Application — Official Committee of Unsecured Creditors to Retain Berkeley Research Group as Financial Advisor

Summary

Application of the Official Committee of Unsecured Creditors in the Vyaire Medical Chapter 11 case, Case No. 24-11217 (BLS), for an order authorizing it to retain and employ Berkeley Research Group, LLC as financial advisor effective as of June 28, 2024. The caption lists an objection deadline of Jul. 24, 2024, at 4:00 p.m. (ET) and a hearing date of Jul. 31, 2024, at 2:00 p.m. (ET). The application states that the United States Trustee appointed the Committee on June 26, 2024, and that the Committee selected Berkeley Research Group on June 28, 2024. It lists areas of financial advisory work, including analysis of the Debtors' assets and possible recoveries and participation in any 363 sale process, and is dated July 10, 2024, over /s/ Sasha L. Azar.

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IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE

) Chapter 11
In re:
)

) Case No. 24-11217 (BLS)
VYAIRE MEDICAL, INC., et al.,1
)

) (Jointly Administered)

Debtors.
)

) Objection Deadline: Jul. 24, 2024 at 4:00 p.m. (ET)

) Hearing Date: Jul. 31, 2024 at 2:00 p.m. (ET)

) Related to Docket Nos. 217, 242

APPLICATION FOR ENTRY OF AN ORDER AUTHORIZING THE OFFICIAL
COMMITTEE OF UNSECURED CREDITORS TO RETAIN AND EMPLOY
BERKELEY RESEARCH GROUP, LLC, AS FINANCIAL ADVISOR
EFFECTIVE AS OF JUNE 28, 2024

The Official Committee of Unsecured Creditors (the “Committee”) of Vyaire Medical, Inc.,
et al., as debtors and debtors in possession (the “Debtors” or “Vyaire”), submits this application
(the “Application”) for an order, substantially in the form attached hereto as Exhibit A, pursuant
to Sections 327, 328 and 1103 of Title 11 of the United States Code (the “Bankruptcy Code”),
Rule 2014(a) of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”), and Rule
2014-1 of the Local Rules of the Bankruptcy Court for the District of Delaware (the “Local
Rules”), authorizing the employment of Berkeley Research Group, LLC (“BRG”), as financial
advisor to the Committee. In support of this Application, the Committee submits the Declaration
of David Galfus (the “Galfus Declaration”) which is incorporated herein as Exhibit B. In further
support of this Application, the Committee respectfully represents as follows:

