Vyaire - COC - Interim Comp Motion Order FINAL
- Date
- 2024-07-03
Summary
Exhibit 1, a revised proposed order establishing procedures for interim compensation and reimbursement of expenses for retained professionals in In re Vyaire Medical, Inc., et al., Case No. 24-11217 (BLS), in the U.S. Bankruptcy Court for the District of Delaware, filed July 3, 2024 as Doc 139-1. The proposed order relates to Docket No. 118 and would grant the debtors' motion. Its Compensation Procedures let professionals serve monthly fee statements on listed Application Recipients, who have 21 days to object, after which the debtors may pay 80% of fees and 100% of expenses not subject to objection. It provides for a first monthly fee statement on or after July 21, 2024 and interim fee applications at three-month intervals beginning with the period ending August 31, 2024. It also addresses final fee applications, committee member expenses, notice and retained jurisdiction.
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Case 24-11217-BLS Doc 139-1 Filed 07/03/24 Page 1 of 8
Exhibit 1
Revised Proposed Order
Case 24-11217-BLS Doc 139-1 Filed 07/03/24 Page 2 of 8
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. 118
ORDER (I) ESTABLISHING PROCEDURES FOR
INTERIM COMPENSATION AND REIMBURSEMENT OF EXPENSES
FOR RETAINED PROFESSIONALS 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 the Debtors to
establish procedures for interim compensation and reimbursement of expenses for Professionals
and (b) granting related relief, all as more fully set forth in the Motion; and this Court having
jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and 1334 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
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’
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 139-1 Filed 07/03/24 Page 3 of 8
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. All Professionals in these cases may seek compensation in accordance with the
following procedures (collectively, the “Compensation Procedures”):
(a) On or after the 21st day of each month following the month for which
compensation is sought, each Professional seeking compensation may file
an application (each, a “Monthly Fee Statement”) for interim allowance of
compensation for services rendered and reimbursement of expenses
incurred during the preceding month, and serve such Monthly Fee
Statement, on: (a) the Debtors, Vyaire Medical, Inc.; 26125 North
Riverwoods Boulevard, Mettawa, Illinois, USA 60045, Attn.: Charles
Braley (cbraley@alixpartners.com); (b) proposed 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); and (iv) Cole Schotz P.C., Court Plaza
North, 25 Main Street, Hackensack, New Jersey 07601, Attn.: Michael D.
Sirota, Esq. (msirota@coleschotz.com), Warren A. Usatine, Esq.
(wusatine@coleschotz.com); (c) the Office of the United States Trustee for
the District of Delaware, 844 King Street, Suite 2207, Lockbox 35,
Wilmington, Delaware 19801, Attn: Benjamin Hackman
(Benjamin.A.Hackman@usdoj.gov); (d) counsel to the 1L Ad Hoc Group,
(i) Gibson, Dunn & Crutcher LLP, 200 Park Avenue, New York, NY 10166,
Attn: Scott J. Greenberg (SGreenberg@gibsondunn.com), Jason Zachary
Goldstein (JGoldstein@gibsondunn.com), Joshua Brody
2
Case 24-11217-BLS Doc 139-1 Filed 07/03/24 Page 4 of 8
(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); and
(e) proposed counsel to the official committee of unsecured creditors (the
“Committee”), (i) McDermott Will & Emery LLP, The Brandywine
Building, 1000 N. West Street, Suite 1400, Wilmington, Delaware 19801,
Attn.: David Hurst (dhurst@mwe.com) and Maris Kandestin
(mkandestin@mwe.com) and (ii) McDermott Will & Emery LLP, One
Vanderbilt Avenue, New York, NY 10017-3852, Attn: Darren Azman
(dazman@mwe.com) and Kristin Going (kgoing@mwe.com) (each, an
“Application Recipient” and, collectively, the “Application Recipients”).
Any Professional that fails to file a Monthly Fee Statement for a particular
month or months may subsequently submit a Monthly Fee Statement that
includes a request for compensation earned or expenses incurred during the
previous months.
