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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.
)
(Joint Administration Requested)
)
APPLICATION OF DEBTORS
FOR ENTRY OF AN ORDER (I) AUTHORIZING AND
APPROVING THE APPOINTMENT OF OMNI AGENT SOLUTIONS, INC.
AS CLAIMS AND NOTICING AGENT AND (II) GRANTING RELATED RELIEF
The above-captioned debtors and debtors in possession (collectively, the “Debtors” and,
each, a “Debtor”) state as follows in support of this application:2
Relief Requested
1.
The Debtors seek entry of an order, substantially in the form attached hereto as
Exhibit A (the “Order”): (a) appointing Omni Agent Solutions, Inc. (“Omni”) as claims and
noticing agent (“Claims and Noticing Agent”) for the Debtors in these chapter 11 cases, effective
as of the Petition Date, including assuming full responsibility for the distribution of notices and
the maintenance, processing, and docketing of proofs of claim filed in these chapter 11 cases; and
(b) granting related relief. In support of this application, the Debtors submit the Declaration of
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’
proposed
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
A detailed description of the Debtors and their business, including the facts and circumstances giving rise to the
Debtors’ chapter 11 cases, is set forth in the Declaration of John Bibb, Group Chief Executive Officer of Vyaire
Medical, Inc., in Support of Chapter 11 Filing and First Day Motions (the “First Day Declaration”), filed
contemporaneously herewith and incorporated by reference herein. Capitalized terms used but not otherwise
defined herein shall have the meanings ascribed to them in the First Day Declaration.
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Paul H. Deutch in Support of the Application of Debtors for Entry of an Order (I) Authorizing and
Approving the Appointment of Omni Agent Solutions, Inc. as Claims and Noticing Agent and
(II) Granting Related Relief (the “Deutch Declaration”), attached hereto as Exhibit B. The
Debtors’ selection of Omni to act as the Claims and Noticing Agent has satisfied the Claims Agent
Protocol (as defined below), in that the Debtors have obtained and reviewed engagement proposals
from at least two other court-approved claims and noticing agents to ensure selection through a
competitive process. Moreover, the Debtors submit, based on all engagement proposals obtained
and reviewed, that Omni’s rates are competitive and reasonable given Omni’s quality of services
and expertise. The terms of Omni’s retention are set forth in the engagement agreement attached
as Exhibit 1 to the Order (the “Engagement Agreement”); provided that Omni is seeking approval
solely of the terms and provisions as set forth in this application and the Order.
2.
By separate application, the Debtors will seek authorization to retain and employ
Omni as administrative agent in these chapter 11 cases pursuant to section 327(a) of
the Bankruptcy Code (as defined below) if the administration of these chapter 11 cases will require
Omni to perform duties outside the scope of 28 U.S.C. § 156(c).
Jurisdiction and Venue
3.
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 United States Bankruptcy Court
for the District of Delaware (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. The Debtors confirm their consent, pursuant to rule 9013-1(f) of the Local Rules of
Bankruptcy Practice and Procedure of the United States Bankruptcy Court for the District of
Delaware (the “Local Rules”), to the entry of a final order by the Court in connection with this
application to the extent that it is later determined that the Court, absent consent of the parties,
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cannot enter final orders or judgments in connection herewith consistent with Article III of the
United States Constitution.
4.
Venue is proper pursuant to 28 U.S.C. §§ 1408 and 1409.
5.
The statutory bases for the relief requested herein are sections 156(c) of title 28 of
the United States Code, section 503 of chapter 11 of title 11 of the United States Code, 11 U.S.C.
§§ 101–1532 (the “Bankruptcy Code”), rule 2002(f) of the Federal Rules of Bankruptcy Procedure
(the “Bankruptcy Rules”), Local Rules 2002-1(f) and 9013-1(m), and the Court’s Protocol for the
Employment of Claims and Noticing Agents Under 28 U.S.C. § 156(c), instituted by the Clerk of
the Court on February 1, 2012 (the “Claims Agent Protocol”).
Background
6.