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.
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JURISDICTION
1.
The United States Bankruptcy Court for the District of Delaware (the “Court”) has
jurisdiction in 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. Venue is proper pursuant to 28 U.S.C. §§ 1408 and 1409. This is a core proceeding
pursuant to 28 U.S.C. § 157(b)(2) and the Committee confirms its consent pursuant to Local Rule
9013-l(f) to the entry of a final order by the Court in connection with this Application to the extent
that it is later determined that the Court, absent consent of the parties, cannot enter final orders or
judgments in connection herewith consistent with Article III of the United States Constitution.
2.
The statutory predicates for the relief sought herein are sections 327, 328, and
1103(a) of the Bankruptcy Code, Bankruptcy Rule 2014(a), and Local Rule 2014-1.
BACKGROUND
3.
On June 9, 2024 (the “Petition Date”), each of the Debtors filed a voluntary petition
for relief under chapter 11 of the Bankruptcy Code (the “Cases”) with the Court. The Debtors are
authorized to continue to operate their businesses and manage their properties as debtors-in-
possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code. No trustee or examiner
has been appointed in these Cases.
4.
The Cases are being jointly administered pursuant to Bankruptcy Rule 1015(b) and
the Court’s Order (I) Directing Joint Administration of Chapter 11 Cases and (II) Granting
Related Relief [Docket No. 84], entered on June 11, 2024.
5.
On June 26, 2024 (the “Formation Date”), the Office of the United States Trustee
for the District of Delaware (the “U.S. Trustee”) appointed the Committee. The Committee is
presently comprised of the following members: (i) Sunmed Group Holdings, LLC (d/b/a AirLife);
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(ii) Zensar Technologies Inc.; (iii) Cognizant Worldwide Ltd.; (iv) Presido; (v) Vizient, Inc.;
(vi) David M. Lewis Company; and (vii) Data Modul, Inc.
6.
On June 28, 2024, the Committee selected BRG to serve as its financial advisor.
The Committee has also selected McDermott Will & Emery LLP (“MWE” or “Counsel”) as its
proposed counsel.
REQUESTED RELIEF AND REASONS THEREFOR
7.
The Committee respectfully requests entry of an order pursuant to sections 328,
330, and 1103(a) of the Bankruptcy Code authorizing BRG to perform financial advisory services
for the Committee that will be necessary during these Cases. The Debtors are a large, complex
enterprise, and the Committee requires the services of an experienced financial advisor such as
BRG to provide financial advisory services that are critical to the discharge of the Committee’s
duties and powers.
8.
The Committee has determined that the services of BRG are necessary to enable
the Committee to assess and monitor the efforts of the Debtors and their professionals, to ensure
that the Debtors are able to successfully reorganize (through a standalone reorganization and/or
asset sale(s)), and to maximize the value of the Debtors’ estates for the benefit of the unsecured
creditors.
9.
Immediately upon its selection, BRG commenced work on several time-sensitive
matters and promptly devoted substantial resources to these Cases pending submission and
approval of this Application. In order to allow BRG to be compensated for work performed prior
to and after the submission of this Application, the Committee seeks to employ BRG as its financial
advisor effective as of June 28, 2024, the date of its retention.
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A.
Qualifications of Professionals
10.
BRG has significant qualifications and experience in providing the services
contemplated herein. BRG’s practice consists of senior financial, management consulting,
accounting, and other professionals who specialize in providing restructuring, transaction
advisory, litigation support, solvency, and valuation assistance and providing a focus on viable
solutions that maximize value for companies and creditors, typically in distressed business
settings. BRG has acted as financial advisor, crisis manager, and corporate officer in middle market
to large multinational restructurings across a wide array of industries. BRG’s services include
forensic analysis, plan development and implementation, and advice on sale/merger transactions.
Moreover, the professionals at BRG have assisted and advised debtors, creditors, creditors’
committees, bondholders, investors, and others in numerous bankruptcy cases, including Endo
International, plc; Genesis Care Pty Limited; Sientra, Inc.; SVB Financial Group; Genesis Global
Holdco, LLC; WeWork Inc.; Aralez Pharmaceuticals US Inc.; 21st Century Oncology Holdings,
Inc.; Hooper Holmes Inc. (a.k.a. Provant Health); Egalet Corporation; Desolation Holdings LLC.
(a.k.a Bittrex); The Collected Group, LLC; CBC Restaurant Corp.; Sorrento Therapeutics, Inc.;
The Hertz Corporation; Verity Health System of California; ViewRay, Inc.; Zymergen, Inc.;
Proterra Inc.; Aluminum Shapes, L.L.C.; Centric Brands, Inc.; LifeCare Holdings, Inc.; CBL &
Associates Properties, Inc.; General Wireless Operations, Inc (a.k.a. RadioShack Inc.); GNC
Holdings, Inc.; Molycorp Inc.; Southern Foods Group, LLC (a.k.a. Dean Foods); Speedcast
International Limited; Briggs & Stratton Corporation; and Vitamin World, Inc.2
11.
The Committee chose BRG to act as its financial advisor in these Cases based in
large part on the experience outlined above. The Committee believes that BRG’s services are

