VYR - OCP Motion Proposed Filing Version — In re Vyaire Medical, Inc., et al., Case No. 24-11217 (BLS) (jointly administered)

Source document: VYR - OCP Motion Proposed Filing Version; document type: Proposed order (OCP retention/compensation).

Full text

Exhibit A
Proposed Order
Case 24-11217-BLS    Doc 119-2    Filed 06/25/24    Page 1 of 14

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 (BLS)
)
Debtors.
)
(Jointly Administered)
)
)
Re: Docket No. ___
ORDER (I) AUTHORIZING THE DEBTORS TO
RETAIN AND COMPENSATE PROFESSIONALS UTILIZED IN THE
ORDINARY COURSE OF BUSINESS AND (II) GRANTING RELATED RELIEF
Upon the motion (the “Motion”)2 of the above-captioned debtors and debtors in possession
(collectively, the “Debtors”) for entry of an order (this “Order”) (a) authorizing, but not directing,
the Debtors to retain and compensate professionals utilized in the ordinary course of business and
(b) granting related relief, all as more fully set forth in the Motion; 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
February 29, 2012; and this Court having found that this is a core proceeding pursuant to 28 U.S.C.
§ 157(b)(2); and this Court having found that this Court may enter a final order consistent with
Article III of the United States Constitution; and this Court having found that venue of this
proceeding and the Motion in this district is proper pursuant to 28 U.S.C. §§ 1408 and 1409; and
1
The last four digits of Debtor Vyaire Medical, Inc.’s federal tax identification number are 6495.  A complete list
of each of the Debtors in these chapter 11 cases and each such Debtor’s federal tax identification number may be
obtained on the website of the Debtors’ claims and noticing agent at https://omniagentsolutions.com/Vyaire.  The
location of Debtor Vyaire Medical, Inc.’s principal place of business and the Debtors’ service address in these
chapter 11 cases is 26125 North Riverwoods Boulevard, Mettawa, Illinois, USA 60045.
2
Capitalized terms used but not otherwise defined herein have the meanings ascribed to them in the Motion.
Case 24-11217-BLS    Doc 119-2    Filed 06/25/24    Page 2 of 14

2
this Court having found that the relief requested in the Motion is in the best interests of the Debtors’
estates, their creditors, and other parties in interest; and this Court having found that the Debtors’
notice of the Motion and opportunity for a hearing on the Motion were appropriate and no other
notice need be provided; and this Court having reviewed the Motion and having heard the
statements in support of the relief requested therein at a hearing before this Court (the “Hearing”);
and this Court having determined that the legal and factual bases set forth in the Motion and at the
Hearing establish just cause for the relief granted herein; and upon all of the proceedings had
before this Court; and after due deliberation and sufficient cause appearing therefor, it is HEREBY
ORDERED THAT:
1.
The Motion is granted as set forth herein.
2.
The Debtors are authorized, but not directed, to retain and compensate the
professionals identified on the OCP List (collectively, the “OCPs”), attached hereto as Schedule 1,
Schedule 2, and Schedule 3, in the ordinary course of business pursuant to the following OCP
Procedures:
a.
Within 30 days after the later of (i) the date of entry of the Order or (ii) the date
on which an OCP commences work for the Debtors, such OCP shall file, or
cause to be filed, a declaration of disinterestedness, substantially in the form
attached hereto as Exhibit 1 (each, a “Declaration of Disinterestedness”), with
the Court and served upon:  (a) the Debtors, 26125 North Riverwoods
Boulevard,
Mettawa,
Illinois,
USA
60045,
Attn.:
Charles
Braley
(cbraley@alixpartners.com);
(b) proposed
co-counsel
to
the
Debtors
(i) Kirkland & Ellis LLP, 601 Lexington Avenue, New York, New York 10022,
Attn.: Joshua A. Sussberg, P.C. (joshua.sussberg@kirkland.com) and Chris
Ceresa (chris.ceresa@kirkland.com), (ii) Kirkland & Ellis LLP, 333 West Wolf
Point Plaza, Chicago, Illinois, 60654, Attn.: Spencer A. Winters
(spencer.winters@kirkland.com),
Yusuf
U.
Salloum
(yusuf.salloum@kirkland.com),
and
Rebecca
Marston
(rebecca.marston@kirkland.com), (iii) Cole Schotz P.C., 500 Delaware
Avenue, Suite 1410, Wilmington, Delaware 19801, Attn.: Patrick J. Reilley,
Esq.
(preilley@coleschotz.com),
Stacy
L.
Newman
(snewman@coleschotz.com),
Michael
E.
Fitzpatrick,
Esq.
(mfitzpatrick@coleschotz.com),
and
Jack
M.
Dougherty,
Esq.
Case 24-11217-BLS    Doc 119-2    Filed 06/25/24    Page 3 of 14