Vyaire Medical, Inc., together with its direct and indirect subsidiaries (collectively,
“Vyaire” or the “Company”), is a global company focused on developing products and providing
related services for the diagnosis, treatment, and monitoring of various cardiology, pulmonology,
and respiratory health conditions. With a 70-year history of pioneering breathing technology, the
integrated solutions offered by the Company help enable, enhance, and extend lives.
Headquartered in Mettawa, Illinois, Vyaire operates approximately 27 offices and manufacturing
facilities, and employs approximately 950 individuals around the world. The Company has a
global reach, and Vyaire products are available in more than 100 countries. Its customers are the
hospitals, health centers, and private practice facilities delivering life-enhancing products and
services to patients every day.
7.
On June 9, 2024 (the “Petition Date”), Vyaire Medical, Inc. and certain of its
subsidiaries filed a voluntary petition for relief under chapter 11 of the Bankruptcy Code. The
Debtors are operating their business and managing their property as debtors in possession pursuant
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Bankruptcy Code. Concurrently with the filing of this application, the Debtors filed a motion
requesting procedural consolidation and joint administration of these chapter 11 cases pursuant to
Bankruptcy Rule 1015(b). No request for the appointment of a trustee or examiner has been made
in these chapter 11 cases, and no official committees have been appointed or designated.
Omni’s Qualifications
8.
Omni is comprised of leading industry professionals with significant experience in
the administrative aspects of large, complex chapter 11 cases. Omni’s professionals have
experience in noticing, claims administration, solicitation, balloting, and facilitating other
administrative aspects of these chapter 11 cases and experience in matters of this size and
complexity. Omni’s professionals have acted as debtors’ claims and noticing agent and/or
administrative agent in many large bankruptcy cases in this district and in other districts
nationwide, including: In re Never Slip Holdings, Inc., No. 24-10663 (LSS) (Bankr. D. Del.
Apr. 1, 2024); In re Sunlight Financial Holdings, Inc., No. 23-11794 (MFW) (Bankr. D. Del.
Nov. 1, 2023); In re UpHealth Holdings, Inc., No. 23-11476 (LSS) (Bankr. D. Del. Oct. 24, 2023);
In re Desolation Holdings, LLC, No. 23-10597 (BLS) (Bankr. D. Del. May 10, 2023); In re Lannett
Co., Inc., No. 23-10559 (JKS) (Bankr. D. Del. May 5, 2023); In re Lincoln Power, LLC,
No. 23-10382 (LSS) (Bankr. D. Del. Apr. 3, 2023); In re Independent Pet Partners Holdings, LLC,
No. 23-10153 (LSS) (Bankr. D. Del. Feb. 5, 2023); In re Performance Powersports Group
Investor, LLC, 23-10047 (LSS) (Bankr. D. Del. Jan. 18, 2023); In re Vesta Holdings, LLC,
No. 22-11019 (LSS) (Bankr. D. Del. Nov. 1, 2022); In re Kabbage, Inc. d/b/a KServicing,
No. 22-10951 (CTG) (Bankr. D. Del. Oct. 6, 2022); In re Gold Standard Baking, LLC,
No. 22-10559 (JKS) (Bankr. D. Del. June 23, 2022). Omni will follow procedures that conform
to applicable guidelines promulgated by the Clerk of the Court and the Judicial Conference, and
as may be entered by the Court’s order.
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9.
By appointing Omni as the Claims and Noticing Agent in these chapter 11 cases,
the distribution of notices and the processing of claims will be expedited, and the Office of the
Clerk of the United States Bankruptcy Court for the District of Delaware (the “Clerk’s Office”)
will be relieved of the administrative burden of processing proofs of claims, if any.
Services to Be Provided
10.
This application pertains only to the work to be performed by Omni under the
Clerk’s delegation of duties permitted by 28 U.S.C. § 156(c) and Local Rule 2002-1(f), and any
work to be performed by Omni outside of this scope is not covered by this application or by any
order granting approval hereof. Specifically, Omni will perform the following tasks in its role as
Claims and Noticing Agent, as well as all quality control relating thereto:
a.
