agent Solutions, Inc., the claims and noticing agent retained by the Debtors in these
chapter 11 cases (the “Claims and Noticing Agent”), by: (a) writing via first class mail, to
Vyaire Medical, Inc. et al., c/o Omni Agent Solutions, Inc., 5955 De Soto Avenue, Suite 100,
Woodland Hills, CA 91367; (b) writing via electronic mail to Vyaireinquiries@omniagnt.com;
or (c) calling the Debtors’ restructuring hotline at (866) 956-2140 (U.S. Toll-Free/Domestic) or
+1 (818) 666-3635 (International). You may also obtain copies of any pleadings filed in these
chapter 11 cases (a) for a fee via PACER at: http://www.deb.uscourts.gov; or (b) at no charge
from Omni Agent Solutions, Inc. by accessing the Debtors’ restructuring website at
https://omniagentsolutions.com/Vyaire.
ARTICLE VIII OF THE PLAN CONTAINS RELEASE, EXCULPATION, AND INJUNCTION
PROVISIONS, AND ARTICLE VIII.C OF THE PLAN CONTAINS A THIRD-PARTY
RELEASE. THUS, YOU ARE ADVISED TO REVIEW AND CONSIDER THE PLAN
CAREFULLY BECAUSE YOUR RIGHTS MIGHT BE AFFECTED THEREUNDER.
DIRECTIONS REGARDING THE RELEASE OPT-OUTOPT-IN FORM ARE INCLUDED IN
THIS NOTICE.
AS SET FORTH IN THE PLAN, ALL HOLDERS OF CLAIMS OR INTERESTS THAT DO
NOT ELECT TO OPT OUT OFIN TO THE PROVISIONS CONTAINED IN ARTICLE VIII
OF THE PLAN USING THE ENCLOSED OPT OUTIN FORM OR BY FILING AN
OBJECTION TO THE RELEASES CONTAINED IN THE PLAN WILL BE DEEMED TO
HAVE EXPRESSLY, UNCONDITIONALLY, GENERALLY, INDIVIDUALLY, AND
COLLECTIVELY CONSENTED TO THE RELEASE AND DISCHARGE OF ALL CLAIMS
AND CAUSES OF ACTION AGAINST THE DEBTORS AND THE RELEASED PARTIES.
BY ELECTING TO OPT OUT OFIN TO THE RELEASES SET FORTH IN ARTICLE VIII.C
OF THE PLAN, YOU WILL FOREGORECEIVE THE BENEFIT OF OBTAINING THE
RELEASES SET FORTH IN ARTICLE VIII OF THE PLAN IF YOU ARE A RELEASED
PARTY IN CONNECTION THEREWITH.
2
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 73 of 130
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
Co-Counsel to the Debtors Co-Counsel to the Debtors
and Debtors in Possession and Debtors in Possession
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 74 of 130
OPTIONAL: RELEASE OPT OUTIN FORM
You are receiving this optional opt outin form (the “Opt OutIn Form”) because you are or may be
a Holder of a Claim or Interest that is not entitled to vote on the Joint Chapter 11 Plan of Vyaire
Medical, Inc. and Its Debtor Affiliates [Docket No. [●]] (as modified, amended, or supplemented
from time to time, the “Plan”). Holders of Claims or Interests are deemed to grant the
Third-Party Release set forth in the Plan unless a Holder affirmatively opts outin by November 4,
2024, at 4:00 p.m., prevailing Eastern Time (the “Opt OutIn Deadline”). Holders of Claims or
Interests may affirmatively opt outin by, no later than the Voting Deadline, (i) submitting this
form in accordance with the directions herein or (ii) filing an objection to the Third-Party
Release with the Bankruptcy Court.
If you believe you are a Holder of a Claim or Interest with respect to the Debtors and
choose to opt out ofin to the Third-Party Release set forth in Article VIII.C of the Plan,
please either (i) promptly complete, sign, and date this Opt OutIn Form and return it via first
class mail, overnight courier, or hand delivery to Omni Agent Solutions, Inc.
(the “Claims and Noticing Agent”) at the address set forth below or (ii) submit your Opt OutIn
Form through the Claims and Noticing Agent’s online Opt OutIn Portal in accordance with the
directions provided below. Parties that submit their Opt OutIn Form using the Opt OutIn Portal
should NOT also submit a paper Opt OutIn Form.
THIS OPT OUTIN FORM MUST BE ACTUALLY RECEIVED (WHETHER A
PHYSICAL COPY IS RETURNED OR THE OPT OUTIN FORM IS COMPLETED
ONLINE) BY THE CLAIMS AND NOTICING AGENT BY THE OPT OUTIN
DEADLINE. IF THE OPT OUTIN FORM IS RECEIVED AFTER THE OPT OUTIN
DEADLINE, IT WILL NOT BE COUNTED.
1
Item 1. Important information regarding releases under the Plan.
Article VIII.B of the Plan provides for a release by the Debtors (the “Debtor Release”):
Except as otherwise specifically provided herein or the Confirmation Order,
pursuant to section 1123(b) of the Bankruptcy Code, for good and valuable consideration,
the adequacy of which is hereby confirmed, upon entry of the Confirmation Order, as of
the Effective Date, each Released Party is, and is deemed, hereby fully, conclusively,
absolutely, unconditionally, irrevocably, and forever released and discharged by each and
all of the Debtors, the Wind-Down Debtors, and their Estates, in each case on behalf of
themselves and their respective successors, assigns, and representatives from any and all
Claims, obligations, rights, suits, damages, and Causes of Action, remedies, and liabilities
whatsoever, whether known or unknown, including any derivative claims asserted or
assertable on behalf of any of the Debtors, the Wind-Down Debtors, and their Estates, that
1 The Plan provisions referenced herein are for summary purposes only and do not include all provisions of the
Plan that may affect your rights. If there is any inconsistency between the provisions set forth herein and the
Plan, the Plan governs. Please read the Plan carefully before completing this Opt OutIn Form. Defined terms
used bot not defined herein shall have the meaning ascribed to such term as in the Plan.
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 75 of 130
the Debtors, the Wind-Down Debtors, or their Estates would have been legally entitled to
assert in their own right (whether individually or collectively), or on behalf of the Holder
of any Claim against, or Interest in, a Debtor or other Entity, or that any Holder of any
Claim against or Interest in a Debtor or other Entity could have asserted on behalf of the
Debtors based on or relating to, or in any manner arising from, in whole or in part, the
Debtors (including the capital structure, management, ownership, or operation thereof or
otherwise), the subject matter of, or the transactions or events giving rise to, any Claim or
Interest that is treated in the Plan, the business or contractual arrangements between any
Debtor or the Wind-Down Debtors and any Released Party, the Debtors’ in- or
out-of-court restructuring efforts, the purchase, sale, or rescission of any security of the
Debtors or the Wind-Down Debtors, intercompany transactions between or among the
Debtors or between the Debtors and their non-Debtor Affiliates, the First Lien Credit
Agreement, the Second Lien Credit Agreement, the Note Purchase Agreement, the DIP
Facility, the DIP Facility Documents, the Disclosure Statement Order, the Confirmation
Order, the Sale Order, the First Day Pleadings, the Chapter 11 Cases, the formulation,
preparation, dissemination, solicitation, negotiation, entry into, or filing of the
Restructuring Support Agreement, the Disclosure Statement, the Plan, the Plan
Supplement, the Prepetition Loan Documents, any other Definitive Document, or any
Restructuring Transaction, contract, instrument, release, or other agreement or document
created or entered into in connection with the Restructuring Support Agreement, the
Disclosure Statement, the DIP Facility, the Plan, the Plan Supplement, the Sale
Transactions, any other Definitive Document, any of the Restructuring Transactions, the
Chapter 11 Cases, the filing of the Chapter 11 Cases, the pursuit of Confirmation, the
pursuit of Consummation, the administration and implementation of the Plan, including
the issuance or distribution of securities pursuant to the Plan, or the distribution of
property under the Plan or any other related agreement, or upon any other act or
omission, transaction, agreement, event, or other occurrence taking place on or before the
Effective Date related or relating to any of the foregoing.
Notwithstanding anything to the contrary in the foregoing, the releases set forth
above do not release (i) any post-Effective Date obligations of any party or Entity under the
Plan, the Confirmation Order, any Restructuring Transaction, or any document,
instrument, or agreement (including those set forth in the Plan Supplement) executed to
implement the Plan or the Restructuring Transactions, (ii) any Causes of Action
specifically retained by the Debtors pursuant to the Schedule of Retained Causes of Action
to be attached as an exhibit to the Plan Supplement, or (iii) any Claims or Causes of Action
arising out of, or related to, any act or omission of a Released Party that is determined by a
Final Order of the Bankruptcy Court or any other court of competent jurisdiction to have
constituted actual fraud, gross negligence, or willful misconduct (it being agreed that any
Released Parties’ consideration, approval, or receipt of any distribution did not arise from
or relate to actual fraud, gross negligence, or willful misconduct).
Entry of the Confirmation Order shall constitute the Bankruptcy Court’s approval,
pursuant to Bankruptcy Rule 9019, of the releases set forth in Article VIII.B of the Plan,
which includes by reference each of the related provisions and definitions contained in the
Plan, and further, shall constitute the Bankruptcy Court’s finding that such release is: (1)
in exchange for the good and valuable consideration provided by the Released Parties,
2
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 76 of 130
including, the Released Parties’ contribution to facilitating the Restructuring Transactions
and implementing the Plan; (2) a good faith settlement and compromise of the Claims
released by the Debtor Release; (3) in the best interests of the Debtors and all Holders of
Claims and Interests; (4) fair, equitable, and reasonable; (5) given and made after due
notice and opportunity for a hearing; and (6) a bar to any of the Debtors, the Wind-Down
Debtors, or the Debtors’ Estates asserting any Claim or Cause of Action released pursuant
to the Debtor Release.
Article VIII.C of the Plan provides for a third-party release by Holders of Claims and Interests
(the “Third-Party Release”):
Except as otherwise specifically provided in the Plan or the Confirmation Order,
pursuant to section 1123(b) of the Bankruptcy Code, for good and valuable consideration,
the adequacy of which is hereby confirmed, upon entry of the Confirmation Order, as of
the Effective Date, each Releasing Party is, and is deemed to have, hereby fully,
conclusively, absolutely, unconditionally, irrevocably and forever released and discharged
each Debtor, Wind-Down Debtor, and Released Party from any and all Claims,
obligations, rights, suits, damages, and Causes of Action, remedies, and liabilities
whatsoever, whether known or unknown, including any derivative claims asserted or
assertable on behalf of the Debtors, the Wind-Down Debtors, and their Estates (as
applicable) that such Entity would have been legally entitled to assert in their own right
(whether individually or collectively), based on or relating to, or in any manner arising
from, in whole or in part, the Debtors (including the capital structure, management,
ownership, or operation thereof or otherwise), the purchase, sale, or recission of any
security of the Debtors or the Wind-Down Debtors, the subject matter of, or the
transactions or events giving rise to, any Claim or Interest that is treated in the Plan, the
business or contractual arrangements between any Debtor or the Wind-Down Debtors and
any Released Party, the Debtors’ in- or out-of-court restructuring efforts, intercompany
transactions between or among the Debtors or between the Debtors and their non-Debtor
Affiliates, the First Lien Credit Agreement, the Second Lien Credit Agreement, the Note
Purchase Agreement, the DIP Facility, the DIP Facility Documents, the Disclosure
Statement Order, the Confirmation Order, the Sale Order, the First Day Pleadings, the
Chapter 11 Cases, the formulation, preparation, dissemination, solicitation, negotiation,
entry into, or filing of the Restructuring Support Agreement, the Disclosure Statement, the
Plan, the Plan Supplement, the Prepetition Loan Documents, any other Definitive
Document, or any Restructuring Transaction, contract, instrument, release, or other
agreement or document created or entered into in connection with the Restructuring
Support Agreement, the Disclosure Statement, the DIP Facility, the Plan, the Plan
Supplement, the Sale Transactions, any other Definitive Document, any of the
Restructuring Transactions, the Chapter 11 Cases, the filing of the Chapter 11 Cases, the
pursuit of Confirmation, the pursuit of Consummation, the administration and
implementation of the Plan, including the issuance or distribution of securities pursuant to
the Plan, or the distribution of property under the Plan or any other related agreement, or
upon any other act or omission, transaction, agreement, event, or other occurrence taking
place on or before the Effective Date related or relating to any of the foregoing.
3
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 77 of 130
Notwithstanding anything to the contrary in the foregoing, the releases set forth
above do not release (i) any post-Effective Date obligations of any party or Entity under the
Plan, any Restructuring Transaction, or any document, instrument, or agreement
(including those set forth in the Plan Supplement) executed to implement the Plan, (ii) any
Causes of Action specifically retained by the Debtors pursuant to the Schedule of Retained
Causes of Action to be attached as an exhibit to the Plan Supplement, or (iii) any Claims or
Causes of Action arising out of, or related to, any act or omission of a Released Party that
is determined by a Final Order of the Bankruptcy Court or any other court of competent
jurisdiction to have constituted actual fraud, gross negligence, or willful misconduct (it
being agreed that any Released Parties’ consideration, approval, or receipt of any
distribution did not arise from or relate to actual fraud, gross negligence, or willful
misconduct).
Entry of the Confirmation Order shall constitute the Bankruptcy Court’s approval,
pursuant to Bankruptcy Rule 9019, of the releases set forth in Article VIII.C of the Plan,
which includes by reference each of the related provisions and definitions contained in the
Plan, and further, shall constitute the Bankruptcy Court’s finding that such releases are:
(1) consensual; (2) essential to the Confirmation of the Plan; (3) given in exchange for the
good and valuable consideration provided by the Released Parties; (4) a good faith
settlement and compromise of the Claims released by the releases provided in Article
VIII.C of the Plan; (5) in the best interests of the Debtors and their Estates; (6) fair,
equitable, and reasonable; (7) given and made after due notice and opportunity for a
hearing; and (8) a bar to any of the Releasing Parties asserting any Claim or Cause of
Action released pursuant to the releases provided in Article VIII.C of the Plan.
Definitions Related to the Debtor Release and the Third-Party Release:
UNDER THE PLAN, “AVOIDANCE ACTIONS” MEANS ANY AND ALL AVOIDANCE,
RECOVERY, OR SUBORDINATION ACTIONS OR REMEDIES THAT MAY BE
BROUGHT BY OR ON BEHALF OF THE DEBTORS OR THEIR ESTATES UNDER THE
BANKRUPTCY CODE OR APPLICABLE NON-BANKRUPTCY LAW, INCLUDING
ACTIONS OR REMEDIES UNDER SECTIONS 544, 547, 548, 549, 550, 551, 552, OR 553 OF
THE BANKRUPTCY CODE.
UNDER THE PLAN, “DEBTOR RELEASE” MEANS THE RELEASES GIVEN ON BEHALF
OF THE DEBTORS AND THEIR ESTATES AS SET FORTH IN ARTICLE VIII.B OF THE
PLAN.
