OSAPW ProSomnus Inc (PK)

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d) of The
Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported): June 26, 2024

 

 

ProSomnus, Inc.

(Exact name of registrant as specified in its charter)

 

 

Delaware		001-41567		88-2978216
(State or other jurisdiction of incorporation)		(Commission File Number)		(I.R.S Employer Identification No.)

 

5675 Gibraltar Drive
Pleasanton, California 94588

(Address of principal executive offices) (zip code)

 

Registrant’s telephone number, including area code: (844) 537-5337

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class		Trading Symbol(s)		Name of each exchange on which registered
Common Stock, par value $0.0001 per share		OSA(1)		(1)
Warrants, each whole warrant exercisable for one share of Common Stock for $11.50 per share		OSAAW(1)		(1)

 

(1) On April 24, 2024, the Nasdaq Stock Market LLC filed a Form 25 to delist the Company’s common stock and warrants and remove such securities from registration under Section 12(b) of the Securities Exchange Act of 1934, as amended, which became effective 10 days after the filing of the Form 25. Effective April 18, 2024, the Company’s common stock and warrants have been traded on the over-the-counter market under the symbols “OSAP” and “OSAPW”, respectively.

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

 

Emerging growth company x

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨

 

 

 

Item 7.01. Regulation FD Disclosure.

 

Additional information about ProSomnus, Inc.’s (the “Company”) Chapter 11 Cases (as defined below) may be obtained at the following website: www.kccllc.net/prosomnus. The information at this website is not incorporated by reference into, and does not constitute a part of, this Current Report on Form 8-K.

 

The information contained in Item 7.01 of this Current Report on Form 8-K shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities under that section and shall not be deemed to be incorporated by reference into any filing under the Securities Act of 1933, as amended, or the Exchange Act.

 

Item 8.01. Other Events.

 

As previously reported in the Company’s Current Report on Form 8-K filed on May 8, 2024, the Company and certain of its existing affiliates and subsidiaries (the “Debtors”) filed voluntary petitions for relief under Chapter 11 of Title 11 of the United States Bankruptcy Code (the “Chapter 11 Cases”), as amended in the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”). At the hearing held before the Bankruptcy Court on June 26, 2024, the Bankruptcy Court determined that the Debtors’ Disclosure Statement for Amended Joint Chapter 11 Plan of Reorganization of ProSomnus, Inc. and its Debtor Affiliates, including all exhibits and schedules thereto, contains adequate information and the Debtors are authorized to solicit votes on, and pursue confirmation of, the Amended Joint Chapter 11 Plan of Reorganization of ProSomnus, Inc. and its Debtor Affiliates (the “Plan”). Additionally, the Bankruptcy Court established, among other things, the confirmation hearing date (the “Confirmation Hearing”) and set various deadlines associated with the Confirmation Hearing including but not limited to, filing objections to confirmation of the Plan.

 

In accordance with the above, the Debtors have filed the notice related to the Confirmation Hearing (the “Confirmation Hearing Notice”) herewith as Exhibit 99.1 to this Current Report on Form 8-K. The foregoing description of the Confirmation Hearing Notice does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Confirmation Hearing Notice attached hereto as Exhibit 99.1, and is incorporated herein by reference.

 

Item 9.01. Financial Statements and Exhibits.

 

d) Exhibits.

 

Exhibit No.		Description
99.1		Confirmation Hearing Notice.
104		Cover Page Interactive Data File (embedded within the Inline XBRL document).

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

	PROSOMNUS, INC.
Date: June 27, 2024	By:	/s/ Brian B. Dow
		Name:	Brian B. Dow
		Title:	Chief Financial Officer

 

Exhibit 99.1

 

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF DELAWARE

 

In re:   PROSOMNUS, INC., et al.,1   Debtors.

