Proposed Order
- Date
- 2024-06-10
Summary
A proposed order filed June 10, 2024 as Exhibit A, Doc 4-1, in In re Vyaire Medical, Inc., et al., Case No. 24-11217, in the U.S. Bankruptcy Court for the District of Delaware. The proposed order would authorize the debtors to appoint Omni Agent Solutions, Inc. as claims and noticing agent under 28 U.S.C. § 156(c) and Local Rule 2002-1(f), effective as of the petition date. It directs Omni to administer proofs of claim, maintain claims registers and serve monthly invoices, treats its fees as an administrative expense, and limits the debtors' indemnification obligations. Exhibit 1 is Omni's Standard Services Agreement with Vyaire Medical, Inc., dated April 18, 2024, which includes a $10,000 discount on prepetition fees and a 2024 rate sheet. The filing is 20 pages.
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Case 24-11217-BLS Doc 4-1 Filed 06/10/24 Page 1 of 20
Exhibit A
Proposed Order
Case 24-11217-BLS Doc 4-1 Filed 06/10/24 Page 2 of 20
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)
) Re: Docket No. __
ORDER (I) AUTHORIZING AND APPROVING
THE APPOINTMENT OF OMNI AGENT SOLUTIONS, INC.
AS CLAIMS AND NOTICING AGENT AND (II) GRANTING RELATED RELIEF
Upon the application (the “Application”)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 (a) appoint Omni Agent Solutions, Inc. (“Omni”) as Claims and Noticing Agent to,
among other things, (i) distribute required notices to parties in interest, (ii) receive, maintain,
docket, and otherwise administer the proofs of claim filed in these chapter 11 cases, and
(iii) provide such other administrative services–as required by the Debtors–that would fall within
the purview of services to be provided by the Clerk’s Office, and (b) 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, dated
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 Capitalized terms used but not otherwise defined herein have the meanings ascribed to them in the Application.
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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 Application 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 Application 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 Application and opportunity for a hearing on the Application were
appropriate under the circumstances and no other notice need be provided; and this Court having
reviewed the Application 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 Application 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 Application is granted on a final basis as set forth herein.
2. Notwithstanding the terms of the Engagement Agreement attached as Exhibit 1,
the Order is granted solely as set forth in this Order and solely with respect to the Claims and
Noticing Services (as defined herein).
3. The Debtors are authorized, pursuant to 28 U.S.C. § 156(c) and Local
Rule 2002-1(f) to retain Omni as Claims and Noticing Agent, effective as of the Petition Date,
under the terms of the Engagement Agreement.
4. Omni is authorized and directed to perform noticing services and to receive,
maintain, record, and otherwise administer the proofs of claim filed in these chapter 11 cases
2
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(if any), and all related tasks, all as described in the Application (collectively, the “Claims and
Noticing Services”).
5. Omni shall serve as the custodian of court records and shall be designated as the
authorized repository for all proofs of claim (if any) filed in these chapter 11 cases and is
authorized and directed to maintain official claims registers for each of the Debtors and to provide
public access via a case website to every proof of claim (free of charge) unless otherwise ordered
by the Court, and to provide the Clerk with a certified duplicate thereof upon the request of the
Clerk (if necessary).
6. Omni is authorized and directed to provide an electronic interface for filing proofs
of claim and to obtain a post office box or address for the receipt of proofs of claim (if necessary).
7. Omni is authorized to take such other action to comply with all duties set forth in
the Application and this Order.
8. Omni shall comply with all requests of the Clerk and the guidelines promulgated
by the Judicial Conference of the United States for the implementation of 28 U.S.C. § 156(c).
9. The Debtors are authorized to compensate Omni in accordance with the terms of
the Engagement Agreement upon the receipt of reasonably detailed invoices setting forth the
services provided by Omni and the rates charged for each, and to reimburse Omni for all reasonable
and necessary expenses it may incur, upon the presentation of appropriate documentation, without
the need for Omni to file fee applications or otherwise seek this Court’s approval for the
compensation of its services and reimbursement of its expenses.
10. Omni shall maintain records of all services performed, showing dates, categories
of services, fees charged, and expenses incurred, and shall serve monthly invoices on (a) the
Debtors, (b) the Office of the United States Trustee for the District of Delaware, (c) counsel for
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the Debtors, (d) counsel for any official committee appointed in these chapter 11 cases, and any
party in interest who specifically requests service of the monthly invoices.
