Case 20-31840-sgj11 Doc 202-1 Filed 08/05/20 Entered 08/05 ...

David S. Rosner (admitted pro hac vice) Adam L. Shiff (admitted pro hac vice) Sheron Korpus (admitted pro hac vice) KASOWITZ BENSON TORRES LLP 1633 Broadway New York, NY 10019 Telephone: (212) 506-1700 Facsimile: (212) 506-1800 [email protected] [email protected] [email protected]

Louis R. Strubeck, Jr.(SBT 19425600) Ryan E. Manns, (SBT 24041391) Laura L. Smith (SBT 24066039) NORTON ROSE FULBRIGHT US LLP 2200 Ross Avenue, Suite 3600 Dallas, TX 75201-7932 Telephone: (214) 855-8000 Facsimile: (214) 855-8200 [email protected] [email protected] [email protected]

PROPOSED COUNSEL FOR THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS

IN THE UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

In re: TRIVASCULAR SALES LLC, et al.,1 Debtors.

§ § § § § § §

Chapter 11 Case No. 20-31840 (SGJ) (Jointly Administered)

AMENDED NOTICE OF SUBPOENA

PLEASE TAKE NOTICE that pursuant to Rule 45 of the Federal Rules of Civil Procedure,

the Official Committee of Unsecured Creditors will serve the subpoena attached as Exhibit A on

Jefferies LLC. The subpoena calls for the production of documents by August 18, 2020, at the

offices of Kasowitz Benson Torres, LLP, 1633 Broadway, New York, NY 10019.

1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal Tax identification

number, are: TriVascular Sales LLC (9179), Endologix, Inc. (8265), CVD/RMS Acquisition Corp. (8438), TriVascular Technologies, Inc. (7313), RMS/Endologix Sideways Merger Corp. (2974), Nellix, Inc. (8416), TriVascular, Inc. (2620), and Endologix Canada, LLC (2872). The corporate headquarters and the mailing address for the Debtors listed above is 2 Musick, Irvine, California 92618.

Case 20-31840-sgj11 Doc 202 Filed 08/05/20 Entered 08/05/20 13:23:27 Page 1 of 2

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Dated: August 5, 2020

Respectfully submitted, KASOWITZ BENSON TORRES LLP David S. Rosner (admitted pro hac vice) Adam L. Shiff (admitted pro hac vice) Sheron Korpus (admitted pro hac vice) 1633 Broadway New York, NY 10019 Telephone: (212) 506-1700 Facsimile: (212) 506-1800 - and - NORTON ROSE FULBRIGHT US LLP

By: /s/ Ryan E. Manns , Louis R. Strubeck (SBT 19425600) Ryan E. Manns (SBT 24041391) Laura L. Smith (SBT 24066039) 2200 Ross Avenue, Suite 3600 Dallas, Texas 75201-7932 Telephone: (214) 855-8000 Facsimile: (214) 855-8200 PROPOSED COUNSEL FOR THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS

Certificate of Service

I certify that on August 5, 2020, I caused a copy of the foregoing document to be served by the Electronic Case Filing System for the United States Bankruptcy Court for the Northern District of Texas. /s/ Ryan E. Manns Ryan E. Manns

Case 20-31840-sgj11 Doc 202 Filed 08/05/20 Entered 08/05/20 13:23:27 Page 2 of 2

EXHIBIT A

Case 20-31840-sgj11 Doc 202-1 Filed 08/05/20 Entered 08/05/20 13:23:27 Page 1 of 14

8257 (Form 257 - Subpoena to Produce Documenls, Information, or Objects or To Pennit lnspeclion in a Bankruptcy Case or Adversary Proceeding) (12ll 3)

UNnpn SrRrBs BewrnuPTCY CounrNorthern District of Texas, Dallas Division

1r,," TrivascularSales LLC, et,al.,

Debtor

(Complete d issued in.an,adversary proceeding)Case No. 20-31840

Chapter 11

PlaintiffAdv. Proc. No.

Defendant

To:

suBpoENA TO PRODUCE DOCUMENTS,INFORMATTON, OR OBJECTS OR TO PERMTTINSPECTTON OF PREMTSES rN A BANKRUPTCY CASE (OR ADVERSARY PROCEEDTNG)

Michael J. Sharp, Jefferies LLC, 520 Madison Avenue, 6th Floor, New York, New York ',l0022

(Name of person to whom the subpoena is directed)

& Production: YOIJ ARE COMMANDED to produce at the time, date, and place set forth below the followingdocuments, electronically stored information, or objects, and to permit inspection, copying, testing, or sampling of thematerial: See Schedule A.