4
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 78 of 130
UNDER THE PLAN, “RELEASED PARTIES” MEANS, EACH OF, AND IN EACH CASE,
IN THEIR RESPECTIVE CAPACITIES AS SUCH: (A) THE DEBTORS AND THE
WIND-DOWN DEBTORS, AS APPLICABLE; (B) THE PLAN ADMINISTRATOR; (C)
EACH CONSENTING STAKEHOLDER; (D) THE COMMITTEE AND ITS MEMBERS; (E)
THE PURCHASERS; (F) THE DIP LENDERS; (G) THE AGENTS; (H) ALL HOLDERS OF
CLAIMS WHO OPT IN TO GRANTING THESE RELEASES SET FORTH IN THE PLAN; (I)
ALL HOLDERS OF INTERESTS WHO OPT IN TO GRANTING THESE RELEASES SET
FORTH IN THE PLAN; (J) EACH CURRENT AND FORMER AFFILIATE OF EACH
ENTITY IN CLAUSE (A) THROUGH THE FOLLOWING CLAUSE (K); AND (K) EACH
RELATED PARTY OF EACH ENTITY IN CLAUSE (A) THROUGH THIS CLAUSE (K),
EACH IN THEIR CAPACITY AS SUCH (UNLESS ANY SUCH ENTITY OR RELATED PARTY HAS
OPTED OUT OF THE RELEASES CONTAINED IN ARTICLE VIII OF THE PLAN, IN WHICH CASE SUCH
ENTITY OR RELATED PARTY, AS APPLICABLE, SHALL NOT BE A RELEASED PARTY); PROVIDED
THAT, IN EACH CASE, AN ENTITY SHALL NOT BE A RELEASED PARTY IF IT: (X)
ELECTS TO OPT OUT OF THE RELEASES SET FORTH IN ARTICLE VIII.C OF THE PLAN; OR (Y)
TIMELY OBJECTS TO THE RELEASES SET FORTH IN ARTICLE VIII.C OF THE PLAN
AND SUCH OBJECTION IS NOT WITHDRAWN OR OTHERWISE RESOLVED BEFORE
THE CONFIRMATION ORDER IS ENTERED.
UNDER THE PLAN, “RELEASING PARTIES” MEANS, EACH OF, AND IN EACH CASE,
IN THEIR RESPECTIVE CAPACITIES AS SUCH: (A) THE DEBTORS AND THE
WIND-DOWN DEBTORS, AS APPLICABLE; (B) THE PLAN ADMINISTRATOR; (C)
EACH CONSENTING STAKEHOLDER; (D) THE COMMITTEE AND ITS MEMBERS; (E)
THE PURCHASERS; (F) THE DIP LENDERS; (G) THE AGENTS; (H) ALL HOLDERS OF
CLAIMS WHO OPT IN TO GRANTING THESE RELEASES SET FORTH IN THE PLAN; (I)
ALL HOLDERS OF INTERESTS WHO OPT IN TO GRANTING THESE RELEASES SET
FORTH IN THE PLAN; (J) EACH CURRENT AND FORMER AFFILIATE OF EACH
ENTITY IN CLAUSE (A) THROUGH THE FOLLOWING CLAUSE (K); AND (K) EACH
RELATED PARTY OF EACH ENTITY IN CLAUSE (A) THROUGH THIS CLAUSE (K),
FOR WHICH SUCH ENTITY IS LEGALLY ENTITLED TO BIND SUCH RELATED PARTY
TO THE RELEASES CONTAINED IN THE PLAN UNDER APPLICABLE LAW;
PROVIDED, HOWEVER, THAT IN EACH CASE, AN ENTITY SHALL NOT BE
RELEASING PARTY IF IT: (X) ELECTS TO OPT OUT OF THE RELEASE CONTAINED IN THE
PLAN; OR (Y) TIMELY OBJECTS TO THE RELEASES SET FORTH IN ARTICLE VIII.C OF
THE PLAN AND SUCH OBJECTION IS NOT WITHDRAWN OR OTHERWISE RESOLVED
BEFORE THE CONFIRMATION ORDER IS ENTERED.
5
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 79 of 130
IMPORTANT INFORMATION REGARDING THE RELEASES:
AS A HOLDER OF CLAIMS AGAINST OR INTERESTS IN THE DEBTORS, YOU
AREMAY BE A “RELEASING PARTY” UNDER THE PLAN AND ARE DEEMED TO
PROVIDE THE THIRD-PARTY RELEASE CONTAINED IN ARTICLE VIII.C OF THE
PLAN, AS SET FORTH ABOVE. IF YOU MAY CHECK THE BOX BELOW TO ELECT NOT
TO GRANT THE RELEASE CONTAINED IN ARTICLE VIII.GC OF THE PLAN. , YOU
WILL NOT BE CONSIDERED A “RELEASING PARTY” UNDER THE PLAN IF YOU CHECK
THE BOX BELOW AND SUBMIT THE OPT OUT BY THE VOTING DEADLINE. YOU MAY ALSO
VALIDLY OPT OUT OF THE RELEASES BY FILING. AN ENTITY SHALL NOT BE A
“RELEASING PARTY” UNDER THE PLAN IF IT FILES AN OBJECTION TO THE
RELEASES CONTAINED IN THE PLAN WITH THE BANKRUPTCY COURT PRIOR TO
THE PLAN OBJECTION DEADLINE THAT IS NOT WITHDRAWN OR OTHERWISE
RESOLVED BEFORE THE CONFIRMATION ORDER IS ENTERED. THE ELECTION TO
WITHHOLD CONSENT TO GRANT THE THIRD-PARTY RELEASE IS AT YOUR OPTION,
SUBJECT TO ANY OBLIGATION YOU MAY HAVE UNDER THE RESTRUCTURING
SUPPORT AGREEMENT. BY OPTING OUT OFIN TO THE RELEASES SET FORTH IN
ARTICLE VIII.C OF THE PLAN, YOU WILL FOREGORECEIVE THE BENEFIT OF
OBTAINING THE RELEASES SET FORTH IN ARTICLE VIII.C OF THE PLAN IF YOU
ARE A “RELEASED PARTY” IN CONNECTION THEREWITH.
YOU WILL RECEIVE THE SAME TREATMENT ON ACCOUNT OF YOUR
CLAIM(S) UNDER THE PLAN REGARDLESS OF WHETHER YOU ELECT TO NOT
GRANT THE RELEASE CONTAINED IN ARTICLE VIII.C OF THE PLAN.
OPTIONAL RELEASE ELECTION. YOU MAY ELECT TO OPT OUT OFIN TO THE
RELEASE CONTAINED IN ARTICLE VIII.C OF THE PLAN ONLY IF YOU CHECK
THE BOX BELOW:
The Undersigned Holder of the Claim or Interest elects to
OPT OUT ofIN to the Third-Party Release
Article VIII.D of the Plan provides for an exculpation of certain parties (the “Exculpation”):
Except as otherwise expressly provided in the Plan or the Confirmation Order, to
the fullest extent permitted by applicable law and solely to the extent such acts or omissions
occurred between the Petition Date and the Effective Date, no Exculpated Party shall have
or incur any liability for, and each Exculpated Party is released and exculpated from any
Cause of Action for any claim related to any act or omission in connection with, relating to,
or arising out of, the Chapter 11 Cases, the formulation, preparation, dissemination,
negotiation, or filing of the Disclosure Statement, the Sale Transactions, the Plan, the Plan
Supplement, any other Definitive Document, or any Restructuring Transaction, or any
contract, instrument, release or other agreement or document created or entered into in
connection with the Disclosure Statement, the Plan, the Plan Supplement, the Sale
Transactions, any other Definitive Document, any of the Restructuring Transactions, the
filing of the Chapter 11 Cases, the participation in the DIP Facility, the pursuit of the Sale
6
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 80 of 130
Transactions, the pursuit of Confirmation, the pursuit of Consummation, the
administration and implementation of the Plan, including the issuance of securities
pursuant to the Plan, or the distribution of property under the Plan or any other related
agreement, except for claims related to any act or omission that is determined in a Final
Order to have constituted actual fraud, willful misconduct, or gross negligence, but in all
respects such Entities shall be entitled to reasonably rely upon the advice of counsel with
respect to their duties and responsibilities pursuant to the Plan. The Exculpated Parties
have, and upon Consummation shall be deemed to have, participated in good faith and in
compliance with the applicable laws with regard to the solicitation of votes and distribution
of consideration pursuant to the Plan and, therefore, are not, and on account of such
distributions shall not be, liable at any time for the violation of any applicable law, rule, or
regulation governing the solicitation of acceptances or rejections of the Plan or such
distributions made pursuant to the Plan.
Article VIII.E of the Plan establishes an injunction (the “Injunction”):
In accordance with Bankruptcy Code section 1141(d)(3), the Plan does not
discharge the Debtors. Bankruptcy Code section 1141(c) nevertheless provides, among
other things, that the property dealt with by the Plan is free and clear of all Claims and
Interests against the Debtors. Except as otherwise specifically provided in the Plan or for
obligations issued or required to be paid pursuant to the Plan or the Confirmation Order,
all Entities who have held, hold, or may hold Claims or Interests that have been released or
are subject to exculpation pursuant to the Plan are permanently enjoined, from and after
the Effective Date, from taking any of the following actions against, as applicable, the
Debtors, the Wind-Down Debtors, the Exculpated Parties, or the Released Parties, and any
successors, assigns or representatives of such Persons or Entities: (a) commencing or
continuing in any manner any action or other proceeding of any kind on account of or in
connection with or with respect to any such Claims or Interests; (b) enforcing, attaching,
collecting, or recovering by any manner or means any judgment, award, decree, or order
against such Entities on account of or in connection with or with respect to any such
Claims or Interests; (c) creating, perfecting, or enforcing any encumbrance of any kind
against such Entities or the property or the estates of such Entities on account of or in
connection with or with respect to any such Claims or Interests; (d) asserting any right of
setoff, subrogation, or recoupment of any kind against any obligation due from such
Entities or against the property of such Entities on account of or in connection with or with
respect to any such Claims or Interests unless such Holder has Filed a motion requesting
the right to perform such setoff on or before the Effective Date; and (e) commencing or
continuing in any manner any action or other proceeding of any kind on account of or in
connection with or with respect to any such Claims or Interests released or settled
pursuant to the Plan. Notwithstanding anything to the contrary in the foregoing, the
injunction set forth above does not enjoin the enforcement of any obligations arising on or
after the Effective Date of any Person or Entity under the Plan, any post-Effective Date
transaction contemplated by the Restructuring Transactions, or any document,
instrument, or agreement (including those set forth in the Plan Supplement) executed to
implement the Plan.
7
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 81 of 130
Upon entry of the Confirmation Order, all Holders of Claims and Interests and
their respective current and former employees, agents, officers, directors, managers,
principals, and direct and indirect Affiliates, in their capacities as such, shall be enjoined
from taking any actions to interfere with the implementation or Consummation of the
Plan. Each Holder of an Allowed Claim or Allowed Interest, as applicable, by accepting,
or being eligible to accept, distributions under or Reinstatement of such Claim or Interest,
as applicable, pursuant to the Plan, shall be deemed to have consented to the injunction
provisions set forth in Article VIII.E of the Plan.
No Person or Entity may commence or pursue a Claim or Cause of Action of any kind against the
Debtors, the Wind-Down Debtors, the Exculpated Parties, or the Released Parties that relates to or is
reasonably likely to relate to any act or omission in connection with, relating to, or arising out of a Claim or
Cause of Action subject to Article VIII.E of the Plan, without the Bankruptcy Court (i) first determining,
after notice and a hearing, that such Claim or Cause of Action represents a colorable Claim of any kind, and
(ii) specifically authorizing such Person or Entity to bring such Claim or Cause of Action against any such
Debtor, Wind-Down Debtor, Exculpated Party, or Released Party.
Item 2. Certifications.
By signing this Opt OutIn Form, the undersigned certifies to the Bankruptcy Court and the
Debtors that:
(a) as of the Voting Record Date, either: (i) the Entity is the Holder of a Claim or
Interest; or (ii) the Entity is an authorized signatory for the Entity that is a Holder of a
Claim or Interest;
(b) the Entity (or in the case of an authorized signatory, the Holder) has received a copy
of the Notice of Non-Voting Status toand Opt In to Releases for Holders of
Unimpaired Claims or Interests Conclusively Deemed to Accept the Plan and that
this Opt OutIn Form is made pursuant to the terms and conditions set forth therein;
(c) the Entity has submitted the same respective election concerning the releases with
respect to all Claims or Interests in a single Class; and
(d) no other Opt OutIn Form has been submitted or, if any other Opt OutIn Forms have
been submitted with respect to such Claims or Interests, then any such earlier Opt
OutIn Forms are hereby revoked.
8
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 82 of 130
Name of Holder:
(print or type)
Signature:
Name of Signatory:
(if other than Holder)
Title:
Address:
Telephone Number:
Email:
Date Completed:
IF YOU HAVE MADE THE OPTIONAL OPT OUTIN ELECTION, PLEASE
COMPLETE, SIGN, AND DATE THIS OPT OUTIN FORM AND RETURN IT
PROMPTLY BY ONLY ONE OF THE METHODS BELOW.
By regular mail, overnight mail, or hand delivery at:
Vyaire Medical, Inc. Ballot Processing
c/o Omni Agent Solutions, Inc.
5955 De Soto Avenue, Suite 100
Woodland Hills, CA 91367
OR
By electronic, online submission:
The Claims and Noticing Agent will accept Opt OutIn Forms if properly
completed through the Opt OutIn Portal. To submit your Opt OutIn Form, please
visit https://omniagentsolutions.com/Vyaire (the “Opt Outin Portal”) and follow
the instructions to submit your Opt OutIn Form.
9
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 83 of 130
The Claims and Noticing Agent’s Opt Outin Portal is the sole manner in which Opt OutIn
Forms will be accepted via electronic or online transmission. Opt OutIn Forms submitted
by facsimile, email, or other means of electronic transmission will not be counted.
Parties that submit their Opt OutIn Form using the Opt OutIn Portal should NOT also submit a
paper Opt OutIn Form.
THE VOTING DEADLINE IS 4:00 P.M., PREVAILING EASTERN TIME, ON
NOVEMBER 4, 2024.
THE CLAIMS AND NOTICING AGENT MUST ACTUALLY RECEIVE YOUR OPT OUTIN
ELECTION ON OR BEFORE THE VOTING DEADLINE. IF YOU HAVE ANY
QUESTIONS REGARDING THIS OPT OUTIN FORM, PLEASE CONTACT:
VYAIREINQUIRIES@OMNIAGNT.COM FOR FURTHER ASSISTANCE.
10
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 84 of 130
Exhibit 6
Form of Notice to Disputed Claim Holders
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 85 of 130
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 NON-VOTING STATUS AND OPT OUTIN
OFTO RELEASES WITH RESPECT TO DISPUTED CLAIMS
PLEASE TAKE NOTICE THAT on [●], 2024, the United States Bankruptcy Court for
the District of Delaware (the “Court”) entered an order [Docket No. [●]]
(the “Disclosure Statement Order”): (a) authorizing the above-captioned debtors and debtors in
possession (collectively, the “Debtors”) to solicit votes on the Joint Chapter 11 Plan of Vyaire
Medical, Inc. and Its Debtor Affiliates [Docket No. [●]] (as modified, amended, or supplemented
from time to time, the “Plan”);2 (b) approving on an interim basis the Disclosure Statement for
the Joint Chapter 11 Plan of Vyaire Medical, Inc. and Its Debtor Affiliates [Docket No. [●]]
(the “Disclosure Statement”) as containing “adequate information” pursuant to section 1125 of
the Bankruptcy Code; (c) approving the solicitation materials and documents to be included in
the solicitation packages; (d) approving procedures for soliciting, receiving, and tabulating votes
on the Plan and for filing objections to the Plan; and (e) granting related relief.