11. The parties shall meet and confer in an attempt to resolve any dispute which may
arise relating to the Engagement Agreement or monthly invoices and the parties may seek
resolution of such matter from this Court if resolution is not achieved.
12. Pursuant to section 503(b)(1)(A) of the Bankruptcy Code, the fees and expenses of
Omni under this Order shall be an administrative expense of the Debtors’ estates.
13. Omni may apply its retainer to all prepetition invoices, which retainer shall be
replenished to the original retainer amount, and thereafter, Omni may hold its retainer under the
Engagement Agreement during the chapter 11 cases as security for the payment of fees and
expenses incurred under the Engagement Agreement.
14. The Debtors shall indemnify each Indemnified Party (as defined in the Engagement
Agreement) under the terms of the Engagement Agreement, subject to the following modifications:
a. An Indemnified Party shall not be entitled to indemnification, contribution
or reimbursement pursuant to the Engagement Agreement for services other
than the services provided under the Engagement Agreement, unless such
services and the indemnification, contribution or reimbursement therefore
are approved by the Court;
b. Notwithstanding anything to the contrary in the Engagement Agreement,
the Debtors shall have no obligation to indemnify, or provide contribution
or reimbursement to, any Indemnified Party, for any claim or expense that
is either: (i) judicially determined (the determination having become final)
to have arisen from an Indemnified Party’s gross negligence, willful
misconduct, or fraud; (ii) for a contractual dispute in which the Debtors
allege the breach of an Indemnified Party’s contractual obligations if the
Court determines that indemnification contribution or reimbursement
would not be permissible pursuant to In re United Artists Theatre Co., 315
F.3d 217 (3d Cir. 2003); or (iii) settled prior to a judicial determination
under (i) or (ii), but determined by this Court, after notice and a hearing, to
be a claim or expense for which an Indemnified Party should not receive
indemnity, contribution, or reimbursement under the terms of the
Engagement Agreement as modified by this Order; and
4
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c. If, before the earlier of (i) the entry of an order confirming a chapter 11 plan
in these cases (that order having become a final order no longer subject to
appeal), or (ii) the entry of an order closing these cases, an Indemnified
Party believes that it is entitled to the payment of any amounts by the
Debtors on account of the Debtors’ indemnification, contribution and/or
reimbursement obligations under the Engagement Agreement (as modified
by this Order), including without limitation the advancement of defense
costs, an Indemnified Party must file an application therefor in this Court,
and the Debtors may not pay any such amounts to an Indemnified Party
before the entry of an order by this Court approving the payment. This
paragraph is intended only to specify the period of time under which the
Court shall have jurisdiction over any request for fees and expenses by an
Indemnified Party for indemnification, contribution or reimbursement, and
not a provision limiting the duration of the Debtors’ obligation to indemnify
an Indemnified Party. All parties-in-interest shall retain the right to object
to any demand by an Indemnified Party for indemnification, contribution,
or reimbursement.
15. In the event Omni is unable to provide the Claims and Noticing Services, Omni
will immediately notify the Clerk and the Debtors’ counsel and, upon approval of this Court, cause
to have all original proofs of claim and computer information turned over to another claims and
noticing agent with the advice and consent of the Clerk and the Debtors’ counsel and co-counsel.
16. The Debtors may submit a separate retention application, pursuant to
11 U.S.C. § 327 and/or any applicable law, for work that is to be performed by Omni but is not
specifically authorized by this Order.
17. Omni shall not cease providing claims processing services during these chapter 11
cases for any reason, including nonpayment, without an order of this Court.
18. In the event of any inconsistency between the Engagement Agreement, the
Application and this Order, this Order shall govern.
19. All time periods set forth in this Order shall be calculated in accordance with
Bankruptcy Rule 9006(a).
5
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20. Notice of the Application as provided therein shall be deemed good and sufficient
notice of such Application and the requirements of Bankruptcy Rule 6004(a) and the Local Rules
are satisfied by such notice.
21. Notwithstanding any Bankruptcy Rule to the contrary, the terms and conditions of
this Order are immediately effective and enforceable upon its entry.
22. The Debtors are authorized to take all actions necessary to effectuate the relief
granted in this Order in accordance with the Application.