Chapter 11   Case No. 24-10972 (JTD)   (Jointly Administered)

 

NOTICE OF HEARING TO CONSIDER CONFIRMATION OF THE CHAPTER 11 PLAN FILED BY THE DEBTORS AND RELATED VOTING AND

OBJECTION DEADLINES

 

PLEASE TAKE NOTICE THAT on June 26, 2024, the United States Bankruptcy Court for the District of Delaware (the “Court”) entered an order [Docket No. 195] (the “Disclosure Statement Order”): (a) approving the Disclosure Statement for Amended Joint Chapter 11 Plan of Reorganization of ProSomnus, Inc. and its Debtor Affiliates, including all exhibits and schedules thereto (as may be modified, amended or supplemented from time to time, the “Disclosure Statement”); (b) establishing the voting record date, voting deadline, and other related dates in connection with confirmation of the Amended Joint Chapter 11 Plan of Reorganization of ProSomnus, Inc. and its Debtor Affiliates (as may be modified, amended or supplemented from time to time, the “Plan”);² (c) approving procedures for soliciting, receiving, and tabulating votes on the Plan; and (d) approving the manner and forms of notice and other related documents as they relate to the Debtors.

 

PLEASE TAKE FURTHER NOTICE THAT the hearing at which the Court will consider Confirmation of the Plan (the “Confirmation Hearing”) will commence on July 30, 2024 at 10:00 a.m. prevailing Eastern Time, before the Honorable John T. Dorsey, in the United States Bankruptcy Court for the District of Delaware, located at 824 N. Market Street, 5^th Floor, Courtroom #5, Wilmington, Delaware 19801.

 

PLEASE BE ADVISED: THE CONFIRMATION 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.

 

 

 ¹ The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification number are: ProSomnus, Inc. (8216), ProSomnus Holdings, Inc. (3855), and ProSomnus Sleep Technologies, Inc. (0766). The location of the Debtors’ principal place of business and the Debtors’ mailing address is 5675 Gibraltar Dr., Pleasanton, California 94588.

² Capitalized terms used but not defined herein have the meaning given to such terms in the Plan or Disclosure Statement, as applicable.

 

 

CRITICAL INFORMATION REGARDING VOTING ON THE PLAN

 

Voting Record Date. The voting record date is June 24, 2024 (the “Voting Record Date”), which is the date for determining which Holders of Claims and Interests are entitled to vote on the Plan.

 

Voting Deadline. The deadline for voting on the Plan is July 19, 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’ administrative agent, Kurtzman Carson Consultants, LLC dba Verita Global (the “Voting 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 SECTION 8.04 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, PLEASE CONTACT THE VOTING AGENT.

 

Plan Objection Deadline. The deadline for filing objections to the Plan is July 22, 2024 at 4:00 p.m. prevailing Eastern Time (the “Plan Objection Deadline”). All objections to the relief sought at the Confirmation Hearing must (i) be in writing; (ii) conform to the Bankruptcy Rules and the Local Rules; (iii) set forth the name of the objecting party, the nature and amount of Claims or Interests held or asserted by the objecting party against the Debtors’ estates or property; (iv) set forth the basis for the objection and the specific grounds therefor, and provide proposed language that, if accepted and incorporated by the Debtors, would obviate such objection; and (v) be filed, together with proof of service and served upon the following parties so as to be actually received on or before the Plan Objection Deadline

 

a.

the Debtors, c/o ProSomnus, Inc., 5675 Gibraltar Dr., Pleasanton, California 94588;

 

b.

counsel to the Debtors, Polsinelli PC, 222 Delaware Avenue, Suite 1101, Wilmington, Delaware 19801, Attn: Shanti M. Katona (skatona@polsinelli.com) and Katherine M. Devanney (kdevanney@polsinelli.com);

 

 

c.