PLEASE TAKE FURTHER NOTICE THAT you are receiving this notice because
you are the Holder of a Claim or Interest that is subject to a pending objection by the Debtors.
You are not entitled to vote any disputed portion of your Claim on the Plan unless one or
more of the following events have taken place before November 2, 2024 (the date that is
two (2) business days before the Voting Deadline) (each, a “Resolution Event”):
1. an order of the Court is entered allowing such Claim pursuant to section 502(b) of
the Bankruptcy Code, after notice and a hearing;
2. an order of the Court is entered temporarily allowing such Claim for voting
purposes only pursuant to Bankruptcy Rule 3018(a), after notice and a hearing;
1 The last four digits of Debtor Vyaire Medical, Inc.’s federal tax identification number are 6495. A complete list
of each of the Debtors in these chapter 11 cases and each such Debtor’s federal tax identification number may
be obtained on the website of the Debtors’ 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 not otherwise defined herein have the same meaning as set forth in the Plan.
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 86 of 130
3. a stipulation or other agreement is executed between the Holder of such Claim
and the Debtors temporarily allowing the Holder of such Claim or Interest to vote
its Claim or Interest in an agreed upon amount; or
4. the pending objection to such Claim is voluntarily withdrawn by the objecting
party.
This notice is being sent to you for informational purposes only.
PLEASE TAKE FURTHER NOTICE THAT if you would like to obtain a copy of the
Disclosure Statement, the Plan, the Plan Supplement, or related documents, you should contact
Omni Agent Solutions, Inc., the claims and noticing agent retained by the Debtors in these
chapter 11 cases (the “Claims and Noticing Agent”), by: (a) writing via first class mail, to
Vyaire Medical, Inc. et al., c/o Omni Agent Solutions, Inc., 5955 De Soto Avenue, Suite 100,
Woodland Hills, CA 91367; (b) writing via electronic mail to Vyaireinquiries@omniagnt.com;
or (c) calling the Debtors’ restructuring hotline at (866) 956-2140 (U.S. Toll-Free/Domestic) or
+1 (818) 666-3635 (International). You may also obtain copies of any pleadings filed in these
chapter 11 cases (a) for a fee via PACER at: http://www.deb.uscourts.gov; or (b) at no charge
from Omni Agent Solutions, Inc. by accessing the Debtors’ restructuring website at
https://omniagentsolutions.com/Vyaire.
PLEASE TAKE FURTHER NOTICE THAT if a Resolution Event occurs, then no
later than one (1) business day thereafter, the Claims and Noticing Agent shall distribute a
Ballot, and a pre-addressed, postage pre-paid envelope to you, which must be returned to the
Claims and Noticing Agent no later than the Voting Deadline, which is on November 4, 2024, at
4:00 p.m., prevailing Eastern Time.
PLEASE TAKE FURTHER NOTICE THAT if you have any questions about the
status of any of your Claims or Interests, you should contact the Claims and Noticing Agent in
accordance with the instructions provided above.
2
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 87 of 130
ARTICLE VIII OF THE PLAN CONTAINS RELEASE, EXCULPATION, AND INJUNCTION
PROVISIONS, AND ARTICLE VIII.C OF THE PLAN CONTAINS A THIRD-PARTY
RELEASE. THUS, YOU ARE ADVISED TO REVIEW AND CONSIDER THE PLAN
CAREFULLY BECAUSE YOUR RIGHTS MIGHT BE AFFECTED THEREUNDER.
DIRECTIONS REGARDING THE RELEASE OPT-OUTOPT-IN FORM ARE INCLUDED IN
THIS NOTICE.
AS SET FORTH IN THE PLAN, ALL HOLDERS OF CLAIMS OR INTERESTS THAT DO
NOT ELECT TO OPT OUT OFIN TO THE PROVISIONS CONTAINED IN ARTICLE VIII
OF THE PLAN USING THE ENCLOSED OPT OUTIN FORM OR BY FILING AN
OBJECTION TO THE RELEASES CONTAINED IN THE PLAN WILL BE DEEMED TO
HAVE EXPRESSLY, UNCONDITIONALLY, GENERALLY, INDIVIDUALLY, AND
COLLECTIVELY CONSENTED TO THE RELEASE AND DISCHARGE OF ALL CLAIMS
AND CAUSES OF ACTION AGAINST THE DEBTORS AND THE RELEASED PARTIES.
BY ELECTING TO OPT OUT OFIN TO THE RELEASES SET FORTH IN ARTICLE VIII.C
OF THE PLAN, YOU WILL FOREGORECEIVE THE BENEFIT OF OBTAINING THE
RELEASES SET FORTH IN ARTICLE VIII OF THE PLAN IF YOU ARE A RELEASED
PARTY IN CONNECTION THEREWITH.
3
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 88 of 130
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
Co-Counsel to the Debtors Co-Counsel to the Debtors
and Debtors in Possession and Debtors in Possession
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 89 of 130
OPTIONAL: RELEASE OPT OUTIN FORM
You are receiving this optional opt outin form (the “Opt OutIn Form”) because you are or may be
a Holder of a Claim or Interest that is not entitled to vote on the Joint Chapter 11 Plan of Vyaire
Medical, Inc. and Its Debtor Affiliates [Docket No. [●]] (as modified, amended, or supplemented
from time to time, the “Plan”). Holders of Claims or Interests are deemed to grant the
Third-Party Release set forth in the Plan unless a Holder affirmatively opts outin by November 4,
2024, at 4:00 p.m., prevailing Eastern Time (the “Opt OutIn Deadline”). Holders of Claims or
Interests may affirmatively opt outin by, no later than the Voting Deadline, (i) submitting this
form in accordance with the directions herein or (ii) filing an objection to the Third-Party
Release with the Bankruptcy Court.
If you believe you are a Holder of a Claim or Interest with respect to the Debtors and
choose to opt out ofin to the Third-Party Release set forth in Article VIII.C of the Plan,
please either (i) promptly complete, sign, and date this Opt OutIn Form and return it via first
class mail, overnight courier, or hand delivery to Omni Agent Solutions, Inc.
(the “Claims and Noticing Agent”) at the address set forth below or (ii) submit your Opt OutIn
Form through the Claims and Noticing Agent’s online Opt OutIn Portal in accordance with the
directions provided below. Parties that submit their Opt OutIn Form using the Opt OutIn Portal
should NOT also submit a paper Opt OutIn Form.
THIS OPT OUTIN FORM MUST BE ACTUALLY RECEIVED (WHETHER A
PHYSICAL COPY IS RETURNED OR THE OPT OUTIN FORM IS COMPLETED
ONLINE) BY THE CLAIMS AND NOTICING AGENT BY THE OPT OUTIN
DEADLINE. IF THE OPT OUTIN FORM IS RECEIVED AFTER THE OPT OUTIN
DEADLINE, IT WILL NOT BE COUNTED.
1
Item 1. Important information regarding releases under the Plan.
Article VIII.B of the Plan provides for a release by the Debtors (the “Debtor Release”):
Except as otherwise specifically provided herein or the Confirmation Order,
pursuant to section 1123(b) of the Bankruptcy Code, for good and valuable consideration,
the adequacy of which is hereby confirmed, upon entry of the Confirmation Order, as of
the Effective Date, each Released Party is, and is deemed, hereby fully, conclusively,
absolutely, unconditionally, irrevocably, and forever released and discharged by each and
all of the Debtors, the Wind-Down Debtors, and their Estates, in each case on behalf of
themselves and their respective successors, assigns, and representatives from any and all
Claims, obligations, rights, suits, damages, and Causes of Action, remedies, and liabilities
whatsoever, whether known or unknown, including any derivative claims asserted or
assertable on behalf of any of the Debtors, the Wind-Down Debtors, and their Estates, that
1 The Plan provisions referenced herein are for summary purposes only and do not include all provisions of the
Plan that may affect your rights. If there is any inconsistency between the provisions set forth herein and the
Plan, the Plan governs. Please read the Plan carefully before completing this Opt OutIn Form. Defined terms
used bot not defined herein shall have the meaning ascribed to such term as in the Plan.
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 90 of 130
the Debtors, the Wind-Down Debtors, or their Estates would have been legally entitled to
assert in their own right (whether individually or collectively), or on behalf of the Holder
of any Claim against, or Interest in, a Debtor or other Entity, or that any Holder of any
Claim against or Interest in a Debtor or other Entity could have asserted on behalf of the
Debtors based on or relating to, or in any manner arising from, in whole or in part, the
Debtors (including the capital structure, management, ownership, or operation thereof or
otherwise), the subject matter of, or the transactions or events giving rise to, any Claim or
Interest that is treated in the Plan, the business or contractual arrangements between any
Debtor or the Wind-Down Debtors and any Released Party, the Debtors’ in- or
out-of-court restructuring efforts, the purchase, sale, or rescission of any security of the
Debtors or the Wind-Down Debtors, intercompany transactions between or among the
Debtors or between the Debtors and their non-Debtor Affiliates, the First Lien Credit
Agreement, the Second Lien Credit Agreement, the Note Purchase Agreement, the DIP
Facility, the DIP Facility Documents, the Disclosure Statement Order, the Confirmation
Order, the Sale Order, the First Day Pleadings, the Chapter 11 Cases, the formulation,
preparation, dissemination, solicitation, negotiation, entry into, or filing of the
Restructuring Support Agreement, the Disclosure Statement, the Plan, the Plan
Supplement, the Prepetition Loan Documents, any other Definitive Document, or any
Restructuring Transaction, contract, instrument, release, or other agreement or document
created or entered into in connection with the Restructuring Support Agreement, the
Disclosure Statement, the DIP Facility, the Plan, the Plan Supplement, the Sale
Transactions, any other Definitive Document, any of the Restructuring Transactions, the
Chapter 11 Cases, the filing of the Chapter 11 Cases, the pursuit of Confirmation, the
pursuit of Consummation, the administration and implementation of the Plan, including
the issuance or distribution of securities pursuant to the Plan, or the distribution of
property under the Plan or any other related agreement, or upon any other act or
omission, transaction, agreement, event, or other occurrence taking place on or before the
Effective Date related or relating to any of the foregoing.
Notwithstanding anything to the contrary in the foregoing, the releases set forth
above do not release (i) any post-Effective Date obligations of any party or Entity under the
Plan, the Confirmation Order, any Restructuring Transaction, or any document,
instrument, or agreement (including those set forth in the Plan Supplement) executed to
implement the Plan or the Restructuring Transactions, (ii) any Causes of Action
specifically retained by the Debtors pursuant to the Schedule of Retained Causes of Action
to be attached as an exhibit to the Plan Supplement, or (iii) any Claims or Causes of Action
arising out of, or related to, any act or omission of a Released Party that is determined by a
Final Order of the Bankruptcy Court or any other court of competent jurisdiction to have
constituted actual fraud, gross negligence, or willful misconduct (it being agreed that any
Released Parties’ consideration, approval, or receipt of any distribution did not arise from
or relate to actual fraud, gross negligence, or willful misconduct).
Entry of the Confirmation Order shall constitute the Bankruptcy Court’s approval,
pursuant to Bankruptcy Rule 9019, of the releases set forth in Article VIII.B of the Plan,
which includes by reference each of the related provisions and definitions contained in the
Plan, and further, shall constitute the Bankruptcy Court’s finding that such release is: (1)
in exchange for the good and valuable consideration provided by the Released Parties,
2
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 91 of 130
including, the Released Parties’ contribution to facilitating the Restructuring Transactions
and implementing the Plan; (2) a good faith settlement and compromise of the Claims
released by the Debtor Release; (3) in the best interests of the Debtors and all Holders of
Claims and Interests; (4) fair, equitable, and reasonable; (5) given and made after due
notice and opportunity for a hearing; and (6) a bar to any of the Debtors, the Wind-Down
Debtors, or the Debtors’ Estates asserting any Claim or Cause of Action released pursuant
to the Debtor Release.
Article VIII.C of the Plan provides for a third-party release by Holders of Claims and Interests
(the “Third-Party Release”):
Except as otherwise specifically provided in the Plan or the Confirmation Order,
pursuant to section 1123(b) of the Bankruptcy Code, for good and valuable consideration,
the adequacy of which is hereby confirmed, upon entry of the Confirmation Order, as of
the Effective Date, each Releasing Party is, and is deemed to have, hereby fully,
conclusively, absolutely, unconditionally, irrevocably and forever released and discharged
each Debtor, Wind-Down Debtor, and Released Party from any and all Claims,
obligations, rights, suits, damages, and Causes of Action, remedies, and liabilities
whatsoever, whether known or unknown, including any derivative claims asserted or
assertable on behalf of the Debtors, the Wind-Down Debtors, and their Estates (as
applicable) that such Entity would have been legally entitled to assert in their own right
(whether individually or collectively), based on or relating to, or in any manner arising
from, in whole or in part, the Debtors (including the capital structure, management,
ownership, or operation thereof or otherwise), the purchase, sale, or recission of any
security of the Debtors or the Wind-Down Debtors, the subject matter of, or the
transactions or events giving rise to, any Claim or Interest that is treated in the Plan, the
business or contractual arrangements between any Debtor or the Wind-Down Debtors and
any Released Party, the Debtors’ in- or out-of-court restructuring efforts, intercompany
transactions between or among the Debtors or between the Debtors and their non-Debtor
Affiliates, the First Lien Credit Agreement, the Second Lien Credit Agreement, the Note
Purchase Agreement, the DIP Facility, the DIP Facility Documents, the Disclosure
Statement Order, the Confirmation Order, the Sale Order, the First Day Pleadings, the
Chapter 11 Cases, the formulation, preparation, dissemination, solicitation, negotiation,
entry into, or filing of the Restructuring Support Agreement, the Disclosure Statement, the
Plan, the Plan Supplement, the Prepetition Loan Documents, any other Definitive
Document, or any Restructuring Transaction, contract, instrument, release, or other
agreement or document created or entered into in connection with the Restructuring
Support Agreement, the Disclosure Statement, the DIP Facility, the Plan, the Plan
Supplement, the Sale Transactions, any other Definitive Document, any of the
Restructuring Transactions, the Chapter 11 Cases, the filing of the Chapter 11 Cases, the
pursuit of Confirmation, the pursuit of Consummation, the administration and
implementation of the Plan, including the issuance or distribution of securities pursuant to
the Plan, or the distribution of property under the Plan or any other related agreement, or
upon any other act or omission, transaction, agreement, event, or other occurrence taking
place on or before the Effective Date related or relating to any of the foregoing.