23. This Court retains jurisdiction with respect to all matters arising from or related to
the implementation, interpretation, and enforcement of this Order.
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Exhibit 1
Engagement Agreement
Case 24-11217-BLS Doc 4-1 Filed 06/10/24 Page 9 of 20
Omni 4/18/24 (PHD)
STANDARD SERVICES AGREEMENT
This Agreement is entered into as of April 18, 2024, between (I) Omni Agent Solutions,
Inc (“Omni”), and (II) Vyaire Medical, Inc. (“VMI”), together with its affiliates and subsidiaries
listed on Schedule 1, annexed hereto (collectively with VMI, the “Companies”),1 in preparation
of, and in connection with, the Company’s potential chapter 11 cases. The parties agree as follows:
Terms and Conditions
I. SERVICES
(a) Upon request by the Companies or as may be necessary for Omni to comply with
applicable law, governmental regulation, court order or court rule, Omni shall provide the
Companies with consulting and administrative services (“Services”) in connection with the
Companies’ potential filing of chapter 11 petitions under the Bankruptcy Code (the “Code”)and
during any chapter 11 case(s) which the Companies may initiate. Without limitation, the Services
may include any or all of the following: Assisting in the preparation of the Companies’ bankruptcy
schedules and statements of financial affairs (“Schedules and SOFA”), noticing, communication
related services, claims management and reconciliation, plan solicitation, balloting and tabulation,
contract review, securities, claims analysis, providing confidential online workspaces or data
rooms (the publication of which shall not violate the confidentiality provisions of this Agreement),
account management, disbursements, automation, and any other service which may be agreed upon
by the parties.
(b) The Companies understand that to assist or enable Omni to provide the Services,
Omni will engage in communications with various persons acting on the Companies’ behalf (each,
a “Companies Party”).2 The parties agree that Omni may rely upon, and the Companies agree to
be bound by any requests, advice, or information provided by a Companies Party to the same extent
as if such requests, advice, or information were provided by the Companies.
(c) The Companies understand that Omni is not being retained to provide any legal or
financial advice and that none of Omni’s communications with a Companies Party or any other
party constitutes legal or financial advice.
II. RATES
(a) The Companies agree to pay Omni for all fees, charges and costs for Services
provided on their behalf in the amounts set forth in the schedule attached hereto as Exhibit “A”
1
Upon the filing of one or more chapter 11 petitions, the term “Companies” shall thereafter mean and include
each of the filing parties, in their individual capacities as debtors and debtors in possession, together with any other
entities whose chapter 11 cases are jointly administered with the filing parties’ case(s). Each of the Companies shall
be jointly and severally liable for all fees and costs incurred hereunder.
2
Unless otherwise agreed upon, a Companies Party includes the Companies’ managers, general partners,
officers, directors, employees, agents, representatives, counsel, consultants and/or any other party with whom the
Companies authorize to engage in a communication with Omni.
Case 24-11217-BLS Doc 4-1 Filed 06/10/24 Page 10 of 20
Omni 4/18/24 (PHD)
(the “Rate Schedule”). In addition to the foregoing, Omni has agreed to provide the Companies
with (i) a $10,000 discount on prepetition fees (contingent upon the filing of at least one of the
Companies’ chapter 11 cases), and (ii) a twenty (20%) percent discount on hourly rates. Omni
reserves the right from time to time to amend the Rate Schedule by increasing its hourly rates, unit
prices, and any other charges, fees, and costs therein during the term of this Agreement and that
upon so doing, the parties agree that the rates, prices, and other charges shall be effective
immediately and constitute the operative Rate Schedule.
(b) Omni may invoice the Companies monthly for the Services it provided during the
preceding calendar month consistent with the applicable Rate Schedule. All invoices are due and
payable upon receipt. Notwithstanding anything herein to the contrary, in the event the Companies
file one or more chapter 11 petitions, any payment made to Omni will be in accordance with
applicable bankruptcy law and orders of the bankruptcy court.
(c) If any amount is unpaid to Omni thirty (30) days from the date of the Companies’
receipt of an invoice, the Companies agree to pay a late charge calculated as one and one-half
percent (1-1/2%) of the total amount unpaid every thirty (30) days. In the case of a dispute of any
portion of an invoice, the Companies shall give written notice to Omni within ten (10) days of
receipt of the invoice as to the charges disputed and the basis thereof. The undisputed portion of
the invoice will remain due and payable immediately upon receipt, but late charges shall not accrue
on any amounts in dispute or any amounts unable to be paid due to Court order or applicable law.