3
(jdougherty@coleschotz.com), and (iv) Cole Schotz P.C., Court Plaza North,
25 Main Street, Hackensack, New Jersey 07601, Attn.: Michael D. Sirota, Esq.
(msirota@coleschotz.com)
and
Warren
A.
Usatine,
Esq.
(wusatine@coleschotz.com); (c) counsel to the 1L Ad Hoc Group, (i) Gibson,
Dunn & Crutcher LLP, 200 Park Avenue, New York, NY 10166-0193,
Attn.:  Scott J. Greenberg (SGreenberg@gibsondunn.com), Jason Zachary
Goldstein
(JGoldstein@gibsondunn.com),
Joshua
Brody
(JBrody@gibsondunn.com), and Kevin Liang (KLiang@gibsondunn.com) and
(ii) Pachulski Stang Ziehl & Jones LLP, 919 North Market Street, 17th Floor,
Wilmington, DE 19801, Attn.: Laura Davis Jones (ljones@pszjlaw.com) and
Timothy P. Cairns (tcairns@pszjlaw.com); (d) the United States Trustee, 844
King Street, Suite 2207, Lockbox 35, Wilmington, Delaware 19801, Attn.:
Benjamin A. Hackman (Benjamin.A.Hackman@usdoj.gov); and (e) counsel to
any statutory committee appointed in these chapter 11 cases (collectively,
the “Notice Parties”).
b. The Notice Parties shall have 14 days after the date of filing of each OCP’s
Declaration of Disinterestedness (the “Objection Deadline”) to object to the
retention of such OCP.  The objecting party shall file any such objection and
serve such objection upon the Notice Parties and the respective OCP on or
before the Objection Deadline.  If any such objection cannot be resolved within
14 days of its receipt, the matter shall be scheduled for hearing before the Court
at the next regularly scheduled omnibus hearing date that is no less than 14 days
from that date or on a date otherwise agreeable to the parties.  The Debtors shall
not be authorized to retain and compensate such OCP until all outstanding
objections have been withdrawn, resolved, or overruled by order of the Court.
c.
If no objection is received from any of the Notice Parties by the Objection
Deadline with respect to any particular OCP, the Debtors shall be authorized,
but not directed, to:  (i) retain such OCP as of the date such OCP commenced
providing services to the Debtors and (ii) compensate such OCP as set forth
below.
d. The Debtors are authorized, but not directed, to pay, without formal application
to the Court by any OCP, 100% of fees and disbursements to each of the OCPs
retained by the Debtors pursuant to the OCP Procedures upon submission to the
Debtors of an appropriate invoice setting forth in reasonable detail the nature of
the services rendered after the Petition Date; provided that fees paid to each
OCP set forth on Schedule 1 attached hereto, excluding costs and
disbursements, may not exceed $50,000 per month per OCP, calculated as an
average over a rolling three-month period, while these chapter 11 cases are
pending (the “Tier 1 OCP Monthly Cap”) and the fees of each OCP set forth in
Schedule 2 attached hereto, excluding costs and disbursements, may not exceed
$25,000 per month per OCP, calculated as an average over a rolling
three-month period, while these chapter 11 cases are pending (the “Tier 2 OCP
Monthly Cap”) and the fees of each OCP set forth in Schedule 3 attached
hereto, excluding costs and disbursements, may not exceed $15,000 per month
Case 24-11217-BLS    Doc 119-2    Filed 06/25/24    Page 4 of 14