3
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 92 of 130
Notwithstanding anything to the contrary in the foregoing, the releases set forth
above do not release (i) any post-Effective Date obligations of any party or Entity under the
Plan, any Restructuring Transaction, or any document, instrument, or agreement
(including those set forth in the Plan Supplement) executed to implement the Plan, (ii) any
Causes of Action specifically retained by the Debtors pursuant to the Schedule of Retained
Causes of Action to be attached as an exhibit to the Plan Supplement, or (iii) any Claims or
Causes of Action arising out of, or related to, any act or omission of a Released Party that
is determined by a Final Order of the Bankruptcy Court or any other court of competent
jurisdiction to have constituted actual fraud, gross negligence, or willful misconduct (it
being agreed that any Released Parties’ consideration, approval, or receipt of any
distribution did not arise from or relate to actual fraud, gross negligence, or willful
misconduct).
Entry of the Confirmation Order shall constitute the Bankruptcy Court’s approval,
pursuant to Bankruptcy Rule 9019, of the releases set forth in Article VIII.C of the Plan,
which includes by reference each of the related provisions and definitions contained in the
Plan, and further, shall constitute the Bankruptcy Court’s finding that such releases are:
(1) consensual; (2) essential to the Confirmation of the Plan; (3) given in exchange for the
good and valuable consideration provided by the Released Parties; (4) a good faith
settlement and compromise of the Claims released by the releases provided in Article
VIII.C of the Plan; (5) in the best interests of the Debtors and their Estates; (6) fair,
equitable, and reasonable; (7) given and made after due notice and opportunity for a
hearing; and (8) a bar to any of the Releasing Parties asserting any Claim or Cause of
Action released pursuant to the releases provided in Article VIII.C of the Plan.
Definitions Related to the Debtor Release and the Third-Party Release:
UNDER THE PLAN, “AVOIDANCE ACTIONS” MEANS ANY AND ALL AVOIDANCE,
RECOVERY, OR SUBORDINATION ACTIONS OR REMEDIES THAT MAY BE
BROUGHT BY OR ON BEHALF OF THE DEBTORS OR THEIR ESTATES UNDER THE
BANKRUPTCY CODE OR APPLICABLE NON-BANKRUPTCY LAW, INCLUDING
ACTIONS OR REMEDIES UNDER SECTIONS 544, 547, 548, 549, 550, 551, 552, OR 553 OF
THE BANKRUPTCY CODE.
UNDER THE PLAN, “DEBTOR RELEASE” MEANS THE RELEASES GIVEN ON BEHALF
OF THE DEBTORS AND THEIR ESTATES AS SET FORTH IN ARTICLE VIII.B OF THE
PLAN.
4
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 93 of 130
UNDER THE PLAN, “RELEASED PARTIES” MEANS, EACH OF, AND IN EACH CASE,
IN THEIR RESPECTIVE CAPACITIES AS SUCH: (A) THE DEBTORS AND THE
WIND-DOWN DEBTORS, AS APPLICABLE; (B) THE PLAN ADMINISTRATOR; (C)
EACH CONSENTING STAKEHOLDER; (D) THE COMMITTEE AND ITS MEMBERS; (E)
THE PURCHASERS; (F) THE DIP LENDERS; (G) THE AGENTS; (H) ALL HOLDERS OF
CLAIMS WHO OPT IN TO GRANTING THESE RELEASES SET FORTH IN THE PLAN; (I)
ALL HOLDERS OF INTERESTS WHO OPT IN TO GRANTING THESE RELEASES SET
FORTH IN THE PLAN; (J) EACH CURRENT AND FORMER AFFILIATE OF EACH
ENTITY IN CLAUSE (A) THROUGH THE FOLLOWING CLAUSE (K); AND (K) EACH
RELATED PARTY OF EACH ENTITY IN CLAUSE (A) THROUGH THIS CLAUSE (K),
EACH IN THEIR CAPACITY AS SUCH (UNLESS ANY SUCH ENTITY OR RELATED PARTY HAS
OPTED OUT OF THE RELEASES CONTAINED IN ARTICLE VIII OF THE PLAN, IN WHICH CASE SUCH
ENTITY OR RELATED PARTY, AS APPLICABLE, SHALL NOT BE A RELEASED PARTY); PROVIDED
THAT, IN EACH CASE, AN ENTITY SHALL NOT BE A RELEASED PARTY IF IT: (X)
ELECTS TO OPT OUT OF THE RELEASES SET FORTH IN ARTICLE VIII.C OF THE PLAN; OR (Y)
TIMELY OBJECTS TO THE RELEASES SET FORTH IN ARTICLE VIII.C OF THE PLAN
AND SUCH OBJECTION IS NOT WITHDRAWN OR OTHERWISE RESOLVED BEFORE
THE CONFIRMATION ORDER IS ENTERED.
UNDER THE PLAN, “RELEASING PARTIES” MEANS, EACH OF, AND IN EACH CASE,
IN THEIR RESPECTIVE CAPACITIES AS SUCH: (A) THE DEBTORS AND THE
WIND-DOWN DEBTORS, AS APPLICABLE; (B) THE PLAN ADMINISTRATOR; (C)
EACH CONSENTING STAKEHOLDER; (D) THE COMMITTEE AND ITS MEMBERS; (E)
THE PURCHASERS; (F) THE DIP LENDERS; (G) THE AGENTS; (H) ALL HOLDERS OF
CLAIMS WHO OPT IN TO GRANTING THESE RELEASES SET FORTH IN THE PLAN; (I)
ALL HOLDERS OF INTERESTS WHO OPT IN TO GRANTING THESE RELEASES SET
FORTH IN THE PLAN; (J) EACH CURRENT AND FORMER AFFILIATE OF EACH
ENTITY IN CLAUSE (A) THROUGH THE FOLLOWING CLAUSE (K); AND (K) EACH
RELATED PARTY OF EACH ENTITY IN CLAUSE (A) THROUGH THIS CLAUSE (K),
FOR WHICH SUCH ENTITY IS LEGALLY ENTITLED TO BIND SUCH RELATED PARTY
TO THE RELEASES CONTAINED IN THE PLAN UNDER APPLICABLE LAW;
PROVIDED, HOWEVER, THAT IN EACH CASE, AN ENTITY SHALL NOT BE
RELEASING PARTY IF IT: (X) ELECTS TO OPT OUT OF THE RELEASE CONTAINED IN THE
PLAN; OR (Y) TIMELY OBJECTS TO THE RELEASES SET FORTH IN ARTICLE VIII.C OF
THE PLAN AND SUCH OBJECTION IS NOT WITHDRAWN OR OTHERWISE RESOLVED
BEFORE THE CONFIRMATION ORDER IS ENTERED.
5
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 94 of 130
IMPORTANT INFORMATION REGARDING THE RELEASES:
AS A HOLDER OF CLAIMS AGAINST OR INTERESTS IN THE DEBTORS, YOU
AREMAY BE A “RELEASING PARTY” UNDER THE PLAN AND ARE DEEMED TO
PROVIDE THE THIRD-PARTY RELEASE CONTAINED IN ARTICLE VIII.C OF THE
PLAN, AS SET FORTH ABOVE. IF YOU MAY CHECK THE BOX BELOW TO ELECT NOT
TO GRANT THE RELEASE CONTAINED IN ARTICLE VIII.GC OF THE PLAN. , YOU
WILL NOT BE CONSIDERED A “RELEASING PARTY” UNDER THE PLAN IF YOU CHECK
THE BOX BELOW AND SUBMIT THE OPT OUT BY THE VOTING DEADLINE. YOU MAY ALSO
VALIDLY OPT OUT OF THE RELEASES BY FILING. AN ENTITY SHALL NOT BE A
“RELEASING PARTY” UNDER THE PLAN IF IT FILES AN OBJECTION TO THE
RELEASES CONTAINED IN THE PLAN WITH THE BANKRUPTCY COURT PRIOR TO
THE PLAN OBJECTION DEADLINE THAT IS NOT WITHDRAWN OR OTHERWISE
RESOLVED BEFORE THE CONFIRMATION ORDER IS ENTERED. THE ELECTION TO
WITHHOLD CONSENT TO GRANT THE THIRD-PARTY RELEASE IS AT YOUR OPTION,
SUBJECT TO ANY OBLIGATION YOU MAY HAVE UNDER THE RESTRUCTURING
SUPPORT AGREEMENT. BY OPTING OUT OFIN TO THE RELEASES SET FORTH IN
ARTICLE VIII.C OF THE PLAN, YOU WILL FOREGORECEIVE THE BENEFIT OF
OBTAINING THE RELEASES SET FORTH IN ARTICLE VIII.C OF THE PLAN IF YOU
ARE A “RELEASED PARTY” IN CONNECTION THEREWITH.
YOU WILL RECEIVE THE SAME TREATMENT ON ACCOUNT OF YOUR
CLAIM(S) UNDER THE PLAN REGARDLESS OF WHETHER YOU ELECT TO NOT
GRANT THE RELEASE CONTAINED IN ARTICLE VIII.C OF THE PLAN.
OPTIONAL RELEASE ELECTION. YOU MAY ELECT TO OPT OUT OFIN TO THE
RELEASE CONTAINED IN ARTICLE VIII.C OF THE PLAN ONLY IF YOU CHECK
THE BOX BELOW:
The Undersigned Holder of the Claim or Interest elects to
OPT OUT ofIN to the Third-Party Release
Article VIII.D of the Plan provides for an exculpation of certain parties (the “Exculpation”):
Except as otherwise expressly provided in the Plan or the Confirmation Order, to
the fullest extent permitted by applicable law and solely to the extent such acts or omissions
occurred between the Petition Date and the Effective Date, no Exculpated Party shall have
or incur any liability for, and each Exculpated Party is released and exculpated from any
Cause of Action for any claim related to any act or omission in connection with, relating to,
or arising out of, the Chapter 11 Cases, the formulation, preparation, dissemination,
negotiation, or filing of the Disclosure Statement, the Sale Transactions, the Plan, the Plan
Supplement, any other Definitive Document, or any Restructuring Transaction, or any
contract, instrument, release or other agreement or document created or entered into in
connection with the Disclosure Statement, the Plan, the Plan Supplement, the Sale
Transactions, any other Definitive Document, any of the Restructuring Transactions, the
filing of the Chapter 11 Cases, the participation in the DIP Facility, the pursuit of the Sale
6
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Transactions, the pursuit of Confirmation, the pursuit of Consummation, the
administration and implementation of the Plan, including the issuance of securities
pursuant to the Plan, or the distribution of property under the Plan or any other related
agreement, except for claims related to any act or omission that is determined in a Final
Order to have constituted actual fraud, willful misconduct, or gross negligence, but in all
respects such Entities shall be entitled to reasonably rely upon the advice of counsel with
respect to their duties and responsibilities pursuant to the Plan. The Exculpated Parties
have, and upon Consummation shall be deemed to have, participated in good faith and in
compliance with the applicable laws with regard to the solicitation of votes and distribution
of consideration pursuant to the Plan and, therefore, are not, and on account of such
distributions shall not be, liable at any time for the violation of any applicable law, rule, or
regulation governing the solicitation of acceptances or rejections of the Plan or such
distributions made pursuant to the Plan.
Article VIII.E of the Plan establishes an injunction (the “Injunction”):
In accordance with Bankruptcy Code section 1141(d)(3), the Plan does not
discharge the Debtors. Bankruptcy Code section 1141(c) nevertheless provides, among
other things, that the property dealt with by the Plan is free and clear of all Claims and
Interests against the Debtors. Except as otherwise specifically provided in the Plan or for
obligations issued or required to be paid pursuant to the Plan or the Confirmation Order,
all Entities who have held, hold, or may hold Claims or Interests that have been released or
are subject to exculpation pursuant to the Plan are permanently enjoined, from and after
the Effective Date, from taking any of the following actions against, as applicable, the
Debtors, the Wind-Down Debtors, the Exculpated Parties, or the Released Parties, and any
successors, assigns or representatives of such Persons or Entities: (a) commencing or
continuing in any manner any action or other proceeding of any kind on account of or in
connection with or with respect to any such Claims or Interests; (b) enforcing, attaching,
collecting, or recovering by any manner or means any judgment, award, decree, or order
against such Entities on account of or in connection with or with respect to any such
Claims or Interests; (c) creating, perfecting, or enforcing any encumbrance of any kind
against such Entities or the property or the estates of such Entities on account of or in
connection with or with respect to any such Claims or Interests; (d) asserting any right of
setoff, subrogation, or recoupment of any kind against any obligation due from such
Entities or against the property of such Entities on account of or in connection with or with
respect to any such Claims or Interests unless such Holder has Filed a motion requesting
the right to perform such setoff on or before the Effective Date; and (e) commencing or
continuing in any manner any action or other proceeding of any kind on account of or in
connection with or with respect to any such Claims or Interests released or settled
pursuant to the Plan. Notwithstanding anything to the contrary in the foregoing, the
injunction set forth above does not enjoin the enforcement of any obligations arising on or
after the Effective Date of any Person or Entity under the Plan, any post-Effective Date
transaction contemplated by the Restructuring Transactions, or any document,
instrument, or agreement (including those set forth in the Plan Supplement) executed to
implement the Plan.
7
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Upon entry of the Confirmation Order, all Holders of Claims and Interests and
their respective current and former employees, agents, officers, directors, managers,
principals, and direct and indirect Affiliates, in their capacities as such, shall be enjoined
from taking any actions to interfere with the implementation or Consummation of the
Plan. Each Holder of an Allowed Claim or Allowed Interest, as applicable, by accepting,
or being eligible to accept, distributions under or Reinstatement of such Claim or Interest,
as applicable, pursuant to the Plan, shall be deemed to have consented to the injunction
provisions set forth in Article VIII.E of the Plan.
No Person or Entity may commence or pursue a Claim or Cause of Action of any kind against the
Debtors, the Wind-Down Debtors, the Exculpated Parties, or the Released Parties that relates to or is
reasonably likely to relate to any act or omission in connection with, relating to, or arising out of a Claim or
Cause of Action subject to Article VIII.E of the Plan, without the Bankruptcy Court (i) first determining,
after notice and a hearing, that such Claim or Cause of Action represents a colorable Claim of any kind, and
(ii) specifically authorizing such Person or Entity to bring such Claim or Cause of Action against any such
Debtor, Wind-Down Debtor, Exculpated Party, or Released Party.
Item 2. Certifications.
By signing this Opt OutIn Form, the undersigned certifies to the Bankruptcy Court and the
Debtors that:
(a) as of the Voting Record Date, either: (i) the Entity is the Holder of a Claim or
Interest; or (ii) the Entity is an authorized signatory for the Entity that is a Holder of a
Claim or Interest;
(b) the Entity (or in the case of an authorized signatory, the Holder) has received a copy
of the Notice of Non-Voting Status toand Opt In to Releases for Holders of
Unimpaired Claims or Interests Conclusively Deemed to Accept the Plan and that
this Opt OutIn Form is made pursuant to the terms and conditions set forth therein;
(c) the Entity has submitted the same respective election concerning the releases with
respect to all Claims or Interests in a single Class; and
(d) no other Opt OutIn Form has been submitted or, if any other Opt OutIn Forms have
been submitted with respect to such Claims or Interests, then any such earlier Opt
OutIn Forms are hereby revoked.