At its sole discretion, Omni may first apply any payment received against the cumulative sum of
the late charges then due before it applies any remaining balance to the outstanding principal
balance
(d) Omni may require an advance or direct payment from the Companies of an
individual expense, or a group of related expenses, which are expected to exceed $7,500 (e.g.,
publication notice).
(e) The Companies shall pay or reimburse all taxes applicable to services performed
under this Agreement and, specifically, taxes based on disbursements made on behalf of the
Companies, notwithstanding how such taxes may be designated, levied, or based. This provision
is intended to include sales, use, and excise taxes, among other taxes, but is not intended to include
personal property taxes or taxes based on net income of Omni.
(f) The Companies shall pay to Omni all actual charges (including fees, costs and
expenses as set forth in the then effective Rate Structure) related to, arising out of, or resulting
from, any error or omission made by the Companies including, without limitation, print or copy
re-runs, supplies, long distance phone calls, travel expenses and overtime expenses for work
chargeable at the rates set forth in the Rate Structure
(g) Upon execution of this Agreement, the Companies shall pay Omni a retainer of
$50,000 (the “Retainer”). Omni may use the Retainer against all reasonable and documented
prepetition fees and expenses, which Retainer shall then be replenished as promptly as practicable
by the Companies to its original amount. At Omni’s discretion, the Retainer may then be applied
to the payment of the final invoice from Omni under and pursuant to this Agreement (the “Final
Invoice”), or to any other invoice. Except with respect to the Final Invoice, upon notice
Case 24-11217-BLS Doc 4-1 Filed 06/10/24 Page 11 of 20
Omni 4/18/24 (PHD)
from Omni to the Companies of the application of some or all of the Retainer, the Companies shall
replenish the Retainer as promptly as practicable to its original amount. Omni shall return to the
Companies any amount of the Retainer that remains following application of the Retainer to the
payments of unpaid fees and expenses hereunder.
(h) Payments to Omni for services rendered under the terms of this Agreement may be
remitted using either or both of the following methods:
(i) Wire Transmission
(Omni’s wire information will be included on each monthly invoice)
(ii) Check
Omni Agent Solutions
c/o Accounts Receivable
5955 De Soto Avenue
Suite 100
Woodland Hills, CA 91367
III. RETENTION
(a) The Agreement is effective immediately upon its execution by the parties;
provided, however, that it shall be subject to, if and when applicable, the terms of any order entered
approving the engagement of Omni by the Companies in the Companies’ chapter 11 proceeding(s).
(b) If the Companies commence one or more chapter 11 cases pursuant to the Code,
then as soon as is practicable, the Companies agree to and shall take all necessary actions to obtain
bankruptcy court approval to retain Omni as their claims and noticing agent pursuant to 28 U.S.C.
§ 156(c), and as its administrative agent pursuant to section 327(a) of the Code for all Services that
fall outside the scope of 28 U.S.C. § 156(c). The form and substance of any application concerning
Omni’s retention and any order setting forth its terms are subject to Omni’s approval which shall
not be unreasonably withheld. Notwithstanding any other provision of this Agreement, if the
bankruptcy court does not enter an order approving Omni’s retention pursuant to 28 U.S.C. §
156(c) or section 327 of the Code, this Agreement will be terminated effective immediately.
IV. TERM
(a) Except as provided herein, the Agreement will remain in effect until terminated:
(a) on a mutually agreed upon date as set forth in a writing executed by both parties; (b) on a date
of no less than thirty (30) days from the date written notice is provided by one party to the other;
(c) by the Client for cause (“Cause”) which, for purposes of this Agreement, shall mean that Omni
has acted in bad faith, with gross negligence, or engaged in willful misconduct that results in
material harm to the Companies’ effort and ability to restructure in their chapter 11 cases; or (d)
by Omni upon the Companies’ material breach of any term herein. If Omni’s engagement has been
already approved by the bankruptcy court, then Omni shall continue to perform the Services until
the entry of an order by the bankruptcy court, in a form and substance satisfactory to Omni, whose
consent will not be unreasonably withheld, providing for the terms and conditions of its discharge,
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Omni 4/18/24 (PHD)
including date of termination.