PLACEKasowitz Benson Torres LLP, 1633 Broadway, New York, New York 'l 00'l 9

DATE AND TIMEAugust 18,2020 at 10:00 a.m

f, Inspection of Premises: YOU ARE COMMANDED to permit entry onto the designated premises, land, orother property possessed or controlled by you at the time, date, and location set forth below, so that the requestingpartymay inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.

PLACE DATE AND TIME

The following provisions of Fed. R. Civ. P. 45, made applicable in bankruptcy cases by Fed. R. Bankr. P. 9016, areattached - Rule 45(c), relating to the place of compliance; Rule 45(d), relating to your protection as a person subject to asubpoena; and Rule 45(e) and 45(g), relating to your duty to respond to this subpoena and the potential consequences ofnotdoing so.

r\^+^. 8l4l2O2OvoLa,

CLERK OF COURT

OR

Signature of Clerk or Deputy Clerk J

The name, address, email address, and telephone number of the attomey representing (name of party)TriVascular Sales LLC , who issues or requests this subpoena, are:

Matthew B. Stein, 1633 Broadway, New York, New York 'l 001 9, [email protected], 212-506-1 71 7

Notice to the person who issues or requests this subpoenaIf this subpoena commands the production of documents, electronically stored information, or tangible things, or theinspection of premises before tial, a notice and a copy of this subpoena must be served on each parly before it is served onthe person to whom it is directed. Fed. R. Civ. P. a5@)@\


B257(Form257_SubpoenatoProduceDocuments,Information,orobjectsorTo]e) r

PROOF OF SEIIVTCE(This section should not he ,filod with the Gourt unless r€quired by Fleil iR. Civ. P. 45.)

I receivedthis subpoenafor (name of individ.ual'nnd title, if any):.on(date) _.

,fl I suveil the subpoena by delivering a'eopy to the named person as follows:

'on(date) or

I I returned the subpoena unexecuted because:

Unless the subpoena was issued on behalf of the United States, or one of its officers or agents, I have also tendered to thewitness the fees for one day's attendance, and the mileage allowed by law, in the amount of $

My fees are $ for travel and $_ for services, for a total of$-

I declare under penalty ofperjury that this information is true and correct.

Date:

Server's signature

Printed name and title

Server's address

Additional information concerning attempted service, etc.


8257 (Form 257 - Subpoena to Produce Documents, information, or Objects or To Permit Inspection in a Bankruptcy Case or Adversary Proceedins) (Pase 3)

Federal Rule of Civil Procedure 45(c), (d), (e), and (g) (Effective l2ll/13)(made applicable in bankruptcy cases by Rule 9016, Federal Rules of Bankruptcy Procedure)

(c) Place of compliance.

(1) For a Trial, Hearing, or Deposition. A subpoena may command a

person to attend a trial, hearing, or deposition only as follows:(A) within 100 miles of where the person resides, is onployed, or

regularly transacts business in person; or(B) within the state where the person resides, is employed, or regularly

transacts business in person, if the person(i) is a party or a party's officer; or(ii) is commanded to attend a trial and would not incur substantial

expense-

(2) For Other Discovety. A subpoena may command:(A) production of documents, or electronically stored information, or

things at a place within 100 rniles ofwhere the person resides, is employed'or regularly transacts business in person; and

(B) inspection of premises, at the premises to be inspected.

(d) Protecting a Person Subject to a Subpoena; Enforcement.

( I ) Avoiding Undue Burden or Expense; Sanctions. A patty orattomey responsible for issuing and serving a subpoena must takereasonable steps to avoid imposing undue burden or expense on a pemonsubject to the subpoena. The court for the district where compliance isrequired rnust enforce this duty and impose an appropriate sanctionwhich may include lost eamings and reasonable attomey's fees - on aparty or attomey who fails to cornply.

(2) Command lo Produce Materials or Permit Inspection.(A) Appearonce Not Required. A person cotntnanded to produce

documents, electronically stored information, or tangible things, or topennit the inspection of premises, need not appear in percon at the place ofproduction or inspection unless also commanded to appear for a deposition,hearing, or trial.