8
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 97 of 130
Name of Holder:
(print or type)
Signature:
Name of Signatory:
(if other than Holder)
Title:
Address:
Telephone Number:
Email:
Date Completed:
IF YOU HAVE MADE THE OPTIONAL OPT OUTIN ELECTION, PLEASE
COMPLETE, SIGN, AND DATE THIS OPT OUTIN FORM AND RETURN IT
PROMPTLY BY ONLY ONE OF THE METHODS BELOW.
By regular mail, overnight mail, or hand delivery at:
Vyaire Medical, Inc. Ballot Processing
c/o Omni Agent Solutions, Inc.
5955 De Soto Avenue, Suite 100
Woodland Hills, CA 91367
OR
By electronic, online submission:
The Claims and Noticing Agent will accept Opt OutIn Forms if properly
completed through the Opt OutIn Portal. To submit your Opt OutIn Form, please
visit https://omniagentsolutions.com/Vyaire (the “Opt OutIn Portal”) and follow
the instructions to submit your Opt OutIn Form.
9
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 98 of 130
The Claims and Noticing Agent’s Opt OutIn Portal is the sole manner in which Opt OutIn
Forms will be accepted via electronic or online transmission. Opt OutIn Forms submitted
by facsimile, email, or other means of electronic transmission will not be counted.
Parties that submit their Opt OutIn Form using the Opt OutIn Portal should NOT also submit a
paper Opt OutIn Form.
THE VOTING DEADLINE IS 4:00 P.M., PREVAILING EASTERN TIME, ON
NOVEMBER 4, 2024.
THE CLAIMS AND NOTICING AGENT MUST ACTUALLY RECEIVE YOUR OPT OUTIN
ELECTION ON OR BEFORE THE VOTING DEADLINE. IF YOU HAVE ANY
QUESTIONS REGARDING THIS OPT OUTIN FORM, PLEASE CONTACT:
VYAIREINQUIRIES@OMNIAGNT.COM FOR FURTHER ASSISTANCE.
10
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Exhibit 7
Form of Cover Letter
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 100 of 130
[Different first page link-to-previous setting changed from off in original to on in modified.].
[INSERT COMPANY LOGO]
[●], 2024
Via [First Class Mail / Email]
RE: In re Vyaire Medical, Inc., et al. Chapter 11 Case No. 24-11217 (BLS), Summary of Chapter 11
Plan and Information Regarding Certain Key Dates.
TO ALL HOLDERS OF CLAIMS ENTITLED TO VOTE ON THE PLAN:
Vyaire Medical, Inc. and certain of its affiliated debtors and debtors in possession in the
above captioned cases, (collectively, the “Debtors”)1 each filed a voluntary petition for relief
under chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”) in the United
States Bankruptcy Court for the District of Delaware (the “Court”) on June 9, 2024.
You have received this letter and the enclosed materials because you are entitled to vote
on the Joint Chapter 11 Plan of Vyaire Medical, Inc. and Its Debtor Affiliates [Docket No. [●]]
(as modified, amended, or supplemented from time to time, the “Plan”).2 On [●], 2024, the
Court entered an order [Docket No. [●]] (the “Disclosure Statement Order”): (a) authorizing the
Debtors to solicit acceptances for the Plan; (b) approving the Disclosure Statement for the Joint
Chapter 11 Plan of Vyaire Medical, Inc. and Its Debtor Affiliates [Docket No. [●]]
(the “Disclosure Statement”) as containing “adequate information” pursuant to section 1125 of
the Bankruptcy Code; (c) approving the solicitation materials and documents to be included in
the solicitation packages; (d) approving procedures for soliciting, receiving, and tabulating votes
on the Plan and for filing objections to the Plan; and (e) granting related relief.
YOU ARE RECEIVING THIS LETTER BECAUSE YOU ARE ENTITLED TO VOTE ON
THE PLAN. THEREFORE, YOU SHOULD READ THIS LETTER CAREFULLY AND
DISCUSS IT WITH YOUR ATTORNEY. IF YOU DO NOT HAVE AN ATTORNEY, YOU
MAY WISH TO CONSULT ONE.
In addition to this cover letter, the enclosed materials comprise your Solicitation Package, and
were approved by the Court for distribution to Holders of Claims in connection with the
solicitation of votes to accept or reject the Plan. The Disclosure Statement, as approved on an
interim basis by the Bankruptcy Court (and all exhibits thereto, including the Plan) 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 not otherwise defined herein have the same meanings as set forth in the Plan.
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Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 101 of 130
[Link-to-previous setting changed from off in original to on in modified.].
the Disclosure Statement Order are only available free of charge on the Debtors’ case
website at https://omniagentsolutions.com/Vyaire. If you would like to receive paper copies
of any or all of these documents, please reach out to the Claims and Noticing Agent (as
defined below) using their below contact information. The Solicitation Package consists of
the following:
a. a copy of the Solicitation and Voting Procedures (attached to the
Disclosure Statement Order as Exhibit 2);
b. a Ballot, together with detailed voting instructions and a pre-addressed,
postage prepaid return envelope;
c. this letter;
d. the Disclosure Statement, as approved on an interim basis by the
Bankruptcy Court (and exhibits thereto, including the Plan);
e. the Disclosure Statement Order (excluding the exhibits thereto, except the
Solicitation and Voting Procedures);
f. the Combined Hearing Notice;
g. a pre-addressed, postage prepaid reply envelope, if applicable; and
h. any additional documents that the Court has ordered to be made available.
Vyaire Medical, Inc. (on behalf of itself and each of the other Debtors) has approved the
filing of the Plan and the solicitation of votes to accept or reject the Plan. The Debtors believe
that the Plan is in the best interests of their estates and all other parties in interest. Moreover, the
Debtors believe that any alternative other than Confirmation of the Plan could result in
significant delays and increased administrative expenses, which, in turn, likely would result in
smaller distributions (or no distributions) or recoveries on account of Claims asserted in these
chapter 11 cases.
THE DEBTORS STRONGLY URGE YOU TO PROPERLY AND TIMELY
SUBMIT YOUR BALLOT CASTING A VOTE TO ACCEPT THE PLAN. THE
VOTING DEADLINE IS 4:00 P.M., PREVAILING EASTERN TIME, ON NOVEMBER
4, 2024.
The materials in the Solicitation Package are intended to be self-explanatory. If you
should have any questions, however, please feel free to contact Omni Agent Solutions, Inc., the
notice, claims, and solicitation agent retained by the Debtors in these chapter 11 cases
(the “Claims and Noticing Agent”), by calling the Debtors’ Claims and Noticing Agent at
(866) 956-2140 (U.S. Toll-Free/Domestic) or +1 (818) 666-3635 (International). The Claims
and Noticing Agent cannot and will not provide legal advice. If you need legal advice, you
should consult an attorney.
[Link-to-previous setting changed from off in original to on in modified.].
2
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 102 of 130
[Link-to-previous setting changed from off in original to on in modified.].
Copies of certain orders, notices, and pleadings, as well as other information regarding
these chapter 11 cases, are available for inspection free of charge on the Debtors’ website at
https://omniagentsolutions.com/Vyaire. You may also obtain copies of any pleadings filed in
these chapter 11 cases for a fee via PACER at: https://ecf.deb.uscourts.gov.
Sincerely,
[●]
[Link-to-previous setting changed from off in original to on in modified.].
3
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 103 of 130
I.
Exhibit 8
Combined Hearing Notice
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 104 of 130
I.
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 HEARING TO CONSIDER
(I) THE ADEQUACY OF THE DISCLOSURE STATEMENT AND
(II) CONFIRMATION OF THE JOINT CHAPTER 11 PLAN FILED BY THE DEBTORS
PLEASE TAKE NOTICE THAT on [●], 2024, the United States Bankruptcy
Court for the District of Delaware (the “Court”) entered an order [Docket No. [●]]
(the “Disclosure Statement Order”): (a) authorizing the above-captioned debtors and debtors in
possession (collectively, the “Debtors”) to solicit votes on the Joint Chapter 11 Plan of Vyaire
Medical, Inc. and Its Debtor Affiliates [Docket No. [●]] (as modified, amended, or supplemented
from time to time, the “Plan”);2 (b) approving on an interim basis the Disclosure Statement for
the Joint Chapter 11 Plan of Vyaire Medical, Inc. and Its Debtor Affiliates [Docket No. [●]]
(the “Disclosure Statement”) as containing “adequate information” pursuant to section 1125 of
the Bankruptcy Code; (c) approving the solicitation materials and documents to be included in
the solicitation packages; (d) approving procedures for soliciting, receiving, and tabulating votes
on the Plan and for filing objections to the Plan; and (e) granting related relief.
PLEASE TAKE FURTHER NOTICE THAT the hearing at which the Court will
consider the Confirmation of the Plan (the “Confirmation Hearing”) will commence on
November 14, 2024, at 1:30 p.m., prevailing Eastern Time, before The Honorable Brendan L.
Shannon, in the United States Bankruptcy Court for the District of Delaware, located at 824
North Market St., 6th Floor, Courtroom No. 1, Wilmington, DE 19801.
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 not otherwise defined herein have the same meaning as set forth in the Plan.
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 105 of 130
I.
PLEASE BE ADVISED: THE COMBINED HEARING MAY BE CONTINUED FROM
TIME TO TIME BY THE COURT OR THE DEBTORS WITHOUT FURTHER NOTICE
OTHER THAN BY SUCH ADJOURNMENT BEING ANNOUNCED IN OPEN COURT OR
BY A NOTICE OF ADJOURNMENT FILED WITH THE COURT AND SERVED ON ALL
PARTIES ENTITLED TO NOTICE.
ANY SUCH NOTICES OF ADJOURNMENT ARE AVAILABLE FREE OF CHARGE ON
THE DEBTORS’ CASE WEBSITE AT HTTPS://OMNIAGENTSOLUTIONS.COM/VYAIRE.
CRITICAL INFORMATION REGARDING VOTING ON THE PLAN
Voting Record Date. The voting record date is October 2, 2024, which was the date for
determining which Holders of Claims in Classes 4 and 5 as applicable, are entitled to vote on the
Plan.
Voting Deadline. The deadline for voting on the Plan is November 4, 2024, at
4:00 p.m., prevailing Eastern Time (the “Voting Deadline”). If you received a Solicitation
Package, including a Ballot and intend to vote on the Plan you must: (a) follow the instructions
carefully; (b) complete all of the required information on the ballot; and (c) execute and return
your completed Ballot according to and as set forth in detail in the voting instructions so that it is
actually received by the Debtors’ claims and noticing agent, Omni Agent Solutions, Inc.
(the “Claims and Noticing Agent”) on or before the Voting Deadline. A failure to follow such
instructions may disqualify your vote.
CRITICAL INFORMATION REGARDING OBJECTING TO THE PLAN
ARTICLE VIII OF THE PLAN CONTAINS RELEASE, EXCULPATION, AND INJUNCTION
PROVISIONS, AND ARTICLE VIII.C OF THE PLAN CONTAINS A THIRD-PARTY
RELEASE. THUS, YOU ARE ADVISED TO REVIEW AND CONSIDER THE PLAN
CAREFULLY BECAUSE YOUR RIGHTS MIGHT BE AFFECTED THEREUNDER.
Plan Objection Deadline. The deadline for filing objections to the Plan, as applicable,
is November 4, 2024, at 4:00 p.m., prevailing Eastern Time (the “Plan Objection Deadline”).
All objections to the relief sought at the Confirmation Hearing must: (a) be in writing;
(b) conform to the Bankruptcy Code, Bankruptcy Rules, the Local Rules, and any orders of the
Court; (c) state, with particularity, the basis and nature of any objection to the Plan and, if
practicable, a proposed modification to the Plan that would resolve such objection; and (d) be
filed with the Court (contemporaneously with a proof of service) and served upon the counsel to
the Debtors, the
U.S. Trustee, counsel to the DIP Lenders, counsel to the Consenting First Lien Lenders, counsel
to the Consenting Second Lien Lenders, and counsel to the Committee so as to be actually
received on or before the Plan Objection Deadline.
2
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I.
Please be advised that Article VIII of the Plan contains the following release, exculpation,
and injunction provisions:3
Article VIII.B of the Plan provides for a release by the Debtors (the “Debtor Release”):
Except as otherwise specifically provided herein or the Confirmation Order,
pursuant to section 1123(b) of the Bankruptcy Code, for good and valuable consideration,
the adequacy of which is hereby confirmed, upon entry of the Confirmation Order, as of
the Effective Date, each Released Party is, and is deemed, hereby fully, conclusively,
absolutely, unconditionally, irrevocably, and forever released and discharged by each and
all of the Debtors, the Wind-Down Debtors, and their Estates, in each case on behalf of
themselves and their respective successors, assigns, and representatives from any and all
Claims, obligations, rights, suits, damages, and Causes of Action, remedies, and liabilities
whatsoever, whether known or unknown, including any derivative claims asserted or
assertable on behalf of any of the Debtors, the Wind-Down Debtors, and their Estates, that
the Debtors, the Wind-Down Debtors, or their Estates would have been legally entitled to
assert in their own right (whether individually or collectively), or on behalf of the Holder
of any Claim against, or Interest in, a Debtor or other Entity, or that any Holder of any
Claim against or Interest in a Debtor or other Entity could have asserted on behalf of the
Debtors based on or relating to, or in any manner arising from, in whole or in part, the
Debtors (including the capital structure, management, ownership, or operation thereof or
otherwise), the subject matter of, or the transactions or events giving rise to, any Claim or
Interest that is treated in the Plan, the business or contractual arrangements between any
Debtor or the Wind-Down Debtors and any Released Party, the Debtors’ in- or
out-of-court restructuring efforts, the purchase, sale, or rescission of any security of the
Debtors or the Wind-Down Debtors, intercompany transactions between or among the
Debtors or between the Debtors and their non-Debtor Affiliates, the First Lien Credit
Agreement, the Second Lien Credit Agreement, the Note Purchase Agreement, the DIP
Facility, the DIP Facility Documents, the Disclosure Statement Order, the Confirmation
Order, the Sale Order, the First Day Pleadings, the Chapter 11 Cases, the formulation,
preparation, dissemination, solicitation, negotiation, entry into, or filing of the
Restructuring Support Agreement, the Disclosure Statement, the Plan, the Plan
Supplement, the Prepetition Loan Documents, any other Definitive Document, or any
Restructuring Transaction, contract, instrument, release, or other agreement or document
created or entered into in connection with the Restructuring Support Agreement, the
Disclosure Statement, the DIP Facility, the Plan, the Plan Supplement, the Sale
Transactions, any other Definitive Document, any of the Restructuring Transactions, the
Chapter 11 Cases, the filing of the Chapter 11 Cases, the pursuit of Confirmation, the
pursuit of Consummation, the administration and implementation of the Plan, including
the issuance or distribution of securities pursuant to the Plan, or the distribution of
property under the Plan or any other related agreement, or upon any other act or
3 The Plan provisions referenced herein are for summary purposes only and do not include all provisions of
the Plan that may affect your rights. If there is any inconsistency between the provisions set forth herein and the
Plan, the Plan governs.