(b) Upon its termination, Omni shall provide the Companies with all materials Omni
is required to return to it under the terms of this Agreement as well as all in-process deliverables
in their then‐current state of completion for Services which Omni provided prior to the effective
date of the termination promptly after it has received payment in full of all sums attributable to
such Services, including for any Services which have then not yet been invoiced. Omni shall
coordinate with the Companies and, to the extent applicable, the clerk of the bankruptcy court, to
maintain an orderly transfer of record keeping functions, shall provide the necessary staff and
assistance required for an orderly transfer, and the Companies agree to pay all sums which may
become due in connection therewith. Without limiting the foregoing, upon the Companies’ written
request made at any time during the term of this Agreement, Omni shall deliver to the Companies
and/or the Companies’ retained professionals at the Companies’ sole expense any or all of the non-
proprietary data and records held by Omni pursuant to this Agreement, in the form requested by
the Companies.
V. CONFIDENTIALITY
Omni and the Companies, on behalf of themselves and on behalf of each Companies Party,
agree to keep confidential all non-public records, systems, procedures, software and other
information received from the other party in connection with the Services provided under this
Agreement (“Confidential Information”), except if any of such information: (a) is then or
thereafter becomes publicly available, other than by breach by the receiving party; (b) is already
in the receiving party’s possession or known to it and was received from a third party that, to the
knowledge of the receiving party, does not have a duty of confidentiality to the disclosing party;
(c) was independently developed; (d) is lawfully obtained from a third party who, to the knowledge
of the receiving party, does not have a duty of confidentiality to the disclosing party; or (e) is
subject to production or revelation pursuant to an order of any court, governmental agency or other
regulatory body, arbitrator or subpoena, it may, upon not less than ten (10) calendar days written
notice to the other party, release the required information.
VI. OMNI’S PROPERTY RIGHTS
(a) The parties understand and agree that any and all software programs or other
materials furnished by Omni pursuant to this Agreement or used by Omni to provide the Services
during the term of this Agreement (“Omni’s Property”) are Omni’s sole and exclusive property.
Without limiting the foregoing, Omni’s Property includes data processing programs,
specifications, applications, routines, documentation, ideas, concepts, know-how or techniques
relating to data processing or Omni’s performance of Services. Omni reserves the right to make
changes in operating procedure, operating systems, programming languages, general purpose
library programs, application programs, time of accessibility, types of terminals and other
equipment, and the Omni database serving the Companies, so long as any such changes do not
materially interfere with ongoing Services provided to the Companies in connection with the
Companies’ pending bankruptcy cases.
(b) The Companies acknowledge and agree that regardless of any sums it has been
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Omni 4/18/24 (PHD)
charged or has paid to Omni, it obtains no rights or ownership whatsoever in any of Omni’s
Property and that their use by the Companies is limited to enabling Omni to provide the Services
hereunder.
VII. BANK ACCOUNTS
At the request of the Companies, Omni is authorized to establish account(s) with financial
institutions in the name of and/or as agent for the Companies and to manage such account(s),
including to facilitate distributions pursuant to a chapter 11 plan or otherwise. Omni may receive
compensation from the institution at which an account is held pursuant to agreements between
Omni and such institutions.
VIII. COMPANIES’ DATA
(a) Without limiting any other provision of this Agreement, the Companies represent
and warrant to Omni that when a Companies Party provides information to Omni (a) the
Companies have all necessary authority to disclose it to Omni and that Omni is fully authorized to
use it in connection with its performance of the Services; (b) that the information is materially
accurate and complete to the best of the Companies’ knowledge at the time of such
communication(s); and (c) that Omni has no responsibility whatsoever to verify or otherwise
independently confirm the accuracy or completeness of any information, programs, data or
instructions it is provided including, without limitation, data it receives in connection with the
preparation of the Companies’ Schedules and SOFAs. The Companies agree that they shall be
deemed to have reviewed and approved any and all Schedules and SOFAs which are filed on their
behalf.