(b) Each Application Recipient will have until 4:00 p.m. (Prevailing Eastern
Time) 21 days after service of a Monthly Fee Statement to review the
request (“Objection Deadline”). The Objection Deadline shall be
conspicuously noted on the Monthly Fee Statement. Upon the expiration of
such 21-day period, if no Application Recipient has filed with the Court a
Notice of Objection to Monthly Fee Statement (defined below), the
applicable Professional may file a certificate of no objection (a “CNO”)with
the Court with respect to the unopposed portion of the fees and expenses
requested in its Monthly Fee Statement. After a CNO is filed with the
Court, the Debtors are authorized to pay the Professional an amount
(the “Actual Monthly Payment”) equal to 80% of the fees and 100% of the
expenses requested in the applicable Monthly Fee Statement
(the “Maximum Monthly Payment”) that are not subject to an Objection
pursuant to subparagraph (c) below.
(c) If any Application Recipient objects to a Monthly Fee Statement, the
objecting party shall, within 21 days of service of the Monthly Fee
Statement, serve a written notice upon the respective Professional and each
of the Application Recipients (the “Notice of Objection to Monthly Fee
Statement”) setting forth the precise nature and basis of the objection and
the amount at issue. Thereafter, the objecting party and the Professional
shall attempt to resolve the objection on a consensual basis. If the parties
reach an agreement, the Debtors shall be authorized to promptly pay 80%
of the agreed-upon fees and 100% of the agreed-upon expenses. If,
however, the parties are unable to reach a resolution of the objection within
14 days after service of the Notice of Objection to Monthly Fee Statement,
the objecting party shall file its objection (the “Objection”) with the Court
within 3 business days and serve such Objection on the respective
Professional and each of the Application Recipients. Thereafter, the
Professional may either (i) file with the Court a response to the Objection,
3
Case 24-11217-BLS Doc 139-1 Filed 07/03/24 Page 5 of 8
together with a request for payment of the difference, if any, between the
Maximum Monthly Payment and the Actual Monthly Payment made to the
affected Professional (the “Disputed Amount”) or (ii) forego payment of the
Disputed Amount until the next hearing on an Interim Fee Application or
Final Fee Application (each, as defined herein), at which time the Court will
consider the Objection, if requested by the parties. 3
(d) Each Professional may submit its first Monthly Fee Statement on or after
July 21, 2024. This initial Monthly Fee Statement will cover the period
from the Petition Date through June 30, 2024. Thereafter, the Professionals
may file Monthly Fee Statements in the manner described above.
(e) Beginning with the period ending on August 31, 2024, and at three-month
intervals thereafter (the “Interim Fee Period”), each of the Professionals
may file and serve on the Application Recipients an interim fee application
(each, an “Interim Fee Application”) for compensation and reimbursement
of expenses sought in the Monthly Fee Statements served during such
period. Each Professional shall serve notice of its Interim Fee Application
(which identifies the Professional seeking compensation, discloses the
period for which the payment of compensation and reimbursement of
expenses is being sought, and describes the amount of compensation and
expenses sought) on all parties that have entered their appearance pursuant
to Bankruptcy Rule 2002. The Interim Fee Application should conform to
the requirements of the Local Rules, the Bankruptcy Rules, and the
Bankruptcy Code Sections 330 and 331. Application Recipients will have
21 days after service of an Interim Fee Application to object thereto
(the “Interim Fee Application Objection Deadline”). The Interim Fee
Application Objection Deadline shall be conspicuously stated on the
respective Interim Fee Application. The first Interim Fee Application
should cover the Interim Fee Period from the Petition Date through and
including August 31, 2024.
(f) The Debtors will request that the Court schedule a hearing on Interim Fee
Applications at least once every three months or at such other intervals as
the Court deems appropriate. The Court, in its discretion, may approve an
uncontested Interim Fee Application without the need for a hearing upon
the Professional’s filing of a CNO. Upon allowance by the Court of a
Professional’s Interim Fee Application, the Debtors shall be authorized to
promptly pay such Professional all allowed fees (including the 20%
holdback) and expenses not previously paid.
3
For the avoidance of doubt, no Professional shall file a CNO or otherwise request entry of an order approving
payment of any fees or expenses if any objection has been raised, either formally or informally, and such objection
has not been resolved.
