Vyaire - Notice of Filing Revised DS Motion Proposed Order
- Date
- 2024-10-02
Summary
An order of the U.S. Bankruptcy Court for the District of Delaware in the jointly administered Chapter 11 cases of Vyaire Medical, Inc., et al., Case No. 24-11217, filed October 2, 2024 as Doc 596 and signed by United States Bankruptcy Judge Brendan L. Shannon. Entered on the debtors' motion at Docket No. 520, it approves the Disclosure Statement on an interim basis and approves the Solicitation and Voting Procedures and the Combined Hearing Notice. It sets a timetable including a Voting Record Date of October 2, 2024, a Voting Deadline of November 4, 2024 and a Confirmation Hearing on November 14, 2024 at 1:30 p.m. The order also approves ballots, non-voting status notices for Classes 1, 2 and 3 and Classes 6, 7, 8, 9 and 10, and assumption and rejection notices. The 12-page order closes by retaining the court's jurisdiction.
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Case 24-11217-BLS Doc 596 Filed 10/02/24 Page 1 of 12
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. 520
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 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,
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 596 Filed 10/02/24 Page 2 of 12
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 to 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 injunction,
exculpation, and release provisions contained in Article VIII of the Plan, in satisfaction of the
requirements of Bankruptcy Rule 3016(c).
2
Case 24-11217-BLS Doc 596 Filed 10/02/24 Page 3 of 12
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
Confirmation Hearing November 14, 2024, at 1:30 p.m. (prevailing Eastern Time)
3
Case 24-11217-BLS Doc 596 Filed 10/02/24 Page 4 of 12
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 before
the Solicitation Deadline. Such service shall satisfy the requirements of the Bankruptcy Code, the
Bankruptcy Rules, and the Local Rules.
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
Case 24-11217-BLS Doc 596 Filed 10/02/24 Page 5 of 12
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
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
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Case 24-11217-BLS Doc 596 Filed 10/02/24 Page 6 of 12
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 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.
6
Case 24-11217-BLS Doc 596 Filed 10/02/24 Page 7 of 12
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
Classes 1, 2 and 3 substantially in the form attached hereto as
Presumed to Accept
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.
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).
7
Case 24-11217-BLS Doc 596 Filed 10/02/24 Page 8 of 12
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
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
8
Case 24-11217-BLS Doc 596 Filed 10/02/24 Page 9 of 12
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 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
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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. 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 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. 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. 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),
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Case 24-11217-BLS Doc 596 Filed 10/02/24 Page 11 of 12
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. All time periods set forth in this Order shall be calculated in accordance with
Bankruptcy Rule 9006(a).
29. 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. The Debtors are authorized to take all actions necessary to effectuate the relief
granted in this Order in accordance with the Motion.
11
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31. This Court retains jurisdiction with respect to all matters arising from or related to
the implementation, interpretation, and enforcement of this Order.
BRENDAN L. SHANNON
Dated: October 2nd, 2024 UNITED STATES BANKRUPTCY JUDGE
Wilmington, Delaware
12
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