(b) Without limiting any other provision of this Agreement, the Companies understand
and agree that all data, storage media, programs or other materials which are furnished to Omni on
its behalf (the “Companies’ Data”) may be retained by Omni until full payment has been made to
Omni for all of its Services and that they shall remain liable to Omni for all fees and expenses
thereafter charged by Omni for maintaining, storing or disposing of any or all of it. Omni agrees
that it will dispose of the Companies’ Data in a manner requested by or acceptable to the
Companies; provided, however, that if Omni has not provided Services to the Companies for a
period of ninety (90) days and provides no less than thirty (30) days written notice, Omni may
dispose of any or all of the Companies’ Data in any commercially reasonable at the Companies’
sole expense. The Companies agree to use commercially reasonable efforts to initiate and maintain
backup files that would allow the Companies to regenerate or duplicate all programs, data or
information which is provided on their behalf to Omni.
(c) If Omni is retained pursuant to bankruptcy court order, disposal of any of the
Companies’ Data shall comply with any applicable court orders and rules or clerk’s office
instructions.
IX. NO REPRESENTATIONS OR WARRANTIES
Omni makes no representations or warranties, express or implied, including, without
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Omni 4/18/24 (PHD)
limitation, any express or implied warranty of merchantability, fitness or adequacy for a particular
purpose or use, quality, productiveness, or capacity. Notwithstanding the foregoing, if the above
disclaimer is not enforceable under applicable law, such disclaimer will be construed by limiting
its enforceability to the extent compatible with applicable law.
X. INDEMNIFICATION
(a) To the fullest extent permitted by applicable law, the Companies shall indemnify
and hold harmless Omni and its members, directors, officers, employees, representatives, affiliates,
consultants, subcontractors and agents (each, an “Indemnified Party,” and collectively, the
“Indemnified Parties”) from and against any and all losses, claims, damages, judgments,
liabilities and expenses, whether direct or indirect (including, without limitation, counsel fees and
expenses) (collectively, “Losses”) resulting from, arising out of or related to Omni’s performance
hereunder. Without limiting the generality of the foregoing, Losses include any liabilities resulting
from claims by any third parties against any Indemnified Party.
(b) Omni and the Companies shall provide notice to the other in writing promptly upon
the assertion, threat or commencement of any claim, action, investigation or proceeding that either
party becomes aware of with respect to the services provided under and pursuant to the Agreement.
(c) The Companies’ indemnification of Omni hereunder shall exclude Losses resulting
from Omni’s gross negligence or willful misconduct.
(d) The Companies’ indemnification obligations hereunder shall survive the
termination of this Agreement.
XI. LIMITATIONS OF LIABILITY
Except as expressly provided herein, Omni’s liability to the Companies for any Losses,
unless due to Omni’s gross negligence or willful misconduct, shall be limited to the total amount
paid by the Companies for the portion of the particular specific task or expense of the Service that
gave rise to the alleged Loss. In no event shall Omni’s liability to the Companies for any Losses
arising out of this Agreement exceed the total amount actually paid to Omni for services provided
under and pursuant to this Agreement. Moreover, in no event shall Omni be liable for any indirect,
special, or consequential damages (such as loss of anticipated profits or other economic loss) in
connection with or arising out of the services provided under and pursuant to this Agreement.
XII. GENERAL
(a) Each party acknowledges that authorized person(s) on its behalf have read
Agreement, understands it, and agrees to be bound by its terms. Each party further agrees that it is
the complete and exclusive statement of the agreement between the parties, which supersedes and
merges all prior proposals, understandings, agreements, and communications between the parties
relating to the subject matter hereof.
(b) If any provision of this Agreement shall be held to be invalid, illegal, or
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unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way
be affected or impaired thereby.
(c) This Agreement may be modified only by a writing duly executed by a Companies
Party, on behalf of the Companies, and an officer of Omni.
(d) This Agreement and the rights and duties hereunder shall not be assignable by the
parties hereto except upon written consent of the other; provided, however, that either party may
assign this Agreement to a wholly‐owned subsidiary or affiliate or to an entity which has succeeded
to all or substantially all of the business or assets of a party without the other party’s consent,
provided that the assigning party provides adequate assurance of performance by the proposed
assignee.
(e) This Agreement may be executed in two or more counterparts, each of which will
be deemed an original, but all of which shall constitute one and the same agreement. This
Agreement will become effective when one or more counterparts have been signed by each of the
parties and delivered to the other party, which delivery may be made by exchange of copies of the
signature page by fax or email.
