Vyaire - COC -AP Retention App
- Date
- 2024-07-26
Summary
Doc 329-1, filed July 26, 2024 in the jointly administered Chapter 11 cases of Vyaire Medical, Inc., et al., Case No. 24-11217 (BLS), in the U.S. Bankruptcy Court for the District of Delaware, is Exhibit 1, a Revised Proposed Order relating to Docket Nos. 241, 261. The proposed order authorizes the Debtors to retain AP Services, LLC and to designate Charles Braley as Chief Restructuring Officer effective as of the Petition Date, under an engagement letter dated as of June 6, 2024. It conditions the engagement on terms including monthly staffing and compensation reports with a fourteen-day objection period, no indemnification of APS, and no director roles for APS personnel. Success or back-end fees are left for later Court approval, and APS may not invest in the Debtors for three years after the engagement. The document is 6 pages.
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Case 24-11217-BLS Doc 329-1 Filed 07/26/24 Page 1 of 6
Exhibit 1
Revised Proposed Order
Case 24-11217-BLS Doc 329-1 Filed 07/26/24 Page 2 of 6
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 Nos. 241, 261
ORDER AUTHORIZING DEBTORS TO (I) RETAIN AP SERVICES, LLC,
(II) DESIGNATE CHARLES BRALEY AS CHIEF RESTRUCTURING OFFICER
EFFECTIVE AS OF THE PETITION DATE, AND (III) GRANTING RELATED RELIEF
Upon the application (the “Application”)2 of the above-captioned debtors (collectively,
the “Debtors”) for entry of an order (this “Order”) authorizing the Debtors to (a) retain and employ
AP Services, LLC (“APS”), (b) designate Charles Braley as Chief Restructuring Officer (“CRO”),
each pursuant to the terms of the engagement letter by and among the Debtors and APS, dated as
of June 6, 2024 (the “Engagement Letter”) effective as of the Petition Date, and (c) granting related
relief, all as more fully set forth in the Application; and upon consideration of the Braley
Declaration; and the United States District Court for the District of Delaware has 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 found that this is a core proceeding
pursuant to 28 U.S.C. § 157(b)(2), and the Court may enter a final order consistent with Article III
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 not otherwise defined herein shall have the meanings ascribed to such terms in the Application.
Case 24-11217-BLS Doc 329-1 Filed 07/26/24 Page 3 of 6
of the United States Constitution; and the Court having found that venue of this proceeding and
the Application in this district is proper pursuant to 28 U.S.C. §§ 1408 and 1409; and due and
proper notice of the Application having been provided to the parties listed therein; and it appearing
that no other or further notice need be provided; and the Court having reviewed the Application;
and the Court having held a hearing on the Application; and the Court having determined that the
legal and factual bases set forth in the Application establish just cause for the relief granted herein;
and it appearing that the relief requested in the Application is in the best interest of the Debtors,
their estates, and all 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 THAT:
1. The Application is approved as set forth in this Order.
2. Pursuant to sections 105(a) and 363(b) of the Bankruptcy Code, the Debtors are
authorized to (i) retain and employ APS and (ii) designate Charles Braley as CRO, in each instance
effective as of the Petition Date, and in accordance with the terms and conditions set forth in the
Engagement Letter attached to the Application as Exhibit B.
3. The terms of the Engagement Letter are reasonable and approved in all respects, as
modified by this Order.
4. APS is authorized to apply the Retainer to satisfy any unbilled or other remaining
prepetition fees and expenses that APS becomes aware of during its ordinary course billing review
and reconciliation. The balance of the Retainer held by APS shall be treated as an evergreen
retainer and be held by APS as security throughout these Chapter 11 Cases until APS’s fees and
expenses are fully paid.
2
Case 24-11217-BLS Doc 329-1 Filed 07/26/24 Page 4 of 6
5. Upon employment and retention by the Debtors, Mr. Braley shall be empowered
and authorized to carry out all duties and responsibilities set forth in the Engagement Letter.
6. To the extent APS uses the services of independent contractors (the “Contractors”)
in these Chapter 11 Cases, APS shall: (a) pass through the cost of such Contractors to the Debtors
at the same rate that APS pays the Contractors; (b) seek reimbursement for actual costs only;
(c) ensure that the Contractors are subject to the same conflict checks as required for APS; and
(d) file with the Court such disclosures required by Bankruptcy Rule 2014.