3
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 107 of 130
I.
omission, transaction, agreement, event, or other occurrence taking place on or before the
Effective Date related or relating to any of the foregoing.
Notwithstanding anything to the contrary in the foregoing, the releases set forth
above do not release (i) any post-Effective Date obligations of any party or Entity under the
Plan, the Confirmation Order, any Restructuring Transaction, or any document,
instrument, or agreement (including those set forth in the Plan Supplement) executed to
implement the Plan or the Restructuring Transactions, (ii) any Causes of Action
specifically retained by the Debtors pursuant to the Schedule of Retained Causes of Action
to be attached as an exhibit to the Plan Supplement, or (iii) any Claims or Causes of Action
arising out of, or related to, any act or omission of a Released Party that is determined by a
Final Order of the Bankruptcy Court or any other court of competent jurisdiction to have
constituted actual fraud, gross negligence, or willful misconduct (it being agreed that any
Released Parties’ consideration, approval, or receipt of any distribution did not arise from
or relate to actual fraud, gross negligence, or willful misconduct).
Entry of the Confirmation Order shall constitute the Bankruptcy Court’s approval,
pursuant to Bankruptcy Rule 9019, of the releases set forth in Article VIII.B of the Plan,
which includes by reference each of the related provisions and definitions contained in the
Plan, and further, shall constitute the Bankruptcy Court’s finding that such release is: (1)
in exchange for the good and valuable consideration provided by the Released Parties,
including, the Released Parties’ contribution to facilitating the Restructuring Transactions
and implementing the Plan; (2) a good faith settlement and compromise of the Claims
released by the Debtor Release; (3) in the best interests of the Debtors and all Holders of
Claims and Interests; (4) fair, equitable, and reasonable; (5) given and made after due
notice and opportunity for a hearing; and (6) a bar to any of the Debtors, the Wind-Down
Debtors, or the Debtors’ Estates asserting any Claim or Cause of Action released pursuant
to the Debtor Release.
Article VIII.C of the Plan provides for a third-party release by Holders of Claims and Interests
(the “Third-Party Release”):
Except as otherwise specifically provided in the Plan or the Confirmation Order,
pursuant to section 1123(b) of the Bankruptcy Code, for good and valuable consideration,
the adequacy of which is hereby confirmed, upon entry of the Confirmation Order, as of
the Effective Date, each Releasing Party is, and is deemed to have, hereby fully,
conclusively, absolutely, unconditionally, irrevocably and forever released and discharged
each Debtor, Wind-Down Debtor, and Released Party from any and all Claims,
obligations, rights, suits, damages, and Causes of Action, remedies, and liabilities
whatsoever, whether known or unknown, including any derivative claims asserted or
assertable on behalf of the Debtors, the Wind-Down Debtors, and their Estates (as
applicable) that such Entity would have been legally entitled to assert in their own right
(whether individually or collectively), based on or relating to, or in any manner arising
from, in whole or in part, the Debtors (including the capital structure, management,
ownership, or operation thereof or otherwise), the purchase, sale, or recission of any
security of the Debtors or the Wind-Down Debtors, the subject matter of, or the
transactions or events giving rise to, any Claim or Interest that is treated in the Plan, the
4
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I.
business or contractual arrangements between any Debtor or the Wind-Down Debtors and
any Released Party, the Debtors’ in- or out-of-court restructuring efforts, intercompany
transactions between or among the Debtors or between the Debtors and their non-Debtor
Affiliates, the First Lien Credit Agreement, the Second Lien Credit Agreement, the Note
Purchase Agreement, the DIP Facility, the DIP Facility Documents, the Disclosure
Statement Order, the Confirmation Order, the Sale Order, the First Day Pleadings, the
Chapter 11 Cases, the formulation, preparation, dissemination, solicitation, negotiation,
entry into, or filing of the Restructuring Support Agreement, the Disclosure Statement, the
Plan, the Plan Supplement, the Prepetition Loan Documents, any other Definitive
Document, or any Restructuring Transaction, contract, instrument, release, or other
agreement or document created or entered into in connection with the Restructuring
Support Agreement, the Disclosure Statement, the DIP Facility, the Plan, the Plan
Supplement, the Sale Transactions, any other Definitive Document, any of the
Restructuring Transactions, the Chapter 11 Cases, the filing of the Chapter 11 Cases, the
pursuit of Confirmation, the pursuit of Consummation, the administration and
implementation of the Plan, including the issuance or distribution of securities pursuant to
the Plan, or the distribution of property under the Plan or any other related agreement, or
upon any other act or omission, transaction, agreement, event, or other occurrence taking
place on or before the Effective Date related or relating to any of the foregoing.
Notwithstanding anything to the contrary in the foregoing, the releases set forth
above do not release (i) any post-Effective Date obligations of any party or Entity under the
Plan, any Restructuring Transaction, or any document, instrument, or agreement
(including those set forth in the Plan Supplement) executed to implement the Plan, (ii) any
Causes of Action specifically retained by the Debtors pursuant to the Schedule of Retained
Causes of Action to be attached as an exhibit to the Plan Supplement, or (iii) any Claims or
Causes of Action arising out of, or related to, any act or omission of a Released Party that
is determined by a Final Order of the Bankruptcy Court or any other court of competent
jurisdiction to have constituted actual fraud, gross negligence, or willful misconduct (it
being agreed that any Released Parties’ consideration, approval, or receipt of any
distribution did not arise from or relate to actual fraud, gross negligence, or willful
misconduct).
Entry of the Confirmation Order shall constitute the Bankruptcy Court’s approval,
pursuant to Bankruptcy Rule 9019, of the releases set forth in Article VIII.C of the Plan,
which includes by reference each of the related provisions and definitions contained in the
Plan, and further, shall constitute the Bankruptcy Court’s finding that such releases are:
(1) consensual; (2) essential to the Confirmation of the Plan; (3) given in exchange for the
good and valuable consideration provided by the Released Parties; (4) a good faith
settlement and compromise of the Claims released by the releases provided in Article
VIII.C of the Plan; (5) in the best interests of the Debtors and their Estates; (6) fair,
equitable, and reasonable; (7) given and made after due notice and opportunity for a
hearing; and (8) a bar to any of the Releasing Parties asserting any Claim or Cause of
Action released pursuant to the releases provided in Article VIII.C of the Plan.
5
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I.
Definitions Related to the Debtor Release and the Third-Party Release:
UNDER THE PLAN, “AVOIDANCE ACTIONS” MEANS ANY AND ALL AVOIDANCE,
RECOVERY, OR SUBORDINATION ACTIONS OR REMEDIES THAT MAY BE
BROUGHT BY OR ON BEHALF OF THE DEBTORS OR THEIR ESTATES UNDER THE
BANKRUPTCY CODE OR APPLICABLE NON-BANKRUPTCY LAW, INCLUDING
ACTIONS OR REMEDIES UNDER SECTIONS 544, 547, 548, 549, 550, 551, 552, OR 553 OF
THE BANKRUPTCY CODE.
UNDER THE PLAN, “DEBTOR RELEASE” MEANS THE RELEASES GIVEN ON BEHALF
OF THE DEBTORS AND THEIR ESTATES AS SET FORTH IN ARTICLE VIII.B OF THE
PLAN.
UNDER THE PLAN, “RELEASED PARTIES” MEANS, EACH OF, AND IN EACH CASE,
IN THEIR RESPECTIVE CAPACITIES AS SUCH: (A) THE DEBTORS AND THE
WIND-DOWN DEBTORS, AS APPLICABLE; (B) THE PLAN ADMINISTRATOR; (C)
EACH CONSENTING STAKEHOLDER; (D) THE COMMITTEE AND ITS MEMBERS; (E)
THE PURCHASERS; (F) THE DIP LENDERS; (G) THE AGENTS; (H) ALL HOLDERS OF
CLAIMS WHO OPT IN TO GRANTING THESE RELEASES SET FORTH IN THE PLAN; (I)
ALL HOLDERS OF INTERESTS WHO OPT IN TO GRANTING THESE RELEASES SET
FORTH IN THE PLAN; (J) EACH CURRENT AND FORMER AFFILIATE OF EACH
ENTITY IN CLAUSE (A) THROUGH THE FOLLOWING CLAUSE (K); AND (K) EACH
RELATED PARTY OF EACH ENTITY IN CLAUSE (A) THROUGH THIS CLAUSE (K),
EACH IN THEIR CAPACITY AS SUCH (UNLESS ANY SUCH ENTITY OR RELATED
PARTY HAS OPTED OUT OF THE RELEASES CONTAINED IN ARTICLE VIII OF THE
PLAN, IN WHICH CASE SUCH ENTITY OR RELATED PARTY, AS APPLICABLE,
SHALL NOT BE A RELEASED PARTY); PROVIDED THAT, IN EACH CASE, AN ENTITY
SHALL NOT BE A RELEASED PARTY IF IT: (X) ELECTS TO OPT OUT OF THE
RELEASES SET FORTH IN ARTICLE VIII.C OF THE PLAN; OR (Y) TIMELY OBJECTS
TO THE RELEASES SET FORTH IN ARTICLE VIII.C OF THE PLAN AND SUCH
OBJECTION IS NOT WITHDRAWN OR OTHERWISE RESOLVED BEFORE THE
CONFIRMATION ORDER IS ENTERED.
6
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I.
UNDER THE PLAN, “RELEASING PARTIES” MEANS, EACH OF, AND IN EACH CASE,
IN THEIR RESPECTIVE CAPACITIES AS SUCH: (A) THE DEBTORS AND THE
WIND-DOWN DEBTORS, AS APPLICABLE; (B) THE PLAN ADMINISTRATOR; (C)
EACH CONSENTING STAKEHOLDER; (D) THE COMMITTEE AND ITS MEMBERS; (E)
THE PURCHASERS; (F) THE DIP LENDERS; (G) THE AGENTS; (H) ALL HOLDERS OF
CLAIMS WHO OPT IN TO GRANTING THESE RELEASES SET FORTH IN THE PLAN; (I)
ALL HOLDERS OF INTERESTS WHO OPT IN TO GRANTING THESE RELEASES SET
FORTH IN THE PLAN; (J) EACH CURRENT AND FORMER AFFILIATE OF EACH
ENTITY IN CLAUSE (A) THROUGH THE FOLLOWING CLAUSE (K); AND (K) EACH
RELATED PARTY OF EACH ENTITY IN CLAUSE (A) THROUGH THIS CLAUSE (K),
FOR WHICH SUCH ENTITY IS LEGALLY ENTITLED TO BIND SUCH RELATED PARTY
TO THE RELEASES CONTAINED IN THE PLAN UNDER APPLICABLE LAW;
PROVIDED, HOWEVER, THAT IN EACH CASE, AN ENTITY SHALL NOT BE
RELEASING PARTY IF IT: (X) ELECTS TO OPT OUT OF THE RELEASE CONTAINED
IN THE PLAN; OR (Y) TIMELY OBJECTS TO THE RELEASES SET FORTH IN ARTICLE
VIII.C OF THE PLAN AND SUCH OBJECTION IS NOT WITHDRAWN OR OTHERWISE
RESOLVED BEFORE THE CONFIRMATION ORDER IS ENTERED.
Article VIII.D of the Plan provides for an exculpation of certain parties (the “Exculpation”):
Except as otherwise expressly provided in the Plan or the Confirmation Order, to
the fullest extent permitted by applicable law and solely to the extent such acts or omissions
occurred between the Petition Date and the Effective Date, no Exculpated Party shall have
or incur any liability for, and each Exculpated Party is released and exculpated from any
Cause of Action for any claim related to any act or omission in connection with, relating to,
or arising out of, the Chapter 11 Cases, the formulation, preparation, dissemination,
negotiation, or filing of the Disclosure Statement, the Sale Transactions, the Plan, the Plan
Supplement, any other Definitive Document, or any Restructuring Transaction, or any
contract, instrument, release or other agreement or document created or entered into in
connection with the Disclosure Statement, the Plan, the Plan Supplement, the Sale
Transactions, any other Definitive Document, any of the Restructuring Transactions, the
filing of the Chapter 11 Cases, the participation in the DIP Facility, the pursuit of the Sale
Transactions, the pursuit of Confirmation, the pursuit of Consummation, the
administration and implementation of the Plan, including the issuance of securities
pursuant to the Plan, or the distribution of property under the Plan or any other related
agreement, except for claims related to any act or omission that is determined in a Final
Order to have constituted actual fraud, willful misconduct, or gross negligence, but in all
respects such Entities shall be entitled to reasonably rely upon the advice of counsel with
respect to their duties and responsibilities pursuant to the Plan. The Exculpated Parties
have, and upon Consummation shall be deemed to have, participated in good faith and in
compliance with the applicable laws with regard to the solicitation of votes and distribution
of consideration pursuant to the Plan and, therefore, are not, and on account of such
distributions shall not be, liable at any time for the violation of any applicable law, rule, or
regulation governing the solicitation of acceptances or rejections of the Plan or such
distributions made pursuant to the Plan.
Article VIII.E of the Plan establishes an injunction (the “Injunction”):
7
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I.
In accordance with Bankruptcy Code section 1141(d)(3), the Plan does not
discharge the Debtors. Bankruptcy Code section 1141(c) nevertheless provides, among
other things, that the property dealt with by the Plan is free and clear of all Claims and
Interests against the Debtors. Except as otherwise specifically provided in the Plan or for
obligations issued or required to be paid pursuant to the Plan or the Confirmation Order,
all Entities who have held, hold, or may hold Claims or Interests that have been released or
are subject to exculpation pursuant to the Plan are permanently enjoined, from and after
the Effective Date, from taking any of the following actions against, as applicable, the
Debtors, the Wind-Down Debtors, the Exculpated Parties, or the Released Parties, and any
successors, assigns or representatives of such Persons or Entities: (a) commencing or
continuing in any manner any action or other proceeding of any kind on account of or in
connection with or with respect to any such Claims or Interests; (b) enforcing, attaching,
collecting, or recovering by any manner or means any judgment, award, decree, or order
against such Entities on account of or in connection with or with respect to any such
Claims or Interests; (c) creating, perfecting, or enforcing any encumbrance of any kind
against such Entities or the property or the estates of such Entities on account of or in
connection with or with respect to any such Claims or Interests; (d) asserting any right of
setoff, subrogation, or recoupment of any kind against any obligation due from such
Entities or against the property of such Entities on account of or in connection with or with
respect to any such Claims or Interests unless such Holder has Filed a motion requesting
the right to perform such setoff on or before the Effective Date; and (e) commencing or
continuing in any manner any action or other proceeding of any kind on account of or in
connection with or with respect to any such Claims or Interests released or settled
pursuant to the Plan. Notwithstanding anything to the contrary in the foregoing, the
injunction set forth above does not enjoin the enforcement of any obligations arising on or
after the Effective Date of any Person or Entity under the Plan, any post-Effective Date
transaction contemplated by the Restructuring Transactions, or any document,
instrument, or agreement (including those set forth in the Plan Supplement) executed to
implement the Plan.