(f) Whenever performance by Omni of any of its obligations hereunder is materially
prevented or impacted by reason of any act of God, government requirement, strike, lock‐out or
other industrial or transportation disturbance, fire, flood, epidemic, lack of materials, law,
regulation or ordinance, act of terrorism, war or war condition, or by reason of any other matter
beyond Omni’s reasonable control, then such performance shall be excused, and this Agreement
shall be deemed suspended during the continuation of such prevention and for a reasonable time
thereafter.
(g) The Companies will use their best efforts to cooperate with Omni at the Companies’
facilities if any portion of the Services require Omni’s physical presence.
(h) Each party agrees that neither it nor any of its subsidiaries shall directly or indirectly
solicit for employment, employ or otherwise retain as employees, consultants or otherwise, any
employees of the other party during the term of this Agreement and for a period of six (6) months
after termination thereof unless the other party provides prior written consent to such solicitation
or retention; provided, however, that the foregoing provisions will not prevent either party from
hiring or seeking to hire any such person who responds to general advertising or a general
solicitation not targeted to the employees of the other party.
(i) The Companies and Omni are and shall be independent contractors of each other
and no agency, partnership, joint venture, or employment relationship shall arise, directly or
indirectly, as a result of this Agreement.
(j) The language used in this Agreement will be deemed to be the language chosen by
the Companies and Omni to express their mutual intent, and no rule of strict construction will be
applied against either party.
Case 24-11217-BLS Doc 4-1 Filed 06/10/24 Page 16 of 20
Omni 4/18/24 (PHD)
(k) In the event that any arbitration legal action, including an action for declaratory
relief, is brought to enforce the performance or interpret the provisions of this Agreement, the
parties agree that the prevailing party is entitled to be paid all of its reasonable attorneys’ fees,
court costs, and any other expense reasonably related thereto in the amount which may be set by
the court or by an arbitrator, whether in the same action or in a separate action brought for the
purpose of establishing such amount, in addition to any other relief to which the prevailing party
may be entitled.
(l) The validity, enforceability and performance of this Agreement shall be governed
by and construed in accordance with the laws of the State of New York.
(m) Any dispute arising out of or relating to this Agreement, or the breach thereof shall
be finally resolved by arbitration administered by the American Arbitration Association under its
Commercial Arbitration Rules, and judgment upon the award rendered by the arbitrator may be
entered in any court having jurisdiction. There shall be one arbitrator named in accordance with
such rules. The arbitration shall be conducted in the English language in New York in accordance
with the United States Arbitration Act. Notwithstanding the foregoing, during the pendency of any
applicable chapter 11 case(s) of the Companies, any disputes related to this Agreement shall be
decided by the bankruptcy court with jurisdiction over the chapter 11 case(s).
(n) Omni reserves the right to make changes in operating procedures, operating
systems, programming languages, general purpose library programs, application programs, time
periods of accessibility, types of terminals and other equipment, and the Omni database serving
the Companies, so long as any such changes do not materially interfere with ongoing Services
provided to the Companies in connection with the Companies’ pending bankruptcy case(s).
(o) All headings used in this Agreement are for convenience of reference only, are not
part of this Agreement and shall not affect the construction of, or be taken into consideration in
interpreting, this Agreement.
XIII. NOTICING
All notices and requests in connection with this Agreement shall be sufficiently given or
made if given or made in writing via hand delivery, overnight courier, U.S. Mail (postage prepaid)
or email, and addressed as follows:
If to Omni: Omni Agent Solutions, Inc.
5955 De Soto Avenue
Suite 100
Woodland Hills, CA 91367
Tel: (818) 906-8300
Attn: Brian K. Osborne, Pres. & CEO
Email: Bosborne@omniagnt.com
Case 24-11217-BLS Doc 4-1 Filed 06/10/24 Page 17 of 20
Omni 4/18/24 (PHD)
SCHEDULE
“1”
Bird Products Corporation
Breathe US Holdco, Inc.
Breathe US Holdings LP
CareFusion U.K. 232 Limited
CareFusion U.K. 235 Limited
EME Medical, Inc.
Intermed Equipamento Medico Hospitalar LTDA
Revolutionary Medical Devices, Inc.
SensorMedics Corporation
VIASYS Holdings Inc.
Vyaire Company
Vyaire Finance B.V.