(B) Objections. A person commanded to produce documents or tangiblethings or to pennit inspection rnay serve on the party or attoraley designatedin the subpoena a written objection to inspecting, copying, testing orsampling any or all of the materials or to inspecting the premises - or toproducing electronically stored infonnation in the form or fonns requestedThe objection rnust be sewed before the earlier of the time specified forcompliance or l4 days after the subpoena is sewed. If an objection is rnade'the following rules apply:

(i) At any time, on notice to the commanded person, the serving partymay move the cour1 for the district where compliance is required for anorder cornpelling production or inspection.

(ii) These acts may be lequired only as directed in the order, and theorder must protect a person who is neither a party nor a pafty's officer fromsignifi cant expense resulting frorn compliance.

(3) Quashing or Modifying a Subpoena.(A) Iilhen Required. On timely motion, the court for the district where

compliance is required must quash or rnodifl, a subpoena that:(i) fails to allow a reasonable time to comply;(ii) requires a person to comply beyond the geographical limits

specified in Rule 45(c);(iii) requires disclosure of privileged or other protected matter, ifno

exception or waiver applies; or(iv) subjects a person to undue burden.

(B) When Permitted. To protect a pe$on subject to or affected by asubpoena, the courl for the district where compliance is required may, onmotion, quash or modifo the subpoena if it requires:

(i) disclosing a trade secret or other confidential research,development, or commercial information; or

(ii) disclosing an uffetained.expert's opinion or information that doesnot describe specific occutrences in dispute and results from the expert'sstudy that was not requested by.a party.

(C) Specifuing Conditions as an Alternative. In the circumstancesdescribed in Rule a5(dX3XB), the court may, instoad ofquashing ormodifoing a subpoena, order appearance orproduction under specifiedconditions ifthe serving party:

(i) shows a substantial need for the testimony or rnaterial that cannotbe otherwise met without undue hardship; and

(ii) ensures that the subpoenaed person will be:reasonablycornpensated.

(e) Duties in Responding to a Subpoena.

(t) Producing Documents or Electonically Stored Information. Theseprocedures apply to producing docurnents or electronically storedinformation:

(A) Documents. A percon responding to a subpoena to producedocuments must produce them as they are kept in the ordinary course ofbusiness or must organize and label theln to coffespond to the categories inthe demand.

(B) Formfor Producing Electronically Stored Information NotSpecified. If a subpoena does not specifu a form for producingelectronically stored infomation, the pemon responding must produce it ina form or forms in which it is ordinarily maintained or in a reasonablyusable fonn or forms.

(C) Electronically Stored Information Produced in Only One Form. Theperson responding need not produce the same electronically storedinformation in more than one form.

(D) Inaccessible Electronically Stored Information The personresponding need not provide discovety of electronically stored informationfLom sources that the person identifies as not reasonably accessible becauseof undue burden or cost. On motion to compel discovery or for a protectiveorder, the person responding must show that the infonnation is notreasonably accessible because ofundue butden or cost. Ifthat showing ismade, the court may nonetheless order discovery from such sources iftherequesting party shows good cause, considering the lirnitations of Rule26(bX2XC). The courl may specifl, conditions for the discovery.

(2) Claimins Privilege or Protection.(A) Infomation llithheld. A person withholding subpoenaed

information under a claim that it is privileged or subject to protection as

trial-prepamtion material must:(i) expressly make the claim; and(ii) describe the nature of the withheld documents, communications,

or tangible things in a manner that, without revealing information itselfprivileged or protected, will enable the parties to assess the claim.

(B) Information Produced. If infomation produced in response to asubpoena is subject to a clairn ofprivilege or ofprotection as trial-preparation rnaterial, the person rnaking the clairn rnay notif' any party tlutreceived the information of the claim and the basis for it. Aftel beingnotified, a party must plomptly retum, sequester, or destroy the specifiedinformation and any copies it has; must not use or disclose the infonnationuntil the claim is resolved; must take reasonable steps to retrieve theinformation if the party disclosed it before being notified; and maypromptly present the information under seal to the court for the districtwhere compliance is required for a detennination of the claim. The personwho produced the infonnation must preselve the infotmation until the claimis resolved.

(g) Contempt. The court for the district where compliance is required - andalso, after a motion is transfened, the issuing court may hold in contempta person who, having been seled, fails without adequate excuse to obeythe subpoena or an order rplated to it.

For access to subpoena materials, see Fed. R. Civ. P. 45(a) Committee Note (2013)


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SCHEDULE A

DEFINITIONS

The following definitions1 of terms apply to these Document Requests (the “Requests”).

Unless otherwise defined herein, all words and phrases used in the Requests shall be accorded

their usual meaning and shall be interpreted in their common, ordinary sense.