7. Notwithstanding anything to the contrary in the Application or the Engagement
Letter, APS’s engagement is subject to the following terms:
a. APS and its affiliates shall not act in any other capacity (for example, and
without limitation, as a financial advisor, claims agent/claims administrator,
or investor/acquirer) in connection with these Chapter 11 Cases.
b. In the event the Debtors seek to have APS Personnel assume executive
officer positions that are different than the position(s) disclosed in the
Application, or to materially change the terms of the engagement by either
(i) modifying the functions of personnel, or (ii) altering or expanding the
scope of the engagement, a motion to modify the retention shall be filed.
c. Notwithstanding anything to the contrary contained in the Application, the
Engagement Letter, or any exhibits hereto, during the course of these
Chapter 11 Cases, APS will only seek reimbursement of actual and
necessary expenses.
d. APS shall file reports of compensation earned and expenses incurred on a
monthly basis (“Compensation Reports”). APS may from time to time add
or remove staff and, as a result, APS will also file staffing reports that will
reflect the names of all full- and part-time APS Personnel involved in these
Chapter 11 Cases and each individual’s hourly billing rate (“Staffing
Reports” and, together with Compensation Reports, the “Staffing and
Compensation Reports”). APS will provide its Staffing and Compensation
Reports to: (i) the Office of the United States Trustee for the District of
Delaware (the “U.S. Trustee”), (ii) counsel to the Debtors, and (iii) counsel
to the Official Committee of Unsecured Creditors (the “Committee”) (the
“Notice Parties”). The Notice Parties shall have fourteen days after the date
each Staffing and Compensation Report is served upon them to object, and
the related compensation and expenses will be subject to Court review in
the event an objection is filed.
3
Case 24-11217-BLS Doc 329-1 Filed 07/26/24 Page 5 of 6
e. APS shall append to the Staffing and Compensation Reports time records
that contain detailed time entries describing the tasks performed on a daily
basis and the corresponding charges (time multiplied by hourly rate)
organized by project category. The time entries shall identify the time spent
completing such tasks in tenth of an hour (0.1) increments and the
corresponding charge (time multiplied by hourly rate) for each task (by
daily project category entry).
f. No principal, employee, or independent contractor of APS and its affiliates
shall serve as a director of any of the above-captioned Debtors during the
pendency of these Chapter 11 Cases.
g. The Debtors are permitted to indemnify those persons serving as corporate
officers on the same terms as provided to the Debtors’ other officers and
directors under the corporate bylaws and applicable state law, along with
insurance coverage under the Debtors’ D&O Policy.
h. There shall be no indemnification of APS or its affiliates.
i. The limitation of liability section in the Engagement Letter will be
eliminated for the duration of these Chapter 11 Cases.
j. Success fees, transaction fees, or other back-end fees shall be approved by
the Court at the conclusion of the case on a reasonableness standard and are
not being pre-approved by entry of this Order. No success fee, transaction
fee, or back-end fee shall be sought upon conversion of the case, dismissal
of the case for cause, or appointment of a trustee.
k. For a period of three years after the conclusion of the engagement, neither
APS nor any of its affiliates shall make any investments in the Debtors or
the reorganized Debtors.
l. APS Personnel serving as corporate officers of the Debtors shall be subject
to the same fiduciary duties and obligations applicable to other persons
serving in such capacity.
m. APS shall follow the applicable provisions of the Bankruptcy Code, the
Bankruptcy Rules, and the Local Rules regarding limitations on
reimbursement of expenses.
n. APS shall make appropriate disclosures of any and all facts that may have
a bearing on whether APS, its affiliates, or any individuals working on the
engagement hold/represent any interest adverse to the Debtors, their
creditors, or other parties in interest. The obligation to disclose identified in
this subparagraph is a continuing obligation.
4
Case 24-11217-BLS Doc 329-1 Filed 07/26/24 Page 6 of 6
8. The relief granted herein shall be binding upon any chapter 11 trustee appointed in
these Chapter 11 Cases, or upon any chapter 7 trustee appointed in the event of a subsequent
conversion of these Chapter 11 Cases to cases under chapter 7.
9. To the extent there is any inconsistency between the terms of the Engagement
Letter, the Application, and this Order, the terms of this Order shall govern.
10. APS shall use its reasonable efforts to avoid any unnecessary duplication of
services provided by any retained professionals in these Chapter 11 Cases.
11. Notice of the Application as provided therein shall be deemed good and sufficient
notice of such Application and the requirements of Bankruptcy Rule 6004(a) and the Local Rules
are satisfied by such notice.
12. Notwithstanding Bankruptcy Rule 6004(h), the terms and conditions of this Order
are immediately effective and enforceable upon its entry.
13. The Debtors are authorized to take all actions necessary to effectuate the relief
granted in this Order in accordance with the Application.
14. The Court retains jurisdiction with respect to all matters arising from or related to
the implementation, interpretation, and enforcement of this Order.
5
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- gov.uscourts.deb.193283.329.1.pdf
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