Redline Order on Retention of Berkeley Research Group — In re Vyaire Medical, Inc. (Bankr. D. Del.)
- Date
- 2024-07-25
Summary
Doc. 316-2, filed July 25, 2024 in In re Vyaire Medical, Inc., et al., Case No. 24-11217 (BLS), in the U.S. Bankruptcy Court for the District of Delaware, is Exhibit B, a redline version of a revised order. The proposed order authorizes the Official Committee of Unsecured Creditors to retain Berkeley Research Group, LLC as financial advisor effective as of June 28, 2024, under sections 327, 328 and 1103 of the Bankruptcy Code. It provides that BRG will be compensated under sections 328, 330 and 331 and bars BRG from seeking reimbursement of fees arising from the defense of its fee applications. It also eliminates any limitation of liability in the Application, requires pass-through of contractor costs at cost, and states that the order governs over the Application. The document is five pages.
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Case 24-11217-BLS Doc 316-2 Filed 07/25/24 Page 1 of 5
EXHIBIT B
Redline Version of Revised Order
Case 24-11217-BLS Doc 316-2 Filed 07/25/24 Page 2 of 5
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. )
) Related to Docket NoNos. ___242, 243
)
ORDER AUTHORIZING OFFICIAL COMMITTEE OF UNSECURED
CREDITORS TO RETAIN AND EMPLOY BERKELEY RESEARCH GROUP, LLC
AS FINANCIAL ADVISOR, EFFECTIVE AS OF JUNE 28, 2024
Upon the application (the “Application”)2 of the Official Committee of Unsecured
Creditors (the “Committee”) of Vyaire Medical, Inc., et al., (collectively, the “Debtors”), to
employ Berkeley Research Group, LLC (“BRG”), as its financial advisor, effective as of June 28,
2024, 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 Bankruptcy Practice and Procedure
of the United States Bankruptcy Court for the District of Delaware (the “Local Rules”); and it
appearing that (i) the Court has jurisdiction to consider the Application and the relief requested
therein in accordance with 28 U.S.C. §§ 157 and 1334; (ii) venue is proper before this Court
pursuant to 28 U.S.C. §§ 1408 and 1409; (iii) this is a core proceeding pursuant to 28 U.S.C. §§
157(b); (iv) due notice of the Application having been provided to the Office of the United States
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
Any capitalized term not defined herein shall have the meaning ascribed to it in the Application.
Case 24-11217-BLS Doc 316-2 Filed 07/25/24 Page 3 of 5
Trustee, counsel for the Debtors, counsel to the Debtors’ lenders, and any other party having
filed with the Court a request for notice; and it appearing that no other or further notice need be
provided; (v) the Court having reviewed the Application, the Declaration of David Galfus (the
“Galfus Declaration”), a Managing Director of BRG in support of the Application and attached
thereto as Exhibit B, and the other motions, pleadings, and papers filed in these cases, together
with the representations and deliberations on the record; the Court finds that, (i) the proposed
employment of BRG as financial advisor for the Committee is in the best interest of the
Committee and the Debtors’ bankruptcy estates, and (ii) BRG does not represent or hold any
interest adverse to the Committee or the Debtors’ estates and is disinterested under section
101(14) of the Bankruptcy Code, as modified by section 1103(b) of the Bankruptcy Code; and
upon all of the proceedings had before the Court, it is hereby
ORDERED that the Application is approved, as set forth herein; and it is further
ORDERED that pursuant to sections 327, 328, and 1103(a) of the Bankruptcy
Code, Bankruptcy Rule 2014 and Local Rule 2014-1, the Committee is authorized to employ
BRG for the purposes and on the terms set forth in the Application and the Galfus Declaration
effective as of June 28, 2024; and it is further
ORDERED that BRG shall file applications for compensation and reimbursement
of expenses and shall be compensated in accordance with sections 328, 330 and 331 of the
Bankruptcy Code, and such Bankruptcy Rules, and Local Rules as may then be applicable, from
time to time, and such other applicable procedures as may be fixed by order of this Court; and it
is further
2
Case 24-11217-BLS Doc 316-2 Filed 07/25/24 Page 4 of 5
ORDERED that notwithstanding anything to the contrary in the Application or the
Galfus Declaration, BRG shall not seek reimbursement of any fees or costs arising from the
defense of any of BRG’s fee applications in the Cases. In the event BRG seeks reimbursement
for attorneys’ fees and expenses, the invoices and supporting time records for the attorneys’ fees
and expenses shall be included in BRG’s fee and expense applications, and these invoices and
time records shall be in compliance with the Local Bankruptcy Rules and shall be subject to the
US Trustee Guidelines and the approval of the Bankruptcy Court pursuant to sections 330 and
331 of the Bankruptcy Code, but without regard to whether such attorneys have been retained
under section 327 of the Bankruptcy Code, and without regard to whether such attorneys’
services satisfy section 330(a)(3)(C) of the Bankruptcy Code. BRG shall not seek reimbursement
of any attorneys’ fees or costs arising from the prosecution or defense of any of BRG’s fee and
expense applications; and it is further
ORDERED that any limitation of liability or limitation on any amounts to be
contributed by the parties to the Application under the terms of the Application shall be
eliminated; and it is further
ORDERED that BRG shall use reasonable efforts to avoid any duplication of
services provided by any of the other retained professionals in these chapter 11 cases; and it is
further
3
Case 24-11217-BLS Doc 316-2 Filed 07/25/24 Page 5 of 5
ORDERED that 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 Debtors 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; and it is further
ORDERED that to the extent there is an inconsistency between the terms and
conditions set forth in the Application, the Galfus Declaration, and this Order, the provisions of
this Order shall govern; and it is further
ORDERED that the terms and conditions of this Order shall be effective and
enforceable immediately upon its entry’ and it is further
ORDERED that the Court shall retain jurisdiction to hear and determine all
matters arising from the implementation of this Order.
4
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