2  The professionals were employed in certain of these engagements prior to joining BRG.
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necessary to enable the Committee to assess and monitor the Debtors’ restructuring and/or sale
efforts in furtherance of the Committee’s obligations to protect the interests of, and maximize
value for, all unsecured creditors. Moreover, based on the experience of BRG’s professionals in
large, complex chapter 11 cases, the Committee believes that BRG is well-qualified to provide
such services in a cost-effective, efficient, and timely manner.
B.
Services to be Provided
12.
BRG will provide such financial advisory services to the Committee as the
Committee deems appropriate and necessary in order to advise the Committee during the course
of these Cases. The services to be rendered by BRG, which services may be subject to modification
at the Committee’s request, are necessary to enable the Committee to faithfully execute its
statutory duties to unsecured creditors.
13.
Subject to further order of this Court, the Committee has requested that BRG render
financial advisory services with respect to the following areas:
a)
Analyze the Debtors’ assets (tangible and intangible) and possible
recoveries to creditor constituencies under various scenarios and develop
strategies to maximize recoveries, including development of recovery models for
use by the unsecured creditors;
b)
Review and provide analysis of any filed plan of reorganization and
disclosure statement, including the assessment of projections to ensure any plan of
reorganization is supported by credible business and operational plans, and if
appropriate, the development of alternative bankruptcy plans proposed by the
Committee to assess their achievability;
c)
Advise and assist the Committee in its analysis and monitoring of the
historical, current and projected financial affairs of the Debtors, including,
schedules of assets and liabilities and statements of financial affairs;
d)
Develop and issue periodic monitoring reports to enable the Committee to
evaluate effectively the Debtors’ performance relative to projections, any 363 sale
process (and, if applicable, any subsequent wind-down activities), ability to
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realize or settle claims for avoidance actions, and any relevant operational issues,
including liquidity, on an ongoing basis;
e)
Evaluate and participate in any 363 sale process to ensure the adequacy of
such process and that it proceeds in the most efficient manner to maximize
recoveries to the unsecured creditors;
f)
Advise and assist the Committee with respect to any debtor-in-possession
financing arrangements and/or the use of cash collateral including evaluation of
asserted liens thereon;
g)
Evaluate relief requested in cash management motion, including proper
controls related to and financial transparency into intercompany and related party
transactions including cross-border transactions and debtor to non-debtor
transactions;
h)
Monitor liquidity and cash flows throughout these Cases and scrutinize
cash disbursements and capital requirements on an ongoing basis;
i)
Analyze both historical and ongoing related party transactions and/or
material unusual transactions with affiliates of the Debtors.
j)
Advise the Committee and Counsel in evaluating any court motions,
applications, or other forms of relief, filed or to be filed by the Debtors, or any
other parties in interest;
k)
Advise and assist the Committee in its assessment of the Debtors’
employee needs and related costs, including the appropriateness of any proposed
employee retention plan or incentive plan;
l)
Analyze the Debtors’ business plan and monitor the implementation of
any strategic initiatives and prepare reports related thereto;
m)
Assist Counsel in evaluating all purported lien claims by creditors,
including the validity and enforcement of such claims;
n)
Evaluate and advise on the Debtors’ assumption and or rejection of
executory contracts and or leases;
o)
Work with the Debtors’ tax advisors to ensure that any restructuring or
sale transaction is structured in a tax efficient manner as well as assist with the
Committee’s review of any tax issues;
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p)
Monitor Debtors’ claims management process, including analyzing claims
and guarantees, and summarizing claims by entity;
q)
Advise the Committee in connection with any potential claims and causes
of action, including preference payments, fraudulent conveyances, and other
potential causes of action that the Debtors’ estates may hold against insiders
and/or third parties;
r)
Participate in meetings, discussions, and negotiations with the Committee,
the Debtors, and the other parties in interest and with their respective
professionals and attending court hearings as may be required;
s)
Provide any expert reports and/or testimony as requested by the
Committee and Counsel; and
t)
Perform other matters as may be requested by the Committee or Counsel
from time to time, including: preparing litigation, valuation, and/or forensic
analyses that have not yet been identified but as may be requested by the
Committee and Counsel, consistent with the role of a financial advisor.
14.
In addition to services related to these areas, BRG understands that it may be
requested to participate, at the Committee’s request and to the extent appropriate, in meetings and
discussions with the Committee, the Debtors, and the other parties-in-interest and with their
respective professionals.
C.
No Duplication of Services
15.
The services to be provided by BRG will be at the request and direction of the
Committee so as to avoid duplicative efforts among the Committee’s professionals retained in
these Cases.
16.
BRG intends to communicate regularly with the Committee and its Counsel to
ensure that the actual financial advisory services performed are appropriate based on the status of