Upon entry of the Confirmation Order, all Holders of Claims and Interests and
their respective current and former employees, agents, officers, directors, managers,
principals, and direct and indirect Affiliates, in their capacities as such, shall be enjoined
from taking any actions to interfere with the implementation or Consummation of the
Plan. Each Holder of an Allowed Claim or Allowed Interest, as applicable, by accepting,
or being eligible to accept, distributions under or Reinstatement of such Claim or Interest,
as applicable, pursuant to the Plan, shall be deemed to have consented to the injunction
provisions set forth in Article VIII.E of the Plan.
No Person or Entity may commence or pursue a Claim or Cause of Action of any
kind against the Debtors, the Wind-Down Debtors, the Exculpated Parties, or the Released
Parties that relates to or is reasonably likely to relate to any act or omission in connection
with, relating to, or arising out of a Claim or Cause of Action subject to Article VIII.E of
the Plan, without the Bankruptcy Court (i) first determining, after notice and a hearing,
that such Claim or Cause of Action represents a colorable Claim of any kind, and
8
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 112 of 130
I.
(ii) specifically authorizing such Person or Entity to bring such Claim or Cause of Action
against any such Debtor, Wind-Down Debtor, Exculpated Party, or Released Party.
ADDITIONAL INFORMATION
Obtaining Solicitation Materials. The materials in the Solicitation Package are
intended to be self-explanatory. If you should have any questions or if you would like to obtain
additional solicitation materials (or paper copies of solicitation materials), please feel free to
contact the Debtors’ Claims and Noticing Agent, by: (a) writing via first class mail, to Vyaire
Medical, Inc. et al., c/o Omni Agent Solutions, Inc., 5955 De Soto Avenue, Suite 100, Woodland
Hills, CA 91367; (b) writing via electronic mail to Vyaireinquiries@omniagnt.com; or (c) calling
the Debtors’ restructuring hotline at (866) 956-2140 (U.S. Toll-Free/Domestic) or +1 (818)
666-3635 (International). You may also obtain copies of any pleadings filed in these chapter 11
cases (a) for a fee via PACER at: http://www.deb.uscourts.gov; or (b) at no charge from Omni
Agent Solutions, Inc. by accessing the Debtors’ restructuring website at
https://omniagentsolutions.com/Vyaire.
Please be advised that the Claims and Noticing Agent is authorized to answer questions
about, and provide additional copies of, solicitation materials, but may not advise you as to
whether you should vote to accept or reject the Plan.
The Plan Supplement. The Debtors will file documents constituting the Plan
Supplement (as defined in the Plan) on or prior to October 28, 2024, and will serve notice on all
Holders of Claims and Interests entitled to vote on the Plan, which will: (a) inform parties that
the Debtors filed the Plan Supplement; (b) list the information contained in the Plan Supplement;
and (c) explain how parties may obtain copies of the Plan Supplement.
BINDING NATURE OF THE PLAN:
IF CONFIRMED, THE PLAN SHALL BIND ALL HOLDERS OF CLAIMS OR
INTERESTS TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
WHETHER OR NOT SUCH HOLDER WILL RECEIVE OR RETAIN ANY PROPERTY
OR INTEREST IN PROPERTY UNDER THE PLAN, HAS FILED A PROOF OF CLAIM
OR INTEREST IN THESE CHAPTER 11 CASES, OR FAILED TO VOTE TO ACCEPT
OR REJECT THE PLAN OR VOTED TO REJECT THE PLAN.
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
9
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I.
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
Co-Counsel to the Debtors Co-Counsel to the Debtors
and Debtors in Possession and Debtors in Possession
10
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 114 of 130
Exhibit 9
Form of Plan Supplement Notice
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 115 of 130
[Different first page link-to-previous setting changed from off in original to on in modified.].
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 FILING OF PLAN SUPPLEMENT
PLEASE TAKE NOTICE THAT on [●], 2024, the United States Bankruptcy Court for
the District of Delaware (the “Court”) entered an order [Docket No. [●]]
(the “Disclosure Statement Order”): (a) authorizing the above-captioned debtors and debtors in
possession (collectively, the “Debtors”) to solicit votes on the Joint Chapter 11 Plan of Vyaire
Medical, Inc. and Its Debtor Affiliates [Docket No. [●]] (as modified, amended, or supplemented
from time to time, the “Plan”);2 (b) approving on an interim basis the Disclosure Statement for
the Joint Chapter 11 Plan of Vyaire Medical, Inc. and Its Debtor Affiliates [Docket No. [●]]
(the “Disclosure Statement”) as containing “adequate information” pursuant to section 1125 of
the Bankruptcy Code; (c) approving the solicitation materials and documents to be included in
the solicitation packages; (d) approving procedures for soliciting, receiving, and tabulating votes
on the Plan and for filing objections to the Plan; and (e) granting related relief.
PLEASE TAKE FURTHER NOTICE THAT as contemplated under the Plan and the
Disclosure Statement Order, the Debtors filed the Plan Supplement on [[●]], 2024
[Docket No. [●]]. The Plan Supplement, as defined in the Plan, means the compilation of
documents and forms of documents, schedules, and exhibits to the Plan (in each case, as may be
altered, amended, modified, or supplemented from time to time) to be Filed by the Debtors prior
to the Confirmation Hearing to the extent available, and any additional documents Filed prior to
the Effective Date, including the following, as applicable: (a) Schedule of Assumed Executory
Contracts and Unexpired Leases, (b) Schedule of Rejected Executory Contracts and Unexpired
Leases, (c) Schedule of Retained Causes of Action, (d) the Plan Administrator Agreement, (e)
the Restructuring Transactions Memorandum, (f) the Wind-Down Budget, and (g) any other
necessary documentation related to the Sale Transactions or Restructuring Transactions in
accordance with Article IV of the Plan. The Debtors shall have the right to alter, amend, modify,
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 not otherwise defined herein have the same meaning as set forth in the Plan.
[Different first page link-to-previous setting changed from off in original to on in modified.].
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 116 of 130
[Link-to-previous setting changed from off in original to on in modified.].
or supplement the documents contained in the Plan Supplement up to the Effective Date as more
fully set forth in the Plan and, as necessary, approval of the Court.
PLEASE TAKE FURTHER NOTICE THAT the hearing at which the Court will
consider Confirmation of the Plan (the “Confirmation Hearing”) will commence on
November 14, 2024, at 1:30 p.m., prevailing Eastern Time, before The Honorable Brendan L.
Shannon, in the United States Bankruptcy Court for the District of Delaware, located at 824
North Market St., 6th Floor, Courtroom No. 1, Wilmington, DE 19801.
PLEASE TAKE FURTHER NOTICE THAT the deadline for filing objections to the
Plan is November 4, 2024, at 4:00 p.m., prevailing Eastern Time (the “Plan Objection
Deadline”). Any objection to the Plan must: (a) be in writing; (b) conform to the Bankruptcy
Rules, the Local Rules, and any orders of the Court; (c) state, with particularity, the basis and
nature of any objection to the Plan and, if practicable, a proposed modification to the Plan that
would resolve such objection; and (d) be filed with the Court and served upon the counsel to the
Debtors, the U.S. Trustee, counsel to the DIP Lenders, counsel to the Consenting First Lien
Lenders, counsel to the Consenting Second Lien Lenders, and counsel to the Committee on or
before the Plan Objection Deadline.
PLEASE TAKE FURTHER NOTICE THAT if you would like to obtain a copy of the
Disclosure Statement, the Plan, the Plan Supplement, or related documents, you should contact
Omni Agent Solutions, Inc., the claims and noticing retained by the Debtors in these chapter 11
cases (the “Claims and Noticing Agent”), by: (a) writing via first class mail, to Vyaire Medical,
Inc. et al., c/o Omni Agent Solutions, Inc., 5955 De Soto Avenue, Suite 100, Woodland Hills,
CA 91367; (b) writing via electronic mail to Vyaireinquiries@omniagnt.com; or (c) calling
the Debtors’ restructuring hotline at (866) 956-2140 (U.S. Toll-Free/Domestic) or +1 (818)
666-3635 (International). You may also obtain copies of any pleadings filed in these chapter 11
cases (a) for a fee via PACER at: http://www.deb.uscourts.gov; or (b) at no charge from Omni
Agent Solutions, Inc. by accessing the Debtors’ restructuring website at
https://omniagentsolutions.com/Vyaire.
ARTICLE VIII OF THE PLAN CONTAINS RELEASE, EXCULPATION, AND INJUNCTION
PROVISIONS, AND ARTICLE VIII.C OF THE PLAN CONTAINS A THIRD-PARTY
RELEASE. THUS, YOU ARE ADVISED TO REVIEW AND CONSIDER THE PLAN
CAREFULLY BECAUSE YOUR RIGHTS MIGHT BE AFFECTED THEREUNDER.
THIS NOTICE IS BEING SENT TO YOU FOR INFORMATIONAL PURPOSES ONLY.
IF YOU HAVE QUESTIONS WITH RESPECT TO YOUR RIGHTS UNDER THE PLAN
OR ABOUT ANYTHING STATED HEREIN OR IF YOU WOULD LIKE TO OBTAIN
ADDITIONAL INFORMATION, CONTACT THE CLAIMS AND NOTICING AGENT.
[Link-to-previous setting changed from off in original to on in modified.].
2
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[Link-to-previous setting changed from off in original to on in modified.].
[Link-to-previous setting changed from off in original to on in modified.].
3
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 118 of 130
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
Co-Counsel to the Debtors Co-Counsel to the Debtors
and Debtors in Possession and Debtors in Possession
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 119 of 130
Exhibit 10
Form of Notice of Assumption of Executory Contracts and Unexpired Leases
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 120 of 130
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 (A) EXECUTORY CONTRACTS AND
UNEXPIRED LEASES TO BE ASSUMED OR ASSUMED AND
ASSIGNED BY THE DEBTORS PURSUANT TO THE PLAN, (B) CURE AMOUNTS,
IF ANY, AND (C) RELATED PROCEDURES IN CONNECTION THEREWITH
PLEASE TAKE NOTICE THAT on [●], 2024, the United States Bankruptcy Court for
the District of Delaware (the “Court”) entered an order [Docket No. [●]]
(the “Disclosure Statement Order”): (a) authorizing the above-captioned debtors and debtors in
possession (collectively, the “Debtors”) to solicit votes on the Joint Chapter 11 Plan of Vyaire
Medical, Inc. and Its Debtor Affiliates [Docket No. [●]] (as modified, amended, or supplemented
from time to time, the “Plan”);2 (b) approving on an interm basis the Disclosure Statement for
the Joint Chapter 11 Plan of Vyaire Medical, Inc. and Its Debtor Affiliates [Docket No. [●]]
(the “Disclosure Statement”) as containing “adequate information” pursuant to section 1125 of
the Bankruptcy Code; (c) approving the solicitation materials and documents to be included in
the solicitation packages; (d) approving procedures for soliciting, receiving, and tabulating votes
on the Plan and for filing objections to the Plan; and (e) granting related relief.
PLEASE TAKE FURTHER NOTICE THAT the Debtors filed the Assumed Executory
Contract and Unexpired Lease List [Docket No. [●]] (the “Assumed Executory Contracts and
Unexpired Leases List”) with the Court as part of the Plan Supplement on [[●]], 2024 as
contemplated under the Plan. The Debtors’ determination to assume or assume and assign under
the Plan the agreements identified on the Assumed Executory Contracts and Unexpired Leases
List is subject to the Debtors’ reservation of rights under the Plan terms and ongoing review,
revision, and further negotiation among the Debtors and interested parties with respect thereto.
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 not otherwise defined herein have the same meaning as set forth in the Plan.
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 121 of 130
PLEASE TAKE FURTHER NOTICE THAT the hearing at which the Court will
consider Confirmation of the Plan and (the “Confirmation Hearing”) will commence on
November 14, 2024, at 1:30 p.m., prevailing Eastern Time, before The Honorable Brendan L.
Shannon, in the United States Bankruptcy Court for the District of Delaware, located at 824
North Market St., 6th Floor, Courtroom No. 1, Wilmington, DE 19801.
PLEASE TAKE FURTHER NOTICE THAT you are receiving this notice because the
Debtors’ records reflect that you are a party to a contract that is listed on the Assumed Executory
Contracts and Unexpired Leases List. Therefore, you are advised to carefully review the
information contained in this notice and the related provisions of the Plan, including the
Assumed Executory Contracts and Unexpired Leases List.
PLEASE TAKE FURTHER NOTICE THAT the Debtors are proposing to assume or
assume and assign the Executory Contract(s) and Unexpired Lease(s) listed in Exhibit A
attached hereto to which you are a party.3
PLEASE TAKE FURTHER NOTICE THAT section 365(b)(1) of the Bankruptcy
Code requires a chapter 11 debtor to cure, or provide adequate assurance that it will promptly
cure, any defaults under executory contracts and unexpired leases at the time of assumption.
Accordingly, the Debtors have conducted a thorough review of their books and records and have
determined the amounts required to cure defaults, if any, under the Executory Contract(s) and
Unexpired Lease(s), which amounts are listed in Exhibit A. Please note that if no amount is
3 Neither the exclusion nor inclusion of any Executory Contract or Unexpired Lease on the Assumed Executory
Contracts and Unexpired Leases List, nor anything contained in the Plan or the Plan Supplement, shall
constitute an admission by the Debtors that any such contract or lease is in fact an Executory Contract or
Unexpired Lease or that any Debtor has any liability thereunder. Notwithstanding anything to the contrary in
the Plan, the Debtors and the Wind-Down Debtors, as applicable, reserve the right to alter, amend, modify, or
supplement the Assumed Executory Contracts and Unexpired Leases List (i) to add or remove any Executory
Contract or Unexpired Lease to or from the Assumed Executory Contracts and Unexpired Leases List at any
time prior to the Confirmation Date, and (ii) to remove any Executory Contract or Unexpired Lease from the
Assumed Executory Contracts and Unexpired Leases List at any time through and including ninety (90) days
after the Effective Date, which removal shall constitute rejection of the applicable Executory Contract or
Unexpired Lease; provided that, subject to Article V.D of the Plan, at any time during such ninety (90)-day
period after the Effective Date, the Wind-Down Debtors shall remain liable for any and all amounts incurred
under any such Executory Contracts and Unexpired Leases on the Schedule of Assumed Executory Contracts
and Unexpired Leases in the ordinary course of business; provided, further, that, subject to Article V.C of the
Plan, on the first Business Day that follows such ninety (90)-day period, (i) to the extent any Executory
Contracts and Unexpired Leases remain on the Assumed Executory Contracts and Unexpired Leases List, such
Executory Contracts and Unexpired Leases shall be deemed Assumed Executory Contracts and Unexpired
Leases and the Wind-Down Debtors shall pay any and all Cure Claims owing under such Assumed Executory
Contracts and Unexpired Leases pursuant to section 365 of the Bankruptcy Code or (ii) to the extent the
Wind-Down Debtors have filed an amended or otherwise modified Assumed Executory Contracts and
Unexpired Leases List, removing any Executory Contract or Unexpired Lease, such Executory Contracts and
Unexpired Leases shall be deemed rejected pursuant to section 365 of the Bankruptcy Code. The Debtors shall
provide notice of any amendments to the Assumed Executory Contracts and Unexpired Leases List to the
counterparties to the Executory Contracts or Unexpired Leases affected thereby.
