Order Authorizing Retention of Omni Agent Solutions — In re Vyaire Medical

Summary

This filing (Doc 237-2, filed 07/09/24, Case No. 24-11217 (BLS)) contains Exhibit A, a proposed order authorizing the Debtors to employ and retain Omni Agent Solutions, Inc. as Administrative Agent effective as of the Petition Date. The proposed order approves the Application, authorizes Omni to perform the bankruptcy administration services described in the Engagement Agreement, and sets limits on the Debtors' indemnification of Omni. Exhibit B is the Declaration of Paul H. Deutch, Executive Vice President of Omni, who states that Omni is a "disinterested person" under section 101(14) of the Bankruptcy Code. The filing also reproduces a services and rate schedule from the Engagement Agreement.

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Full text

Exhibit A
Proposed Order
Case 24-11217-BLS    Doc 237-2    Filed 07/09/24    Page 1 of 24

IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
)
In re:
)
Chapter 11
)
VYAIRE MEDICAL, INC., et al.,4
)
Case No. 24-11217 (BLS)
)
Debtors.
)
(Jointly Administered)
)
ORDER AUTHORIZING DEBTORS TO
EMPLOY AND RETAIN OMNI AGENT SOLUTIONS, INC. AS
ADMINISTRATIVE AGENT EFFECTIVE AS OF THE PETITION DATE
Upon the application (the “Application”)5 of the Debtors in the Chapter 11 Cases for entry
of an order, pursuant to sections 327(a) and 328(a) of the Bankruptcy Code, Bankruptcy Rules
2014(a) and 2016, and Local Rule 2014-1, (a) authorizing the Debtors to employ and retain Omni
Agent Solutions as the Administrative Agent in the Chapter 11 Cases effective as of the Petition
Date pursuant to the Engagement Agreement; and (b) granting related relief; and the United States
District Court for the District of Delaware having 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 the Court having authority to hear the matters raised in the Application
pursuant to 28 U.S.C. § 157; and venue being proper before this Court pursuant to 28 U.S.C.
§§ 1408 and 1409; and consideration of the Application and the requested relief being a core
proceeding that the Court can determine pursuant to 28 U.S.C. § 157(b)(2); and due and proper
4 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.
5
Capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in the Application.
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notice of the Application and opportunity for a hearing on the Application having been given to
the Notice Parties, and it appearing that no other or further notice need be provided; and the Court
having reviewed and considered the Application, the Deutch Declaration and the First Day
Declaration; and the Court having held, if necessary, a hearing on the Application (the “Hearing”);
and the Court having found that the legal and factual bases set forth in the Application establish
just cause for the relief granted herein; and the Court having found that the terms and conditions
of Omni’s employment are reasonable as required by section 328(a) of the Bankruptcy Code; and
the Court having found that Omni is a “disinterested person” as that term is defined in
section 101(14) of the Bankruptcy Code; and the Court having found that the relief requested in
the Application being in the best interests of the Debtors, their creditors, their estates, and all other
parties in interest; and upon all of the proceedings had before the Court; and after due deliberation
and sufficient cause appearing therefor, it is hereby
ORDERED, ADJUDGED AND DECREED THAT:
1.
The Application is approved as set forth in this Order.
2.
The Debtors are authorized to retain Omni as Administrative Agent effective as of
the Petition Date under the terms of the Engagement Agreement, and Omni is authorized to
perform the bankruptcy administration services described in the Application and set forth in the
Engagement Agreement.
3.
Omni is authorized to take such other action to comply with all duties set forth in
the Application.
4.
Omni shall apply to the Court for allowance of compensation and reimbursement
of expenses incurred after the Petition Date in accordance with the applicable provisions of the
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Bankruptcy Code, the Bankruptcy Rules, the Local Rules, and any orders entered in these cases
regarding professional compensation and reimbursement of expenses.
5.
The Debtors shall indemnify Omni under the terms of the Engagement Agreement,
as modified pursuant to this Order.
6.
Omni 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 therefor are approved by the Court.
7.
Notwithstanding anything to the contrary in the Engagement Agreement, the
Debtors shall have no obligation to indemnify Omni, or provide contribution or reimbursement to
Omni, for any claim or expense that is either: (i) judicially determined (the determination having
become final) to have arisen from Omni’s bad faith, self-dealing, breach of fiduciary duty (if any),
gross negligence, willful misconduct or fraud; (ii) for a contractual dispute in which the Debtors
allege the breach of Omni’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 Omni
should not receive indemnity, contribution or reimbursement under the terms of the Engagement
Agreement as modified by this Order.
8.
If, before the earlier of (i) the entry of an order confirming a chapter 11 plan in the
Chapter 11 Cases (that order having become a final order no longer subject to appeal), or (ii) the
entry of an order closing the Chapter 11 Cases, Omni believes that it is entitled to the payment of
any amounts by the Debtors on account of the Debtors’ indemnification, contribution and/or
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reimbursement obligations under the Engagement Agreement (as modified by this Order),
including the advancement of defense costs, Omni must file an application therefore in this Court,
and the Debtors may not pay any such amounts to Omni before the entry of an order by this Court
approving the payment requested therein. 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 Omni
for indemnification, contribution or reimbursement, and not a provision limiting the duration of
the Debtors’ obligation to indemnify Omni. All parties in interest shall retain the right to object
to any demand by Omni for indemnification, contribution, or reimbursement.
9.
The Debtors and Omni are authorized to take all actions necessary to effectuate the
relief granted pursuant to this Order in accordance with the Application.
10.
Notwithstanding any term in the Engagement Agreement to the contrary, the Court
retains jurisdiction with respect to all matters arising from or related to the implementation of this
Order.
11.
Notwithstanding any provision in the Bankruptcy Rules to the contrary, this Order
shall be immediately effective and enforceable upon its entry.
12.
In the event of any inconsistency between the Engagement Agreement, the
Application, and the Order, the Order shall govern.
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Exhibit B
Deutch Declaration
Case 24-11217-BLS    Doc 237-2    Filed 07/09/24    Page 6 of 24

