Revised Order on Retention of Berkeley Research Group — In re Vyaire Medical, Inc. (Bankr. D. Del.)
- Date
- 2024-07-25
Summary
Doc. 316-1, 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 A, a revised proposed order. The order authorizes the Official Committee of Unsecured Creditors to retain and employ Berkeley Research Group, LLC as financial advisor effective as of June 28, 2024, and approves the Application. It provides that BRG will be compensated under sections 328, 330 and 331 of the Bankruptcy Code 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 contractor costs to be passed through at the rate BRG pays, and states that the order governs over the Application. The document is five pages.
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Case 24-11217-BLS Doc 316-1 Filed 07/25/24 Page 1 of 5
EXHIBIT A
Revised Order
Case 24-11217-BLS Doc 316-1 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 Nos. 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 Trustee, counsel for the
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 316-1 Filed 07/25/24 Page 3 of 5
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 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 316-1 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
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
3
Case 24-11217-BLS Doc 316-1 Filed 07/25/24 Page 5 of 5
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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