Vyaire Holding Company
Vyaire Medical 202, INC.
Vyaire Medical 203, Inc.
Vyaire Medical 205, Inc.
Vyaire Medical 206, Inc.
Vyaire Medical 211, Inc.
Vyaire Medical BR LLC
Vyaire Medical Capital LLC
Vyaire Medical Consumables LLC
Vyaire Medical Cooperatief U.A.
Vyaire Medical GmbH
Vyaire Medical International LLC
Vyaire Medical LLC
Vyaire Medical Payroll LLC
Vyaire Medical S.r.l.
Vyaire Medical, Inc.
Vyaire Respiratory Diagnostics LLC
Case 24-11217-BLS Doc 4-1 Filed 06/10/24 Page 18 of 20
Omni 4/18/24 (PHD)
EXHIBIT
“A”
Case 24-11217-BLS Doc 4-1 Filed 06/10/24 Page 19 of 20
2024 Rate Sheet
Hourly Rates for Standard and Custom Informational Website RATE / COST
RATE / COST
Services* Creation, Configuration and Initial Setup No charge
Analyst $40.00 - $75.00 per hour Data Entry / Information Updates Standard hourly rates apply
Consultants $75.00 - $195.00 per hour Programming and Customization $85 - $155 per hour
Senior Consultants $200.00 - $240.00 per hour Debtor Website Hosting No charge
Solicitation and Securities Consultant $200-225.00 per hour Committee Website Hosting No charge
Director of Solictation and Securities $250.00 per hour Shareholder Website Hosting No charge
Treasury Services Quoted upon request Scanning $0.10 per image
Technology/Programming $85.00 - $155.00 per hour
Public Debt and Equities Securities and/Rights
Claims Management RATE / COST RATE / COST
Offerings Services
Hourly rates
Inputting Proofs of Claim Noticing Services Standard hourly rates apply
(No per claim charges)
Solicitation, Balloting and Tabulation Standard hourly rates apply
Scanning $.10 per image
Rights Offerings Standard hourly rates apply
Remote Internet access for claims management
Security Position Identification Reports Standard hourly rates apply
Setup No charge
Access No charge
Liquidating / Disbursing Agent RATE / COST
Schedules / SoFA RATE / COST Comply with Plan requirements, preparation of
disbursement reports, payout calculations, check Standard hourly rates apply
Preparation and updating of schedules and SoFAs $65.00 - $240.00 per hour generation, bank reconciliations
Solicitation and Tabulation RATE / COST
Plan and disclosure statement mailings Quoted prior to printing
Ballot tabulation Standard hourly rates apply
*Additional professional services not covered by this rate structure will be charged at hourly rates, including any outsourced services performed under our supervision and control.
Case 24-11217-BLS Doc 4-1 Filed 06/10/24 Page 20 of 20
2024 Rate Sheet
Printing and Noticing Services RATE / COST Electronic Services, Storage & Security RATE / COST
Copy $.10 per image License Fee and System Maintenance .10 per Record
Document folding and insertion No charge Per image storage No charge
Labels/Envelope printing $.035 each Monthly Encryption Bandwidth and Security
.10 per MB
Compliance Charges**
MSL E-mail noticing No charge
Automated Services .10 per process
High Volume or Certified E-mail Noticing TBD per volume
Facsímile Noticing $.10 per image
Virtual Data Rooms Quote upon request
At cost
Postage (Advance payment required for postage
charges over $10,000)
Miscellaneous RATE / COST
Envelopes Varies by size
Telephone charges At cost
Delivery At cost
Newspaper and Legal Notice Publishing RATE / COST
Archival DVD/CD-Rom $40.00 per copy
Coordinate and publish legal notice Quote prior to publishing
Call Centers / Dedicated Line RATE / COST
Creation, configuration and initial setup No charge
Hosting fee $20.00 per Month
Usage $.0825 per Minute
Call center personnel Standard Hourly Rates
UST Reporting Compliance RATE / COST
Assist debtors to satisfy jurisdicational
requirements, preparation of monthly operating Standard hourly rates apply
and post-confirmation reports
** Charges relate to secure, bidirectional encryption of web-based documents and telephony, as well as secure storage of case records, documents and related files based on volume
File and source
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- gov.uscourts.deb.193283.4.1.pdf
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