UNITED STATES BANKRUPTCY COURT
DISTRICT OF DELAWARE
)
In re:
)
Chapter 11
)
VYAIRE MEDICAL, INC., et al.,6
)
Case No. 24-11217 (BLS)
)
Debtors.
)
(Jointly Administered)
)
DECLARATION OF PAUL H. DEUTCH IN SUPPORT OF
APPLICATION OF DEBTORS FOR ENTRY OF AN ORDER AUTHORIZING
DEBTORS TO EMPLOY AND RETAIN OMNI AGENT SOLUTIONS, INC.
AS ADMINISTRATIVE AGENT EFFECTIVE AS OF THE PETITION DATE
Pursuant to 28 U.S.C. § 1746, I, Paul H. Deutch, declare under penalty of perjury that the
following is true and correct to the best of my information, knowledge, and belief under penalty
of perjury, declare as follows:
1.
I am the Executive Vice President of Omni Agent Solutions, Inc. (“Omni”), and I
am authorized to make and submit this declaration (the “Declaration”) on behalf of Omni. Except
as otherwise noted, I have personal knowledge of the matters set forth herein, and if called and
sworn as a witness, I could and would competently testify thereto.
2.
I submit this declaration in support of the above-captioned debtors’ (the “Debtors”)
Application of Debtors for Entry of an Order Authorizing Debtors to Employ and Retain Omni
Agent Solutions, Inc. as Administrative Agent Effective as of the Petition Date which was filed
contemporaneously herewith (the “Application”).7
6 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.
7
Capitalized terms used but not otherwise defined herein shall have the meanings set forth in the Application.
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3.
Omni is a chapter 11 administrator 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 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. 3, 2024); In re Sunlight Fin. 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,
L.L.C., No. 23-10382 (LSS) (Bankr. D. Del. Apr. 3, 2023); In re Indep. Pet Partners Holdings,
LLC, No. 23-10153 (LSS) (Bankr. D. Del. Feb. 7, 2023); In re Performance Powersports Grp.
Inv., LLC, No. 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).8
4.
As Administrative Agent, Omni will perform the bankruptcy administration
services specified in the Application and the Engagement Agreement. In performing such services,
Omni will charge the Debtors the rates set forth in the Engagement Agreement, which is attached
as Exhibit C to the Application.
8
Because of the voluminous nature of the orders cited herein, such orders have not been attached to
this Application.  Copies of these orders are available upon request to the Debtors’ proposed counsel.
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5.
Omni is a “disinterested person” as that term is defined in section 101(14) of the
Bankruptcy Code, in that Omni and its professional personnel:
(a)
are not creditors, equity security holders or insiders of the Debtors;
(b)
are not and were not, within two years before the date of the filing of these cases,
directors, officers, or employees of the Debtors; and
(c)
do not have an interest materially adverse to the interest of the Debtors’ estates or
of any class of creditors or equity security holders, by reason of any direct or
indirect relationship to, connection with or interest in the Debtors.
6.
I caused to be submitted for review by our conflicts system the names of all known
potential parties in interest (the “Potential Parties in Interest”) in the Chapter 11 Cases.  The list of
Potential Parties in Interest was provided by the Debtors and included the Debtors, non-Debtor
affiliates, current and former directors and officers of the Debtors, significant stockholders,
secured creditors, lenders, the Debtors’ 30 largest unsecured creditors, contract counterparties,
landlords, vendors, insurers, utilities, governmental authorities, the United States Trustee and
persons employed in the office of the United States Trustee, and other parties.  The results of the
conflict check were compiled and reviewed by Omni professionals under my supervision.  At this
time, and as set forth in further detail herein, Omni is not aware of any connection that would
present a disqualifying conflict of interest. Should Omni discover any new relevant facts or
connections bearing on the matters described herein during the period of its retention, Omni will
use reasonable efforts to file promptly a supplemental declaration.
7.
To the best of my knowledge and based solely upon information provided to me by
the Debtors, and except as provided herein, neither Omni, nor any of its personnel, holds or
represents an interest materially adverse to the Debtors’ estates nor has a material connection to
the Debtors, their creditors, or related parties with respect to any matter for which Omni will be
employed.  Omni may have relationships with certain of the Debtors’ creditors as vendors or in
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connection with cases in which Omni serves or has served as claims and noticing agent and/or
administrative Agent for another chapter 11 debtor. However, to the best of my knowledge, no
such relationships are materially related to the Chapter 11 Cases.
8.
Omni has working relationships with certain of the professionals retained by the
Debtors and other parties herein, but such relationships are entirely unrelated to the Chapter 11
Cases. Omni has and will continue to represent clients in matters unrelated to the Chapter 11
Cases, and Omni and its personnel may have, and will continue to have, relationships personally
or in the ordinary course of its business with certain vendors, professionals, financial institutions,
and other parties in interest in connection with matters unrelated to these cases.  Omni may also
provide professional services to entities or persons that may be creditors or parties in interest in
the Chapter 11 Cases, which services do not directly relate to, or have any direct connection with,
the Chapter 11 Cases or the Debtors.
9.
Omni and its personnel in their individual capacities regularly utilize the services
of law firms, accounting firms, and financial advisors. Such firms engaged by Omni, or its
personnel, may appear in these cases representing the Debtors or parties in interest.  All
engagements where such firms represent Omni or its personnel in their individual capacities are
unrelated to the Chapter 11 Cases.
10.
Based on the foregoing, I believe that Omni is a “disinterested person” as that term
is defined in section 101(14) of the Bankruptcy Code.  Moreover, to the best of my knowledge,
information, and belief, neither Omni nor any of its employees hold or represent any interest
materially adverse to the Debtors’ estate with respect to any matter upon which Omni is to be
employed.
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Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true
and correct to the best of my information, knowledge, and belief.
Executed on July 9, 2024
/s/ Paul H. Deutch
Paul H. Deutch
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Exhibit C
Engagement Agreement
Case 24-11217-BLS    Doc 237-2    Filed 07/09/24    Page 12 of 24