the case and needs of the Committee. BRG will coordinate all tasks with Counsel to achieve case
efficiencies and avoid duplication of efforts. The Committee believes it is necessary to employ
BRG as its financial advisor to render the foregoing professional services. In light of BRG’s
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substantial experience and expertise and the complex nature of the Debtors’ business and financial
affairs, the Committee believes that BRG is well qualified to advise it in these Cases.
D.
Use of Contractors
17.
Notwithstanding anything in this Application to the contrary, BRG shall (i) to the
extent that it uses the services of independent contractors or subcontractors (the “Contractors”) in
these Cases, pass-through the cost of Contractors to the estates at the same rate that BRG pays the
Contractors; (ii) seek reimbursement for actual costs only; (iii) ensure that the Contractors are
subject to the same conflict checks and compensation procedures as required for BRG; and (iv) file
with the Court such disclosures required by Bankruptcy Rule 2014.
E.
Limitation of Liability
18.
The Committee understands that BRG’s decision to accept this engagement is
contingent upon its ability to be retained in accordance with the terms and conditions set forth
below (the “Limitation of Liability Provisions”).
19.
Except in the case of conduct by BRG or its agents involving gross negligence,
willful misconduct, reckless misconduct, or fraud, BRG shall not be liable under this retention to
the Committee or their respective successors, assigns or affiliates for consequential, incidental,
special, or punitive damages nor shall BRG be liable for direct compensatory damages in excess
of the amount of the fees paid hereunder to BRG. The terms of this paragraph shall survive the
termination of this retention and such commitments shall extend upon the terms set forth in this
paragraph to any controlling person, director, officer, employee, or affiliate of BRG.
20.
The Committee has agreed that BRG shall not be liable for any delays resulting
from circumstances or causes beyond its reasonable control, including, without limitation, fire or
other casualty, act of God, strike or labor dispute, war or other violence, or any law, order or
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requirement of any governmental agency or authority.
21.
The Committee submits that the Limitation of Liability Provisions outlined above,
which include qualifications and limitations on the indemnifications and limitation on liability
provisions that are customary in chapter 11 cases in Delaware, as may be modified by Court order,
are customary and reasonable terms of engagement for financial advisors for engagements of this
type in cases in this and other districts and thus should be approved.
F.
Disinterestedness of Professionals
22.
To the best of the Committee’s knowledge and based upon and subject to the
disclosures made in the Galfus Declaration filed contemporaneously herewith, BRG (inclusive of
its affiliates, subsidiaries and parent entities) is a “disinterested person” as that term is defined in
section 101(14) of the Bankruptcy Code and the Committee is satisfied that (i) BRG represents no
interest adverse to the Committee, the Debtors, their estates, or any other party in interest in the
matters upon which it is to be engaged and that its employment is in the best interest of the estates;
(ii) BRG together with its Managing Directors and Directors do not have any financial interest in
or business with the Debtors; (iii) BRG has no connection with the U.S. Trustee or any other person
employed in the office of the U.S. Trustee; and (iv) BRG has no connection with the bankruptcy
judge approving the employment of BRG as the Committee’s financial advisor. BRG has not
provided, and will not provide, any professional services to the Debtors, any other creditors, other
parties in interest, or their respective attorneys and accountants with regard to any matter related
to these Cases.
G.
Professional Compensation
23.
BRG advised the Committee that it intends to charge its standard hourly rates for
professional services rendered, plus reimbursement of actual and necessary expenses incurred by
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BRG. The professional fees shall be calculated by multiplying the hours worked by the standard
hourly billing rates in effect for the specific personnel involved. The hourly rates charged by BRG
for the services provided by its personnel differ based upon, among other things, each
professional’s level of experience, geographic differentials, and types of services being provided.
In the ordinary course of business, BRG periodically revises its hourly rates to reflect promotions
and other changes in personnel responsibilities, increases in experience, and increases in the cost
of doing business.
24.
BRG has advised the Committee that its fees will be commensurate with the fees
charged to its other clients and in other cases of this size (provided such clients are billed hourly).
BRG has also advised the Committee that it intends to make application to the Court for allowance
of its compensation and reimbursement of expenses in accordance with applicable provisions of
the Bankruptcy Code, the Bankruptcy Rules, the Local Rules, and the terms of any order
establishing procedures for interim compensation that may be entered in this case. BRG’s
compensation for services rendered on behalf of the Committee shall be fixed by the Court after
due application.
25.
For professional services, fees are based on BRG’s standard hourly rates. The
proposed rates of compensation, subject to final Court approval, are the customary hourly rates in
effect when services are performed by the professionals and paraprofessionals who provide
services to the Committee. The current standard hourly rates for BRG personnel that will work on
this engagement are as follows:3