4
per OCP, calculated as an average over a rolling three-month period, while
these chapter 11 cases are pending (the “Tier 3 OCP Monthly Cap”); provided,
further, that the total amount disbursed per quarter, for each OCP set forth on
Schedule 1 attached hereto, does not exceed $150,000 per OCP (the “Tier 1
OCP Quarterly Cap”) and the total amount disbursed per quarter, for each OCP
set forth on Schedule 2 attached hereto, does not exceed $75,000 per OCP
(the “Tier 2 OCP Quarterly Cap”) and the total amount disbursed per quarter,
for each OCP set forth on Schedule 3 attached hereto, does not exceed $45,000
per OCP (the “Tier 3 OCP Quarterly Cap” and, together with the Tier 1 OCP
Monthly Cap, Tier 1 OCP Quarterly Cap, Tier 2 OCP Monthly Cap, Tier 2 OCP
Quarterly Cap, and Tier 3 Monthly Cap, the “OCP Caps”).  The OCP Caps may
be increased by mutual agreement between the Debtors, the U.S. Trustee, the
DIP Agent (acting at the direction of the required lenders under and pursuant to
the DIP Credit Agreement), and counsel to any statutory committee appointed
in these chapter 11 cases; provided that the Debtors shall file a notice with the
Court and submit notice to the Notice Parties of any such agreed increase.
e.
To the extent that fees payable to any OCP exceed the applicable OCP Cap, the
OCP shall file a fee application (a “Fee Application”) with the Court for the
amount in excess of the applicable OCP Cap pursuant to sections 330 and 331
of the Bankruptcy Code, the Bankruptcy Rules, the Local Rules, the fee
guidelines promulgated by the Office of the United States Trustee, and any
applicable orders of the Court, unless the United States Trustee agrees
otherwise.
f.
Beginning on the quarter ending September 30, 2024, and for each quarter
thereafter during which these chapter 11 cases are pending, the Debtors shall,
within thirty days thereof, file with the Court and serve on the Notice Parties a
statement with respect to each OCP paid during the immediately preceding
quarterly period (the “Quarterly Statement”).  Each Quarterly Statement shall
include:  (i) the name of the OCP; (ii) the aggregate amounts paid as
compensation for services rendered and reimbursement of expenses incurred by
that OCP during the reported quarter; and (iii) a general description of the
services rendered by that OCP.
g. The Debtors reserve the right to retain additional OCPs from time to time during
these chapter 11 cases by including such OCPs on an amended version of the
OCP List that is filed with the Court and served on the Notice Parties and having
such OCPs comply with the OCP Procedures.
3.
The Debtors are authorized, but not directed, to supplement the OCP List as
necessary to add or remove OCPs, from time to time without the need for any further hearing and
without the need to file individual retention applications for newly added OCPs, provided that the
fees paid to any additional OCPs do not exceed the OCP Caps.  The Debtors shall file any amended
Case 24-11217-BLS    Doc 119-2    Filed 06/25/24    Page 5 of 14

5
OCP List with this Court and serve such list on the Notice Parties.  Each additional OCP listed in
the OCP List shall file with this Court and serve a Declaration of Disinterestedness on the Notice
Parties as provided in the OCP Procedures.  If no objections are filed within 14 days to any such
additional OCP’s Declaration of Disinterestedness, then retention of such OCPs shall be deemed
approved by this Court pursuant to this Order without a hearing or further order.
4.
Nothing contained herein shall affect the Debtors’ or any appropriate party in
interest’s ability to dispute any invoice submitted by an OCP, and nothing contained herein shall
preclude the Debtors from seeking authority to pay any OCP in an amount greater than the OCP
Caps, subject to the rights of any party in interest to oppose any such request.  Nothing in this
Order shall be deemed to authorize the Debtors to pay prepetition claims of any non-attorney OCP.
5.
This Order shall not apply to any professional retained by the Debtors pursuant to
a separate order of the Court.
6.
Nothing contained in the Motion or this Order, and no action taken pursuant to the
relief requested or granted (including any payment made in accordance with this Order), is
intended as or shall be construed or deemed to be:  (a) an admission as to the amount, validity or
priority of, or basis for any claim against the Debtors under the Bankruptcy Code or other
applicable nonbankruptcy law; (b) a waiver of the Debtors’ or any other party in interest’s right to
dispute any claim on any grounds; (c) a promise or requirement to pay any particular claim;
(d) an implication, admission, or finding that any particular claim is an administrative expense
claim, other priority claim, or otherwise of a type specified or defined in the Motion or this Order;
(e) a request or authorization to assume, adopt, or reject any agreement, contract, or lease pursuant
to section 365 of the Bankruptcy Code; (f) an admission as to the validity, priority, enforceability,
or perfection of any lien on, security interest in, or other encumbrance on property of the Debtors’
Case 24-11217-BLS    Doc 119-2    Filed 06/25/24    Page 6 of 14