counsel to the Sponsoring Noteholders and DIP Lenders, Lowenstein Sandler LLP, 1251 Avenue of the Americas, New York, New York 10020, Attn: David M. Posner (dposner@lowenstein.com) and Gianfranco Finizio (gfinizio@lowenstein.com) and Morris James LLP, 500 Delaware Avenue, Suite 1500, Wilmington, Delaware 19801, Attn: Eric J. Monzo (emonzo@morrisjames.com) and Brya M. Keilson (bkeilson@morrisjames.com);

 

d.

counsel to the Prepetition Agents, Pryor Cashman LLP, 7 Times Square, 40th Floor, New York, New York 10036, Attn: Seth H. Lieberman (slieberman@pryorcashman.com);

 

e.

counsel to the DIP Agent, Seward & Kissel LLP, One Battery Park Plaza, New York, NY 10004, Attn: Gregg Bateman (bateman@sewkis.com); and

 

f.

the Office of the United States Trustee, 844 King Street, Suite 2207, Lockbox 35, Wilmington, Delaware 19801, Attn: Jon Lipshie (jon.lipshie@usdoj.gov).

 

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 if you received an electronic version), please feel free to contact the Voting Agent by: (a) visiting, free of charge, https://www.veritaglobal.net/prosomnus, (b) calling the Debtors’ restructuring hotline at (888) 647-1744 (U.S./Canada) or (310) 751-2628 (International), or (c) email at ProSomnusInfo@kccllc.com. You may also obtain copies of any pleadings filed in these Chapter 11 Cases for a fee via PACER at: https://www.deb.uscourts.gov. Please be advised that the Voting 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 the Plan Supplement (as defined in the Plan) on or before July 19, 2024 at 4:00 p.m. (prevailing Eastern Time), 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 AND 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 IN THE CHAPTER 11 CASES, FAILED TO VOTE TO ACCEPT OR REJECT THE PLAN, OR VOTED TO REJECT THE PLAN.

 

 

 

Dated:	June 26, 2024	Respectfully submitted,
	Wilmington, Delaware
		POLSINELLI PC
		/s/ Shanti M. Katona
		Shanti M. Katona (Del. Bar No. 5352)
		Katherine M. Devanney (Del. Bar No. 6356)
		Michael V. DiPietro (Del. Bar No. 6781)
		222 Delaware Avenue, Suite 1101
		Wilmington, Delaware 19801
		Telephone: (302) 252-0920
		Facsimile: (302) 252-0921
		skatona@polsinelli.com
		kdevanney@polsinelli.com
		mdipietro@polsinelli.com
		-and-
		Mark B. Joachim (Admitted Pro Hac Vice)
		1401 Eye Street, N.W., Suite 800
		Washington, D.C. 20005
		Telephone: (202) 783-3300
		Facsimile: (202) 783-3535
		mjoachim@polsinelli.com
		Counsel to the Debtors and
		Debtors in Possession

 

 

v3.24.1.1.u2

Cover	Jun. 26, 2024
Document Information [Line Items]
Document Type	8-K
Amendment Flag	false
Document Period End Date	Jun. 26, 2024
Entity File Number	001-41567
Entity Registrant Name	ProSomnus, Inc.
Entity Central Index Key	0001934064
Entity Tax Identification Number	88-2978216
Entity Incorporation, State or Country Code	DE
Entity Address, Address Line One	5675 Gibraltar Drive
Entity Address, City or Town	Pleasanton
Entity Address, State or Province	CA
Entity Address, Postal Zip Code	94588
City Area Code	844
Local Phone Number	537-5337
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Entity Emerging Growth Company	true
Elected Not To Use the Extended Transition Period	false
Common Stock [Member]
Document Information [Line Items]
Title of 12(b) Security	Common Stock, par value $0.0001 per share
Trading Symbol	OSA
Security Exchange Name	NONE
Warrant [Member]
Document Information [Line Items]
Title of 12(b) Security	Warrants, each whole warrant exercisable for one share of Common Stock for $11.50 per share
Trading Symbol	OSAAW
Security Exchange Name	NONE

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