3
The below ranges are for BRG professionals in the Corporate Finance practice group who may practice in
bankruptcy and non-bankruptcy related matters.  They exclude BRG professionals in other industry practice
groups who may also provide specialized services in these Chapter 11 Cases.  To the extent such other
professionals provide services, they will charge their standard hourly rates as they would in non-bankruptcy
matters and in no event do their standard hourly rates exceed the ranges set forth below for the Corporate Finance
practice group.
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Position
Hourly Rate
Managing Directors
$1,095 - $1,325
Associate Directors & Directors
$865 - $1,050
Professional Staff
$420- $850
Support Staff
$175 - $375
26.
These standard hourly rates are subject to periodic adjustment, which shall be noted
on the invoices for the first time period in which the revised rates become effective. The standard
hourly rates for the BRG staff anticipated to be assigned to this engagement are as follows: David
Galfus ($1,325), Evan Hengel ($1,210), Rob Shapiro ($1,095), Ron Zaidman ($1,095), and Ed
Buthusiem ($1,075) (together with any additional assigned professionals the “BRG Personnel”).
BRG believes that its standard hourly rates are at or below those of firms it considers its peers.
27.
To the extent BRG requires services of personnel from specialized practices or its
international divisions, the standard hourly rates for that specialized practice or international
division will apply.
28.
Consistent with BRG’s policy with respect to its other clients, BRG will charge for
all other services provided and for other charges and disbursements incurred in rendering services
to the Committee. These customary items include, among other things, travel and lodging
expenses, business meals, costs of reproduction, research, communications, our legal counsel, any
applicable sales or excise taxes and other direct expenses. Internal costs or overhead cost and
document production services (including regular secretarial and word processing time) will not be
charged for separately.
29.
BRG will also request compensation for any time and expenses (including, without
limitation, reasonable legal fees and expenses, except in the case of legal fees pertaining to any fee
defense) that may be incurred in considering or responding to discovery requests or other requests
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for documents or information, or in participating as a witness or otherwise in any legal, regulatory,
or other proceedings, including, without limitation, those other than the instant matter, as a result
of BRG’s performance of these services.
30.
BRG acknowledges that neither the Committee, its constituents, nor any of its
advisors or professionals (including, but not limited to Counsel), shall be liable for the fees,
expenses or other amounts payable to BRG.
31.
Regardless of the time and manner of interim compensation, BRG understands that,
subject to this Court's orders, BRG will be required to follow the procedures for final allowance
of fees at the end of the Cases.
32.
No promises have been received by BRG, nor any employee thereof, as to payment
or compensation in connection with these Cases other than in accordance with the provisions of
section 504 of the Bankruptcy Code. Except for internal agreements among the employees of BRG
regarding the sharing of revenue or compensation, neither BRG nor any of its employees has
entered into an agreement or understanding to share compensation with any other entity as
described in Bankruptcy Code section 504 and Bankruptcy Rule 2016.
NOTICE
33.
Notice of the Application has been given to the following parties or, in lieu thereof,
to their counsel, if known: (i) counsel to the Debtors; (ii) U.S. Trustee; and (iii) all parties entitled
to notice pursuant to Bankruptcy Rule 2002 and Local Rule 2002-1(b).  The Committee submits
that, in light of the nature of the relief requested and the circumstances surrounding these Chapter
11 Cases, no other or further notice is required or necessary.
NO PRIOR REQUEST
34.
No previous application for the relief sought herein has been made to this or any
other court.
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WHEREFORE, the Committee respectfully requests that it be authorized to employ BRG
as its financial advisor on the terms set forth herein, effective as of June 28, 2024, and that BRG
be paid such compensation as may be allowed by this Court, and for such other further relief as is
just and proper.
Dated: July 10, 2024
Respectfully submitted,
Wilmington, Delaware
The Official Committee of Unsecured Creditors
of Vyaire Medical, Inc., et al.,

/s/ Sasha L. Azar

Sasha L. Azar, solely in their capacity as an
authorized signatory of Zensar Technologies, Inc.,
the Chair of the Committee and not in their personal
capacity.
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