prepare and serve required notices and documents in these chapter 11 cases
in accordance with the Bankruptcy Code and the Bankruptcy Rules in the
form and manner directed by the Debtors and/or the Court, including
(i) notice of the commencement of these chapter 11 cases and the initial
meeting of creditors, if any, under section 341(a) of the Bankruptcy Code,
(ii) notice of any claims bar date, if necessary, (iii) notices of transfers of
claims, (iv) notices of objections to claims and objections to transfers of
claims, (v) notices of any hearings on a disclosure statement or confirmation
of the Debtors’ chapter 11 plan, including under Bankruptcy Rule 3017(d),
(vi) notice of the effective date of any plan, and (vii) all other notices,
orders, pleadings, publications, and other documents as the Debtors or the
Court may deem necessary or appropriate for an orderly administration of
these chapter 11 cases;
b.
if necessary, maintain an official copy of the Debtors’ schedules of assets
and liabilities and statements of financial affairs (collectively,
the “Schedules”), listing the Debtors’ known creditors and the amounts
owed thereto;
c.
maintain (i) a list of all potential creditors, equity holders, and other parties
in interest, and (ii) a “core” mailing list consisting of all parties described
in Bankruptcy Rule 2002(i), (j), and (k) and those parties that have filed a
notice of appearance pursuant to Bankruptcy Rule 9010; and update and
make said lists available upon request by a party in interest or the Clerk’s
Office;
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d.
if necessary, furnish a notice to all potential creditors of the last date for
filing proofs of claim and, if necessary, a form for filing a proof of claim,
after such notice and form are approved by the Court, and notify said
potential creditors of the existence, amount, and classification of their
respective claims as set forth in the Schedules, which may be effected by
inclusion of such information (or the lack thereof, in cases where the
Schedules indicate no debt due to the subject party) on a customized proof
of claim form provided to potential creditors;
e.
maintain a post office box or address for the purpose of receiving claims
and returned mail, and process all mail received;
f.
for all notices, applications, orders, or other pleadings or documents served,
prepare and file or cause to be filed with the Clerk’s Office an affidavit or
certificate of service within seven business days of service which includes
(i) either a copy of the notice served or the docket number(s) and title(s) of
the pleading(s) served, (ii) a list of persons to whom it was served (in
alphabetical order) with their mailing or email addresses as appropriate,
(iii) the manner of service, and (iv) the date served;
g.
process all proofs of claim received, if any, including those received by the
Clerk’s Office, check processing for accuracy, and maintain the original
proofs of claim in a secure area;
h.
provide an electronic interface for filing proofs of claim;
i.
(i) maintain the official claims register for each Debtor (collectively,
the “Claims Registers”) on behalf of the Clerk’s Office on a case specific
website; (ii) upon the Clerk’s Office’s request, provide the Clerk’s Office
with certified, duplicate unofficial Claims Registers; and (iii) specify in the
Claims Registers the following information for each claim docketed:
(A) the claim number assigned, (B) the date received, (C) the name and
address of the claimant and agent, if applicable, who filed the claim,
(D) the amount asserted, (E) the asserted classification(s) of the claim
(e.g., secured, unsecured, priority, etc.), (F) the applicable Debtor, and
(G) any disposition of the claim;
j.
implement necessary security measures to ensure the completeness and
integrity of the Claims Registers, if any, and the safekeeping of the original
claims;
k.
record all transfers of claims and provide any notices of such transfers as
required by Bankruptcy Rule 3001(e);
l.
relocate, by messenger or overnight delivery, all of the proofs of claim filed
directly with the court to Omni’s offices, not less than weekly;
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m.
upon completion of the docketing process for all claims received to date for
each case, turn over to the Clerk’s Office copies of the Claims Registers for
the Clerk’s Office’s review (upon the Clerk’s Office’s request);
n.
monitor the Court’s docket for all notices of appearance, address changes,
and claims-related pleadings and orders filed and make necessary notations
on and/or changes to the Claims Registers and any service or mailing lists,
including to identify and eliminate duplicative names and addresses from
such lists;
o.
identify and correct any incomplete or incorrect addresses in any mailing or
service lists;
p.
assist in the dissemination of information to the public and respond to
requests for administrative information regarding these chapter 11 cases as
directed by the Debtors or the Court, including through the use of a case
website, and/or call center;
q.
if these chapter 11 cases are converted to cases under chapter 7 of the
Bankruptcy Code, contact the Clerk’s Office within three days of notice to
Omni of entry of the order converting these chapter 11 cases;
r.