1. “Aon” means Aon plc, and its affiliated entities, predecessors, successors, and

each of their respective partners, principals, officers, directors, attorneys, and Professionals, and

other advisors, agents, employees, representatives, and other Persons acting or purporting to act

on their behalf.

2. “Communications” means the transmittal of information (in the form of facts,

ideas, inquiries, or otherwise). For the avoidance of doubt, this may encompass any oral,

written, or electronic transmission of information without limitation, including meetings,

discussions, conversations, telephone calls, e-mail messages, text messages, Bloomberg

messages, chat messages, including Instant Bloomberg chat messages, WhatsApp chat messages,

GroupMe chat messages, memoranda, letters, analyst reports, telecopies, telefaxes, telexes,

conferences, seminars, messages, notes, videotapes, photographs, microfilm, microfiche,

magnetic disks, or other media of any kind.

3. “Debtors” means the debtors and debtors in possession in the jointly-administered

case of In re TriVascular Sales LLC, et al., Case No. 20-31840 (SGJ) (Bankr. N.D. Tex.), and

any and all predecessors, officers, directors, board of directors, committee or subcommittee of

1 Unless otherwise defined, capitalized terms herein shall have the meanings ascribed to them in the Declaration of John Onopchenko, the Debtors’ Chief Executive Officer, in Support of Chapter 11 Petitions and First Day Pleadings (“Onopchenko Declaration”) [Dkt. No. 18], the Disclosure Statement for the Debtors’ Joint Plan of Reorganization Under Chapter 11 [Dkt. No. 20] (the “Disclosure Statement”), or the Debtors’ Joint Plan of Reorganization Under Chapter 11 [Dkt. No. 21-1] (the “Plan”).


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such board, employees, agents, insurers, consultants, advisors, attorneys, Professionals, and

representatives or other Persons acting on their behalf, including, without limitation, Aon, DLA

Piper, Jefferies, and FTI (each as defined herein).

4. “Deerfield” means Deerfield Management Company, L.P. and its affiliated

entities, including, but not limited to, Deerfield Partners L.P., Deerfield Private Design Fund III,

L.P., Deerfield Private Design Fund IV, L.P., and Deerfield ELGX Revolver, LLC, and each of

their respective partners, principals, officers, directors, attorneys, and Professionals, and other

advisors, agents, employees, representatives, and other Persons acting or purporting to act on

their behalf.

5. “DIP Facility” means DIP Facility as defined in the Disclosure Statement and

Plan and any financing that it provides to Debtors.

6. “DLA Piper” means DLA Piper LLP and its affiliated entities, predecessors,

successors, and each of their respective partners, principals, officers, directors, attorneys, and

Professionals, and other advisors, agents, employees, representatives, and other Persons acting or

purporting to act on their behalf.

7. “Documents” is defined to be synonymous in meaning and equal in scope to the

usage of the term “documents or electronically stored information” in Federal Rule of Civil

Procedure 34(a)(1)(A). For the avoidance of doubt, this may encompass all written, graphic, or

printed matter of any kind, however produced or reproduced, including all originals, drafts,

working papers, and non-identical copies, whether different from the originals by reason of any

notation made on such copies or otherwise, and all electronic, mechanical, or optical records or

representations of any kind or other data compilations from which information can be obtained


3

or translated, if necessary, through detection devices into reasonably usable form. The term

“Documents” includes, but is not limited to:

a. Communications (as defined herein), correspondence, memoranda, notes, calendar or diary entries, statistics, letters, electronic mail, notebooks, telegrams, journals, minutes, agendas, notices, announcements, instructions, charts, schedules, requests, contracts, prospective contracts, agreements, prospective agreements, licenses, prospective licenses, order forms, books, accounts, records, reports, studies, surveys, experiments, analyses, checks, cancelled checks, wire confirmations, statements, receipts, returns, vouchers, statements, credit memoranda, sales slips, promissory notes, summaries, pamphlets, prospectuses, manuals, brochures, announcements, certificates, drawings, plans, inter-office and intraoffice communications, pitchbooks, marketing materials, or offers;

b. notations in any form made of conversations, telephone calls, meetings, negotiations, or other communications;

c. bulletins, circulars, schedules, lists, guides, printed matter (including newspapers, magazines and other publications, articles and clippings therefrom), press releases, computer printouts, teletypes, telecopies, telexes, invoices, ledgers, balance sheets, financial statements, or worksheets;

d. electronic, mechanical, or optical records or representations of any kind (including tapes, cassettes, discs, hard drives, recordings, voice mail, electronic mail, and computer-stored data or material), or transcriptions thereof; and

e. all drafts, alterations, modifications, changes and amendments of any of the foregoing, and any material underlying, supporting, or used in the preparation of any document.