6
estates; or (g) a waiver or limitation of any claims, causes of action, or other rights of the Debtors
or any other party in interest against any person or entity under the Bankruptcy Code or any other
applicable law.
7.
Notice of the Motion as provided therein shall be deemed good and sufficient notice
of such Motion and the requirements of Bankruptcy Rule 6004(a), and the Local Rules are satisfied
by such notice.
8.
Notwithstanding Bankruptcy Rule 6004(h), the terms and conditions of this Order
are immediately effective and enforceable upon its entry.
9.
The Debtors are authorized to take all actions necessary to effectuate the relief
granted in this Order in accordance with the Motion.
10.
This Court retains jurisdiction with respect to all matters arising from or related to
the implementation, interpretation, and enforcement of this Order.
Case 24-11217-BLS    Doc 119-2    Filed 06/25/24    Page 7 of 14

Exhibit 1
Form of Declaration of Disinterestedness
Case 24-11217-BLS    Doc 119-2    Filed 06/25/24    Page 8 of 14

IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
)
In re:
)
Chapter 11
)
VYAIRE MEDICAL, INC., et al.,1
)
Case No. 24-11217 (___)
)
Debtors.
)
(Jointly Administered)
)
Re:  Docket No. __
DECLARATION OF DISINTERESTEDNESS
OF [ENTITY] PURSUANT TO THE ORDER
AUTHORIZING THE DEBTORS TO RETAIN AND COMPENSATE
PROFESSIONALS UTILIZED IN THE ORDINARY COURSE OF BUSINESS
I, [NAME], declare under penalty of perjury:
1.
I am a [POSITION] of [ENTITY], located at [STREET, CITY, STATE, ZIP
CODE] (the “Firm”).
2.
Vyaire Medical, Inc. and certain of its affiliates, as debtors and debtors in
possession (collectively, the “Debtors”), have requested that the Firm provide [SPECIFIC
DESCRIPTION] services to the Debtors, and the Firm has consented to provide such services.
3.
The Firm may have performed services in the past, may currently perform services,
and may perform services in the future in matters unrelated to these chapter 11 cases for persons
that are parties in interest in the Debtors’ chapter 11 cases.  The Firm does not, however, perform
services for any such person relating to these chapter 11 cases, or have any relationship with any
such person, their attorneys, or their accountants that would be adverse to the Debtors or their
estates.
1
The last four digits of Debtor Vyaire Medical, Inc.’s federal tax identification number are 6495.  A complete list
of each of the Debtors in these chapter 11 cases and each such Debtor’s federal tax identification number may be
obtained on the website of the Debtors’ claims and noticing agent at https://omniagentsolutions.com/Vyaire.  The
location of Debtor Vyaire Medical, Inc.’s principal place of business and the Debtors’ service address in these
chapter 11 cases is 26125 North Riverwoods Boulevard, Mettawa, Illinois, USA 60045.
Case 24-11217-BLS    Doc 119-2    Filed 06/25/24    Page 9 of 14