30 days prior to the close of these chapter 11 cases, to the extent practicable,
request that the Debtors submit to the Court a proposed order dismissing
Omni and terminating the services of such agent upon completion of its
duties and responsibilities and upon the closing of these chapter 11 cases;
and
s.
within seven days of notice to Omni of entry of an order closing these
chapter 11 cases, provide to the Court the final version of the Claims
Registers as of the date immediately before the close of these chapter 11
cases.
11.
The Claims Registers shall be open to the public for examination without charge
during regular business hours and on a case-specific website maintained by Omni.
Professional Compensation
12.
The Debtors respectfully request that the undisputed fees and expenses incurred by
Omni in the performance of the above services be treated as administrative expenses of the
Debtors’ chapter 11 estates pursuant to 28 U.S.C. § 156(c) and section 503(b)(1)(A) of the
Bankruptcy Code and be paid in the ordinary course of business without further application to or
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order of the Court. Omni agrees to maintain records of all services showing dates, categories of
services, fees charged, and expenses incurred, and to serve monthly invoices on the Debtors, the
office of the United States Trustee, counsel for the Debtors, counsel for any official committee
monitoring the expenses of the Debtors, and any party-in-interest who specifically requests service
of the monthly invoices. If any dispute arises relating to the Engagement Agreement or monthly
invoices, the parties shall meet and confer in an attempt to resolve the dispute; if resolution is not
achieved, the parties may seek resolution of the matter from the Court.
13.
Prior to the Petition Date, the Debtors provided Omni a retainer in the amount of
$50,000. Omni seeks to hold the retainer under the Engagement Agreement during these
chapter 11 cases as security for the payment of fees and expenses incurred under the Engagement
Agreement.
Disinterestedness
14.
Although the Debtors do not propose to employ Omni under section 327 of the
Bankruptcy Code pursuant to this application (such retention will be sought by separate
application), Omni has nonetheless reviewed its electronic database to determine whether it has
any relationships with the creditors and parties in interest provided by the Debtors, and, to the best
of the Debtors’ knowledge, information, and belief, and except as disclosed in the Deutch
Declaration, Omni has represented that it neither holds nor represents any interest materially
adverse to the Debtors’ estates in connection with any matter on which it would be employed.
15.
Moreover, in connection with its retention as Claims and Noticing Agent, Omni
represents in the Deutch Declaration, among other things, that:
a.
Omni is not a creditor of the Debtors;
b.
Omni will not consider itself employed by the United States government
and shall not seek any compensation from the United States government in
its capacity as the Claims and Noticing Agent in these chapter 11 cases;
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c.
by accepting employment in these chapter 11 cases, Omni waives any rights
to receive compensation from the United States government in connection
with these chapter 11 cases;
d.
in its capacity as the Claims and Noticing Agent in these chapter 11 cases,
Omni will not be an agent of the United States and will not act on behalf of
the United States;
e.
Omni will not employ any past or present employees of the Debtors in
connection with its work as the Claims and Noticing Agent in these
chapter 11 cases;
f.
Omni is a “disinterested person” as that term is defined in section 101(14)
of the Bankruptcy Code with respect to the matters upon which it is
engaged;
g.
in its capacity as Claims and Noticing Agent in these chapter 11 cases,
Omni will not intentionally misrepresent any fact to any person;
h.
Omni shall be under the supervision and control of the Clerk’s Office with
respect to the receipt and recordation of claims and claim transfers;
i.
Omni will comply with all requests of the Clerk’s Office and the guidelines
promulgated by the Judicial Conference of the United States for the
implementation of 28 U.S.C. § 156(c); and
j.
none of the services provided by Omni as Claims and Noticing Agent in
these chapter 11 cases shall be at the expense of the Clerk’s Office.
16.
Omni will supplement its disclosure to the Court if any facts or circumstances are
discovered that would require such additional disclosure.
Compliance with Claims and Noticing Agent Protocol
17.
This application complies with the Claims Agent Protocol and substantially
conforms to the standard application in use in this Court. To the extent that there is any
inconsistency between this application, the Order and the Engagement Agreement, the Order shall
govern.