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.
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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
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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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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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Omni 4/18/24 (PHD)

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.
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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
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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
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Omni 4/18/24 (PHD)

EXHIBIT
“A”
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2024 Rate Sheet

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.
Hourly Rates for Standard and Custom
Services*
RATE / COST
Analyst
$40.00 - $75.00 per hour
Consultants
$75.00 - $195.00 per hour
Senior Consultants
$200.00 - $240.00 per hour
Solicitation and Securities Consultant
$200-225.00 per hour
Director of Solictation and Securities
$250.00 per hour
Treasury Services
Quoted upon request
Technology/Programming
$85.00 - $155.00 per hour
Informational Website
RATE / COST
Creation, Configuration and Initial Setup
No charge
Data Entry / Information Updates
Standard hourly rates apply
Programming and Customization
$85 - $155 per hour
Debtor Website Hosting
No charge
Committee Website Hosting
No charge
Shareholder Website Hosting
No charge
Scanning
$0.10 per image
Public Debt and Equities Securities and/Rights
Offerings Services
RATE / COST
Noticing Services
Standard hourly rates apply
Solicitation, Balloting and Tabulation
Standard hourly rates apply
Rights Offerings
Standard hourly rates apply
Security Position Identification Reports
Standard hourly rates apply
Claims Management
RATE / COST
Inputting Proofs of Claim
Hourly rates
(No per claim charges)
Scanning
$.10 per image
Remote Internet access for claims management
Setup
No charge
Access
No charge
Liquidating / Disbursing Agent
RATE / COST
Comply with Plan requirements, preparation of
disbursement reports, payout calculations, check
generation, bank reconciliations
Standard hourly rates apply
Schedules / SoFA
RATE / COST
Preparation and updating of schedules and SoFAs $65.00 - $240.00 per hour
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2024 Rate Sheet

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
and post-confirmation reports
Standard hourly rates apply

** 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
Printing and Noticing Services
RATE / COST
Copy
$.10 per image
Document folding and insertion
No charge
Labels/Envelope printing
$.035 each
MSL E-mail noticing
No charge
High Volume or Certified E-mail Noticing
TBD per volume
Facsímile Noticing
$.10 per image
Postage
At cost
(Advance payment required for postage
charges over $10,000)
Envelopes
Varies by size
Electronic Services, Storage & Security
RATE / COST
License Fee and System Maintenance
.10 per Record
Per image storage
No charge
Monthly Encryption Bandwidth and Security
Compliance Charges**
.10 per MB
Automated Services
.10 per process
Virtual Data Rooms
Quote upon request
Miscellaneous
RATE / COST
Telephone charges
At cost
Delivery
At cost
Archival DVD/CD-Rom
$40.00 per copy
Newspaper and Legal Notice Publishing
RATE / COST
Coordinate and publish legal notice
Quote prior to publishing
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