4
Case 24-11217-BLS Doc 139-1 Filed 07/03/24 Page 6 of 8
(g) A pending Objection to payment of compensation or reimbursement of
expenses will not disqualify a Professional from the future payment of
compensation or reimbursement of expenses under the Compensation
Procedures.
(h) Neither (i) the payment of or the failure to pay, in whole or in part,
compensation for services and reimbursement of expenses under the
Compensation Procedures nor (ii) the filing of or the failure to file an
Objection to any Monthly Fee Application or Interim Fee Application will
bind any party in interest or the Court with respect to the allowance of
interim or final applications for compensation for services and
reimbursement of expenses of Professionals. All fees and expenses paid to
Professionals in accordance with the Compensation Procedures are subject
to disgorgement until final allowance by the Court.
(i) Professionals shall file final applications for compensation and
reimbursement (collectively, the “Final Fee Applications”) by such
deadline as may be established in a confirmed chapter 11 plan or in an order
of the Court. All Final Fee Applications shall comply with the applicable
provisions of the Bankruptcy Code, the Bankruptcy Rules, the Local Rules,
and applicable orders of the Court. For the avoidance of doubt, neither
(i) the failure to file any Monthly Fee Statement and/or Interim Fee
Application nor (ii) a pending Objection to any amounts sought under any
Monthly Fee Statement and/or an Interim Fee Application will hinder,
prevent, or delay a Professional from filing a Final Fee Application or
seeking amounts for any compensation or reimbursement that is subject to
a pending Objection.
3. In each Interim Fee Application and Final Fee Application, all professionals
who have been or are hereafter retained pursuant to sections 327, 328, or 1103 of the Bankruptcy
Code, unless such attorney is retained by the Debtors pursuant to any order entered in connection
with the retention and compensation of “ordinary course” professionals (such professionals,
the “Required Professionals”) (a) shall apply for compensation for professional services rendered
and reimbursement of expenses incurred in connection with the Debtors’ chapter 11 cases in
compliance with sections 330 and 331 of the Bankruptcy Code and applicable provisions of the
Bankruptcy Rules, Local Rules, and any other applicable procedures and orders of the Court and
(b) if the professional is an attorney, intend to make a reasonable effort to comply with the U.S.
Trustee’s requests for information and additional disclosures as set forth in the Guidelines for
5
Case 24-11217-BLS Doc 139-1 Filed 07/03/24 Page 7 of 8
Reviewing Applications for Compensation and Reimbursement of Expenses Filed under 11 U.S.C.
§ 330 by Attorneys in Larger Chapter 11 Cases Effective as of November 1, 2013, both in
connection with any Interim Fee Application and Final Fee Application to be filed by the Required
Professionals in these chapter 11 cases.
4. Each member of any official committee formed by the U.S. Trustee is permitted to
submit statements of expenses incurred in the performance of the duties of the committee
(excluding third-party counsel expenses of individual committee members) and supporting
vouchers to the respective committee’s counsel, which counsel will collect and file the committee
members’ requests for reimbursement with this Court in accordance with the Compensation
Procedures.
5. The Professionals shall only be required to serve (a) the Monthly Fee Statements,
the Interim Fee Applications, and the Final Fee Application on the Application Recipients, and
(b) the notice of hearings on the Interim Fee Applications and Final Fee Applications on all other
parties that have filed a notice of appearance with the Clerk of this Court and requested notice of
pleadings in these chapter 11 cases.
6. All notices given in accordance with the Compensation Procedures shall be deemed
sufficient and adequate notice and in full compliance with the applicable provisions of the
Bankruptcy Code, the Bankruptcy Rules, and the Local Rules.
7. All time periods set forth in this Order shall be calculated in accordance with
Bankruptcy Rule 9006(a).
8. 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.
6
Case 24-11217-BLS Doc 139-1 Filed 07/03/24 Page 8 of 8
9. Notwithstanding Bankruptcy Rule 6004(h), the terms and conditions of this Order
are immediately effective and enforceable upon its entry.
10. The Debtors are authorized to take all actions necessary to effectuate the relief
granted in this Order in accordance with the Motion.
11. This Court retains jurisdiction with respect to all matters arising from or related to
the implementation, interpretation, and enforcement of this Order.
7
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