2
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 122 of 130
stated for a particular Executory Contract or Unexpired Lease, the Debtors believe that there is
no cure amount outstanding for such contract or lease.
PLEASE TAKE FURTHER NOTICE THAT any monetary defaults under an
Assumed Executory Contract or Unexpired Lease, as reflected on the Cure Notice and identified
in identified in Exhibit A, shall be satisfied, pursuant to section 365(b)(1) of the Bankruptcy
Code, by payment of the Cure Claim in Cash on the Effective Date, subject to the limitations
described in Article V.C of the Plan, or on such other terms as the parties to such Executory
Contracts or Unexpired Leases may otherwise agree. In the event of a dispute regarding (a) the
amount of any payments to cure such a default, (b) the ability of the Wind-Down Debtors or any
assignee, as applicable, to provide “adequate assurance of future performance” (within the
meaning of section 365 of the Bankruptcy Code) under the Executory Contract or Unexpired
Lease to be assumed, or (c) any other matter pertaining to assumption, the cure payments
required by section 365(b)(1) of the Bankruptcy Code shall be made following the entry of a
Final Order resolving the dispute and approving the assumption.4
PLEASE TAKE FURTHER NOTICE THAT, pursuant to Article V.C of the Plan, any
objection by a counterparty to an Executory Contract or Unexpired Lease to a proposed
assumption or assumption and assignment or related cure amount must be Filed, served, and
actually received by the Debtors by no later than fourteen (14) days after actual receipt of this
Notice, provided that, if the Debtors modify the Assumed Executory Contract or Unexpired
Lease List, any party affected by such modifications shall have fourteen (14) days to object to the
proposed modified treatment from the date of their recept of notice of such modification.
PLEASE TAKE FURTHER NOTICE THAT any counterparty to an Executory
Contract or Unexpired Lease that fails to object timely to the proposed assumption,
assumption and assignment, or cure amount will be deemed to have assented to such
assumption, assumption and assignment, or cure amount.
PLEASE TAKE FURTHER NOTICE THAT ASSUMPTION OR ASSUMPTION
AND ASSIGNMENT OF ANY EXECUTORY CONTRACT OR UNEXPIRED LEASE
PURSUANT TO THE PLAN OR OTHERWISE SHALL RESULT IN THE FULL
RELEASE AND SATISFACTION OF ANY CLAIMS OR DEFAULTS, WHETHER
MONETARY OR NONMONETARY, INCLUDING DEFAULTS OF PROVISIONS
RESTRICTING THE CHANGE IN CONTROL OR OWNERSHIP INTEREST
COMPOSITION OR OTHER BANKRUPTCY-RELATED DEFAULTS, ARISING
UNDER ANY ASSUMED OR ASSUMED AND ASSIGNED EXECUTORY CONTRACT
OR UNEXPIRED LEASE AT ANY TIME BEFORE THE DATE OF THE DEBTORS OR
WIND-DOWN DEBTORS ASSUME OR ASSUME AND ASSIGN SUCH EXECUTORY
CONTRACT OR UNEXPIRED LEASE. ANY PROOFS OF CLAIM FILED WITH
RESPECT TO AN EXECUTORY CONTRACT OR UNEXPIRED LEASE THAT HAS
BEEN ASSUMED OR ASSUMED AND ASSIGNED SHALL BE DEEMED
4 The Plan provisions referenced herein are for summary purposes only and do not include all provisions of
the Plan that may affect your rights. If there is any inconsistency between the provisions set forth herein and the
Plan, the Plan governs.
3
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 123 of 130
DISALLOWED AND EXPUNGED, WITHOUT FURTHER NOTICE TO OR ACTION,
ORDER, OR APPROVAL OF THE BANKRUPTCY COURT.
PLEASE TAKE FURTHER NOTICE THAT if you would like to obtain a copy of the
Disclosure Statement, the Plan, the Plan Supplement, or related documents, you should contact
Omni Agent Solutions, Inc., the claims and noticing agent retained by the Debtors in these
chapter 11 cases (the “Claims and Noticing Agent”), by: (a) writing via first class mail, to
Vyaire Medical, Inc. et al., c/o Omni Agent Solutions, Inc., 5955 De Soto Avenue, Suite 100,
Woodland Hills, CA 91367; (b) writing via electronic mail to Vyaireinquiries@omniagnt.com;
or (c) calling the Debtors’ restructuring hotline at (866) 956-2140 (U.S. Toll-Free/Domestic) or
+1 (818) 666-3635 (International). You may also obtain copies of any pleadings filed in these
chapter 11 cases (a) for a fee via PACER at: http://www.deb.uscourts.gov; or (b) at no charge
from Omni Agent Solutions, Inc. by accessing the Debtors’ restructuring website at
https://omniagentsolutions.com/Vyaire.
ARTICLE VIII OF THE PLAN CONTAINS RELEASE, EXCULPATION, AND INJUNCTION
PROVISIONS, AND ARTICLE VIII.C OF THE PLAN CONTAINS A THIRD-PARTY
RELEASE. THUS, YOU ARE ADVISED TO REVIEW AND CONSIDER THE PLAN
CAREFULLY BECAUSE YOUR RIGHTS MIGHT BE AFFECTED THEREUNDER.
THIS NOTICE IS BEING SENT TO YOU FOR INFORMATIONAL PURPOSES ONLY.
IF YOU HAVE QUESTIONS WITH RESPECT TO YOUR RIGHTS UNDER THE PLAN
OR ABOUT ANYTHING STATED HEREIN OR IF YOU WOULD LIKE TO OBTAIN
ADDITIONAL INFORMATION, CONTACT THE CLAIMS AND NOTICING AGENT.
4
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 124 of 130
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
Co-Counsel to the Debtors Co-Counsel to the Debtors
and Debtors in Possession and Debtors in Possession
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 125 of 130
I.
AddendumExhibit A
Schedule of Contracts and Leases and Proposed Cure Amounts
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 126 of 130
Exhibit 11
Form of Notice of Rejection of Executory Contracts and Unexpired Leases
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 127 of 130
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 REGARDING EXECUTORY CONTRACTS
AND UNEXPIRED LEASES TO BE REJECTED PURSUANT TO THE PLAN
PLEASE TAKE NOTICE THAT on [●], 2024, the United States Bankruptcy Court for
the District of Delaware (the “Court”) entered an order [Docket No. [●]] (the “Disclosure
Statement Order”): (a) authorizing the above-captioned debtors and debtors in possession
(collectively, the “Debtors”) to solicit votes on the Joint Chapter 11 Plan of Vyaire Medical, Inc.
and Its Debtor Affiliates [Docket No. [●]] (as modified, amended, or supplemented from time to
time, the “Plan”);2 (b) approving on an interim basis the Disclosure Statement for the Joint
Chapter 11 Plan of Vyaire Medical, Inc. and Its Debtor Affiliates [Docket No. [●]]
(the “Disclosure Statement”) as containing “adequate information” pursuant to section 1125 of
the Bankruptcy Code; (c) approving the solicitation materials and documents to be included in
the solicitation packages; (d) approving procedures for soliciting, receiving, and tabulating votes
on the Plan and for filing objections to the Plan; and (e) granting related relief.
PLEASE TAKE FURTHER NOTICE THAT the Debtors filed the Rejected Executory
Contract and Unexpired Lease List [Docket No. [●]] (the “Rejected Executory Contracts and
Unexpired Leases List”) with the Court as part of the Plan Supplement on or prior to [[●]], 2024,
as contemplated under the Plan. The Debtors’ determination to reject the agreements identified
on the Rejected Executory Contracts and Unexpired Leases List is subject to the Debtors’
reservation of rights under the Plan terms and ongoing review, revision, and further negotiation
among the Debtors and interested parties with respect thereto.
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 not otherwise defined herein have the same meaning as set forth in the Plan.
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 128 of 130
PLEASE TAKE FURTHER NOTICE THAT YOU ARE RECEIVING THIS
NOTICE BECAUSE THE DEBTORS’ RECORDS REFLECT THAT YOU ARE A
PARTY TO AN EXECUTORY CONTRACT OR UNEXPIRED LEASE THAT WILL BE
REJECTED PURSUANT TO THE PLAN. THEREFORE, YOU ARE ADVISED TO
CAREFULLY REVIEW THE INFORMATION CONTAINED IN THIS NOTICE AND
THE RELATED PROVISIONS OF THE PLAN.3
PLEASE TAKE FURTHER NOTICE THAT the hearing at which the Court will
consider Confirmation of the Plan (the “Confirmation Hearing”) will commence on
November 14, 2024, at 1:30 p.m., prevailing Eastern Time, before The Honorable Brendan L.
Shannon, in the United States Bankruptcy Court for the District of Delaware, located at 824
North Market St., 6th Floor, Courtroom No. 1, Wilmington, DE 19801.
PLEASE TAKE FURTHER NOTICE THAT proofs of Claim with respect to Claims
arising from the rejection of Executory Contracts or Unexpired Leases, if any, must be Filed with
the Bankruptcy Court within the earliest to occur of (a) thirty (30) days after the date of entry of
an order of the Bankruptcy Court (including the Confirmation Order) approving such rejection or
(b) thirty (30) days after notice of any rejection that occurs after the Effective Date. Any Claims
arising from the rejection of an Executory Contract or Unexpired Lease that are not Filed
within such time may be automatically Disallowed, forever barred from assertion, and
shall not be enforceable against, as applicable, the Debtors, the Wind-Down Debtors, the
Estates, or property of the foregoing parties, without the need for any objection by the
Debtors or the Wind-Down Debtors, as applicable, or further notice to, or action, order, or
3 Neither the exclusion nor inclusion of any Executory Contract or Unexpired Lease on the Rejected Executory
Contracts and Unexpired Leases List, nor anything contained in the Plan or the Plan Supplement, shall
constitute an admission by the Debtors that any such contract or lease is in fact an Executory Contract or
Unexpired Lease or that any Debtor has any liability thereunder. Notwithstanding anything to the contrary in
the Plan, the Debtors and the Wind-Down Debtors, as applicable, reserve the right to alter, amend, modify, or
supplement the Assumed Executory Contracts and Unexpired Leases List (i) to add or remove any Executory
Contract or Unexpired Lease to or from the Assumed Executory Contracts and Unexpired Leases List at any
time prior to the Confirmation Date, and (ii) to remove any Executory Contract or Unexpired Lease from the
Assumed Executory Contracts and Unexpired Leases List at any time through and including ninety (90) days
after the Effective Date, which removal shall constitute rejection of the applicable Executory Contract or
Unexpired Lease; provided that, subject to Article V.C of the Plan, at any time during such ninety (90)-day
period after the Effective Date, the Wind-Down Debtors shall remain liable for any and all amounts incurred
under any such Executory Contracts and Unexpired Leases on the Schedule of Assumed Executory Contracts
and Unexpired Leases in the ordinary course of business; provided, further, that, subject to Article V.C of the
Plan, on the first Business Day that follows such ninety (90)-day period, (i) to the extent any Executory
Contracts and Unexpired Leases remain on the Assumed Executory Contracts and Unexpired Leases List, such
Executory Contracts and Unexpired Leases shall be deemed Assumed Executory Contracts and Unexpired
Leases and the Wind-Down Debtors shall pay any and all Cure Claims owing under such Assumed Executory
Contracts and Unexpired Leases pursuant to section 365 of the Bankruptcy Code or (ii) to the extent the
Wind-Down Debtors have filed an amended or otherwise modified Assumed Executory Contracts and
Unexpired Leases List, removing any Executory Contract or Unexpired Lease, such Executory Contracts and
Unexpired Leases shall be deemed rejected pursuant to section 365 of the Bankruptcy Code. The Debtors shall
provide notice of any amendments to the Assumed Executory Contracts and Unexpired Leases List to the
counterparties to the Executory Contracts or Unexpired Leases affected thereby.
2
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 129 of 130
approval of the Bankruptcy Court or any other Entity, and any Claim arising out of the
rejection of the Executory Contract or Unexpired Lease shall be deemed fully satisfied, and
released, and discharged, notwithstanding anything in the Schedules or a Proof of Claim to
the contrary.
PLEASE TAKE FURTHER NOTICE THAT the deadline for filing objections to the
Plan is November 4, 2024, at 4:00 p.m., prevailing Eastern Time (the “Plan Objection
Deadline”). Any objection to the Plan must: (a) be in writing; (b) conform to the Bankruptcy
Code, Bankruptcy Rules, the Local Rules, and any orders of the Court; (c) state, with
particularity, the basis and nature of any objection to the Plan and, if practicable, a proposed
modification to the Plan that would resolve such objection; and (d) be filed with the Court on or
before the Plan Objection Deadline.
PLEASE TAKE FURTHER NOTICE THAT any objections to the Plan in connection
with the rejection of the Executory Contract(s) and Unexpired Lease(s) identified above and/or
related rejection damages proposed in connection with the Plan that remain unresolved as of the
Confirmation Hearing will be heard at the Confirmation Hearing (or such other date as fixed by
the Court).
PLEASE TAKE FURTHER NOTICE THAT if you would like to obtain a copy of the
Disclosure Statement, the Plan, the Plan Supplement, or related documents, you should contact
Omni Agent Solutions, Inc., the claims and noticing agent retained by the Debtors in these
chapter 11 cases (the “Claims and Noticing Agent”), by: (a) writing via first class mail, to
Vyaire Medical, Inc. et al., c/o Omni Agent Solutions, Inc., 5955 De Soto Avenue, Suite 100,
Woodland Hills, CA 91367; (b) writing via electronic mail to Vyaireinquiries@omniagnt.com;
or (c) calling the Debtors’ restructuring hotline at (866) 956-2140 (U.S. Toll-Free/Domestic) or
+1 (818) 666-3635 (International). You may also obtain copies of any pleadings filed in these
chapter 11 cases (a) for a fee via PACER at: http://www.deb.uscourts.gov; or (b) at no charge
from Omni Agent Solutions, Inc. by accessing the Debtors’ restructuring website at
https://omniagentsolutions.com/Vyaire.
ARTICLE VIII OF THE PLAN CONTAINS RELEASE, EXCULPATION, AND INJUNCTION
PROVISIONS, AND ARTICLE VIII.C OF THE PLAN CONTAINS A THIRD-PARTY
RELEASE. THUS, YOU ARE ADVISED TO REVIEW AND CONSIDER THE PLAN
CAREFULLY BECAUSE YOUR RIGHTS MIGHT BE AFFECTED THEREUNDER.
THIS NOTICE IS BEING SENT TO YOU FOR INFORMATIONAL PURPOSES ONLY.
IF YOU HAVE QUESTIONS WITH RESPECT TO YOUR RIGHTS UNDER THE PLAN
OR ABOUT ANYTHING STATED HEREIN OR IF YOU WOULD LIKE TO OBTAIN
ADDITIONAL INFORMATION, CONTACT THE CLAIMS AND NOTICING AGENT.
3
Case 24-11217-BLS Doc 585-2 Filed 09/30/24 Page 130 of 130
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
Co-Counsel to the Debtors Co-Counsel to the Debtors
and Debtors in Possession and Debtors in Possession
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