A draft or non-identical copy is a separate document within the meaning of this term.

8. “FTI” means FTI Consulting, Inc., and its affiliated entities, predecessors,




9. “Identify” (with respect to documents) means to give, to the extent known, the

(i) type of document; (ii) general subject matter; (iii) date of the document; and (iv) author(s),


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addressee(s), and recipient(s). In the alternative, the responding party may produce the

documents, together with identifying information sufficient to satisfy Federal Rule of Civil

Procedure 33(d).

10. “Jefferies” means Jefferies LLC and its affiliated entities, predecessors,




11. “Person” means any natural person, corporation, firm, partnership, other

unincorporated association, company, trust, fund, government agency, or entity. For the

avoidance of doubt, this includes current and former employees, officers, directors, partners,

agents, brokers, representatives, and accountants.

12. “Professional” means any counsel, consultant, advisor, testifying expert, non-

testifying expert, agent, representative, or other Person engaged to provide or involved in

providing at any time any services.

13. “Regarding” means relating to, referring to, concerning, describing, evidencing,

or constituting.

14. “You” or “Your” means Jefferies.

INSTRUCTIONS

15. The preceding definitions apply to these Instructions and each of the succeeding

Requests.

16. All terms defined above shall have the meanings set forth therein, whether

capitalized in the Requests or not.


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17. The terms “any,” “all,” and “each” shall be construed broadly, and shall mean

any, all, and each as necessary so as to bring within the scope of the Request all responses that

otherwise could be construed to be outside of its scope.

18. The connectives “and” and “or” shall be construed either disjunctively or

conjunctively as necessary to bring within the scope of the Request all responses that might

otherwise be construed to be outside of its scope.

19. The term “including” shall be construed to mean including, but not limited to, and

shall not be interpreted to exclude any information otherwise within the scope of these Requests.

20. You are required to produce all responsive Documents in your possession,

custody or control, wherever located, including without limitation those in the custody of your

representatives, agents, Professionals, affiliates, or anyone acting on your behalf.

21. These Requests are continuing requests pursuant to Federal Rule of Civil

Procedure 26(e), as made applicable to these proceedings by Federal Rules of Bankruptcy

Procedure 7026 and 9014. You must supplement any production of Documents that are

received, discovered, or created after any of your responses to the Requests, or that are otherwise

within your possession, custody, or control, wherever located, including without limitation those

in the custody of your representatives, agents, Professional, affiliates, or anyone acting on your

behalf.

22. If You object to any part of any Request, You must produce all Documents that

are responsive to the portions of the Request to which You do not object. You also must state

the nature of, and grounds for, the objection.

23. If You withhold any Documents in response to a Request, You must Identify all

such Documents.


6

24. If You cannot comply with any Request in full, You must comply to the fullest

extent possible, and You should provide an explanation as to why full compliance is not

possible.

25. Where You assert a claim of privilege in objecting to a Request and withhold a

responsive Document on this basis, You must provide a privilege log setting forth (a) the nature

of the privilege being claimed, (b) the type of Document being withheld, (c) the general subject

matter of the Document, (d) the date of the Document and (e) such other information sufficient

to Identify the Document, including, where appropriate, the author of the Document, the title or

subject line of the Document, the addressee of the Document, and, where not apparent, the

relationship of the author and the addressee to each other.

26. If a Document contains both privileged and non-privileged material, You must

disclose the non-privileged material to the fullest extent possible without thereby disclosing the

privileged material. If a party asserts a privilege to part of the material contained in a Document,

the party asserting the privilege must clearly indicate the portions as to which it claims the

privilege. When a Document has been redacted or altered in any fashion, You must Identify as

to each Document the reason for the redaction or alteration, the date of the redaction or

alteration, and the Person performing the redaction or alteration. Any redaction must be clearly

visible on the redacted Documents.

27. All Documents shall be produced in TIFF format with OCR images and load files.

28. All Documents produced pursuant to the Requests shall be produced with an

accompanying index that states the following metadata:

a. Date created/sent;

b. Author;

c. Recipients;


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d. cc – copies; and

e. bcc – blind copies.