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Basis for Relief
18.
Section 156(c) of title 28 of the United States Code, which governs the staffing and
expenses of bankruptcy courts, authorizes the Court to use “facilities” or “services” other than the
Clerk’s Office for administration of bankruptcy cases. It states:
Any court may utilize facilities or services, either on or off the
court’s premises, which pertain to the provision of notices, dockets,
calendars, and other administrative information to parties in cases
filed under the provisions of title 11, United States Code, where the
costs of such facilities or services are paid for out of the assets of the
estate and are not charged to the United States. The utilization of
such facilities or services shall be subject to such conditions and
limitations as the pertinent circuit council may prescribe.
19.
In addition, Local Rule 2002-1(f) provides:
Upon motion of the debtor or trustee, at any time without notice or
hearing, the Court may authorize the retention of a notice and/or
claims clerk under 28 U.S.C. § 156(c). In all cases with more than
200 creditors or parties in interest listed on the creditor matrix,
unless the Court orders otherwise, the debtor shall file such motion
on the first day of the case or within seven (7) days thereafter.
The notice and/or claims clerk shall comply with the Protocol for
the Employment of Claims and Noticing Agents under 28 U.S.C.
§ 156(c) (which can be found on the Court’s website) and shall
perform the Claims and Noticing Services.
20.
In accordance with the Claims Agent Protocol, prior to the selection of Omni, the
Debtors reviewed and compared engagement proposals from three court-approved claims and
noticing agents, including Omni, to ensure selection through a competitive process. The Debtors
submit, based on the engagement proposals obtained and reviewed, that Omni’s rates are
competitive and reasonable given Omni’s quality of services and expertise. The terms of Omni’s
retention are set forth in the Engagement Agreement; provided that Omni is seeking by this
application approval solely of the terms and provisions as set forth in this application and the Order
as set forth in Exhibit 1 to the Order.
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Notice
21.
The Debtors will provide notice of this motion to: (a) the United States Trustee for
the District of Delaware; (b) the holders of the 30 largest unsecured claims against the Debtors
(on a consolidated basis); (c) the office of the attorney general for each of the states in which the
Debtors operate; (d) the United States Attorney’s Office for the District of Delaware;
(e) the Internal Revenue Service; (f) the United States Securities and Exchange Commission;
(g) counsel to the 1L Ad Hoc Group; (h) the agent of the DIP Facility and counsel thereto;
(i) the agent of the First Lien Credit Agreement and counsel thereto; (j) the Second Lien Credit
Agreement Agent and counsel thereto; (k) the agent of the First Lien Notes and counsel thereto;
and (l) any party that has requested notice pursuant to Bankruptcy Rule 2002. As this application
is seeking “first day” relief, the Debtors will serve copies of this application and any order entered
in respect to this application as required by Local Rule 9013-1(m). The Debtors submit that, in
light of the nature of the relief requested, no other or further notice need be given.
[Remainder of page intentionally left blank]
Case 24-11217-BLS Doc 4 Filed 06/10/24 Page 11 of 12
WHEREFORE, the Debtors request entry of the Order, substantially in the form attached
hereto as Exhibit A, (a) granting the relief requested herein and (b) granting such other relief as
the Court deems appropriate under the circumstances.
Dated: June 10, 2024
Wilmington, Delaware
/s/ Patrick J. Reilley
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. (pro hac vice admission pending)
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. (pro hac vice admission pending)
Warren A. Usatine, Esq (pro hac vice admission pending)
Spencer A. Winters, P.C. (pro hac vice admission pending)
Court Plaza North, 25 Main Street
Yusuf U. Salloum (pro hac vice admission pending)
Hackensack, New Jersey 07601
333 West Wolf Point Plaza
Telephone:
(201) 489-3000
Chicago, Illinois 60654
Facsimile:
(201) 489-1536
Telephone:
(312) 862-2000
Email:
msirota@coleschotz.com
Facsimile:
(312) 862-2200
wusatine@coleschotz.com
Email:
spencer.winters@kirkland.com
yusuf.salloum@kirkland.com
Proposed Co-Counsel to the Debtors
Proposed Co-Counsel to the Debtors
and Debtors in Possession
and Debtors in Possession
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