2
4.
As part of its customary practice, the Firm is retained in cases, proceedings, and
transactions involving many different parties, some of whom may represent or be employed by the
Debtors, claimants, and parties in interest in these chapter 11 cases.
5.
Neither I nor any principal, partner, director, or officer of, or professional employed
by, the Firm has agreed to share or will share any portion of the compensation to be received from
the Debtors with any other person other than the principal and regular employees of the Firm.
6.
Neither I nor any principal, partner, director, or officer of, or professional employed
by, the Firm, insofar as I have been able to ascertain, holds or represents any interest adverse to
the Debtors or their estates with respect to the matter(s) upon which the Firm is to be employed.
7.
[The Debtors owe the Firm $[●] for prepetition services, the payment of which is
subject to the limitations contained in title 11 of the United States Code, 11 U.S.C. §§ 101–1532.]
The Firm has waived, or will waive, any prepetition claims against the Debtors’ estates.
8.
[As of the Petition Date, which was the date on which the Debtors commenced
these chapter 11 cases, the Firm was retained to provide professional services to the Debtors. //
The Firm was retained on [●].]
9.
As of the Petition Date, which was the date on which the Debtors commenced these
chapter 11 cases, the Firm [was/was not] party to an agreement for indemnification with certain of
the Debtors.  [A copy of such agreement is attached as Exhibit 1 to this Declaration.]
10.
The Firm is conducting further inquiries regarding its retention by any creditors of
the Debtors, and upon conclusion of that inquiry, or at any time during the period of its
employment, if the Firm should discover any facts bearing on the matters described herein, the
Firm will supplement the information contained in this Declaration.
Case 24-11217-BLS    Doc 119-2    Filed 06/25/24    Page 10 of 14

3
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true
and correct.
Date:  ___________, 2024
[DECLARANT’S NAME]
Case 24-11217-BLS    Doc 119-2    Filed 06/25/24    Page 11 of 14

Schedule 1
Tier 1 OCP List
Name
Address
Service
Morgan Lewis
& Bockius LLP
600 Anton Blvd., Suite 1800
Costa Mesa, CA 92626
Legal
Case 24-11217-BLS    Doc 119-2    Filed 06/25/24    Page 12 of 14

Schedule 2
Tier 2 OCP List
Name
Address
Service
Baker McKenzie LLP
300 E. Randolph St., Suite 5000
Chicago, IL 60601
Legal
Covington & Burling LLP
850 10th St. NW
Washington, DC 20001
Legal
Ernst & Young US LLP
200 Plaza Dr., Suite 2222
Seacaucus, NJ 07094
Audit Services
Fox Rothschild LLP
2000 Market St.
Philadelphia, PA 19103
Legal
Hogan Lovells US LLP
Columbia Square
555 Thirteenth Street, NW
Washington, DC 20004
Legal
Hyman Phelps &
McNamara PC
700 13th St. NW, Ste 1200
Washington, DC 20005
Legal
Irwin Fritchie Urquhart &
Moore LLC
400 Poydras St., Ste 2700
New Orleans, LA 70130
Legal
Linklaters LLP
Taunusanlage 8
Frankfurt Am Main, 60329
Germany
Legal
Porzio Bromberg &
Newman PC
100 Southgate Pkwy
Morristown, NJ
Legal
Case 24-11217-BLS    Doc 119-2    Filed 06/25/24    Page 13 of 14

Schedule 3
Tier 3 OCP List
Name
Address
Service
Fragomen, Del Rey,
Bernsen & Loewy
11238 El Camino Real, Ste 100
San Diego, CA 92130
Legal
Gordon Rees Scully
Mansukhani LLP
1111 Broadway, Ste 1700
Oakland, CA 94607
Legal
Littler Mendelson PC
2301 McGee St., Ste 800
Kansas City, MO 64108
Legal
Polsinelli PC
900 W 48th Pl., Ste 900
Kansas City, MO 64112
Legal
Winston Strawn
Level 33, 100 Bishopgate
London EC2N 4AG, United
Kingdom
Legal
Case 24-11217-BLS    Doc 119-2    Filed 06/25/24    Page 14 of 14

File and source

File

gov.uscourts.deb.193283.119.2.pdf

Size

251,817 bytes

SHA-256

8a826dfa26a6b3c29423e8fb4227f66fd4310180ddd36c2ae2843563cda742e7

Our copy

gov.uscourts.deb.193283.119.2.pdf

Original

PACER (login required)