29. If any Document called for by these Requests has been destroyed or discarded,

You must Identify that Document in writing by providing the following information: (a) any

sender/author and any addressee; (b) any indicated or blind copies; (c) the Document’s date,

subject matter, number of pages, and attachments or appendices; (d) all Persons to whom the

Document was distributed, shown, or explained; (e) its date of destruction or discard, manner of

destruction or discard, and reason for destruction or discard; (f) the Persons who authorized and

carried out such destruction or discard; and (g) whether any copies of the Document presently

exist and, if so, the name of the custodian of each copy.

30. Any copy of a Document that varies in any way whatsoever from the original or

from any other copy of the Document, whether by reason or any handwritten mark or other

notation or any omission, is a separate Document and must be produced, whether or not the

original of such a Document is within your possession, custody, or control. A request for any

Document includes a request for all drafts thereof, and all revisions and modifications thereto,

including any red-lined versions or Document comparisons, in addition to the Document itself.

Each Document is to be produced in its entirety, without abbreviation or expurgation.

31. In producing Documents, all Documents that are physically attached to each

other, or segregated or separated from other Documents, when originally located, should be

produced as is. If no Document exists that is responsive to a particular request, You must state

so in writing.

32. The singular shall include the plural, and the plural shall include the singular, the

conjunctive shall include the disjunctive, and the disjunctive shall include the conjunctive, and a

verb in any tense shall be construed as the use of the verb in all other tenses, as necessary so as to


8

bring within the scope of the Request all responses that might otherwise be construed to be

outside of its scope.

33. Except where otherwise specified, the Requests seek Documents dated, prepared,

or otherwise obtained on or after January 1, 2017 through the present.

DOCUMENT REQUESTS

1. Documents regarding the historical and projected financial condition and

performance of the Debtors, including, but not limited to, consolidated, non-consolidated and

consolidating financial statements, management reports, financial reports, tax returns, and NOLs.

2. Documents regarding the potential usability and/or value of the NOLs, including,

but not limited to, any financial or tax opinions or analyses.

3. Documents regarding the past, current or future value of the Debtors, including, but

not limited to: (i) any internal valuations or external valuations or indications of value from the

Debtors, Deerfield, DLA Piper, FTI, Jefferies or third parties; and (ii) any analysis or

determination of critical vendor status, including a list of all critical vendors and estimated value

of claims.

4. Documents regarding the Debtors’ loan agreements, including the August 9, 2018

Prepetition Term Loan Agreement, August 9, 2018 Prepetition ABL Agreement, February 24,

2020 Fourth Amendment to the Prepetition Term Loan Agreement, May 26, 2020 ABL

Forbearance Agreement, and any amendments.

5. Documents regarding the identity of the Assumed Trade Claims and the prepetition

determination to assume their contracts.

6. Documents regarding the decision to ascribe a maximum $2,000,000 value to the

GUC Distribution Amount.


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7. Documents that support the contemplated releases under the Plan.

8. Documents regarding the Debtors’ performance, including, but not limited to: all

business plans, prospects, value, financial projections, strategies on restructuring initiatives,

funding requirements, projected working capital, capex requirements and assumptions,

contemplated potential restructurings, the RSA, Restructuring Transactions, Disclosure Statement,

or the Plan.

9. Documents regarding the Debtors’ products under development and products under

research and development.

10. Documents regarding discussions or meetings between the Debtors and Debtors’

lenders, creditors, shareholders, advisors or third parties concerning the Debtors’ “robust

marketing process” as described in the Onopchenko Declaration, including, but not limited to: (i)

pitchbooks, confidential information memoranda and financial projections; (ii) Jefferies’s efforts

to contact “strategic parties and financial sponsors”; and (iii) subsequent meetings and

communications of Debtors with third parties relating to a potential transaction.

11. Documents regarding the structure, planning, and negotiation of the RSA,

including, but not limited to: any term sheets, summaries, or other documents relating to the timing

or sequencing of the Restructuring Transactions.

12. Documents regarding the structure, planning, and negotiation of the DIP Facility,

including, but not limited to: (i) any term sheets, summaries, or other documents relating to the

loans or credit extended; (ii) all marketing materials produced and distributed for competing DIP

financings and logs detailing lists of parties contacted regarding the DIP financing outreach; (iii)

all source documents used to create the DIP budget; (iv) the most up to date 13-week DIP cash


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flow budget and operating model in Excel, including underlying assumptions and detailed build-

up of sources and uses; and (v) any budget-to-actual variance reports.

13. Documents regarding the impact of COVID-19 and any other factors on the

Debtors’ value and decision to file for bankruptcy.

14. All documents You considered in connection with Your valuation of the Debtors.


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