Order Authorizing the Retention — In re Vyaire Medical, Inc., et al.

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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)
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Debtors.
)
(Jointly Administered)
)
)
Re:  Docket No. 259
ORDER AUTHORIZING THE RETENTION
AND EMPLOYMENT OF KIRKLAND & ELLIS LLP AND
KIRKLAND & ELLIS INTERNATIONAL LLP AS ATTORNEYS FOR THE
DEBTORS AND DEBTORS IN POSSESSION EFFECTIVE AS OF JUNE 9, 2024
Upon the application (the “Application”)2 of the above-captioned debtors and debtors in
possession (collectively, the “Debtors”) for the entry of an order (the “Order”) authorizing the
Debtors to retain and employ Kirkland & Ellis LLP and Kirkland & Ellis International LLP
(collectively, “Kirkland”) as their attorneys effective as of the Petition Date, pursuant to
sections 327(a) and 330 of title 11 of the United States Code (the “Bankruptcy Code”),
rules 2014(a) and 2016 of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”),
and rules 2014-1 and 2016-1 of the Local Bankruptcy Rules for the District of Delaware
(the “Local Rules”); and the Court having reviewed the Application, the declaration of Spencer A.
Winters, the president of Spencer A. Winters, P.C., a partner of Kirkland & Ellis LLP and a partner
of Kirkland & Ellis International LLP (the “Winters Declaration”), and the declaration of John
Bibb, the Group Chief Executive Officer of Vyaire Medical, Inc. (the “Bibb Declaration”); and 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
Capitalized terms used but not otherwise defined herein shall have the meanings set forth in the Application.
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Court having found that the Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157
and 1334; and the Court having found that the Application is a core proceeding pursuant to
28 U.S.C. § 157(b)(2); 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 the Court having
found based on the representations made in the Application and in the Winters Declaration that (a)
Kirkland does not hold or represent an interest adverse to the Debtors’ estates and (b) Kirkland is
a “disinterested person” as defined in section 101(14) of the Bankruptcy Code and as required by
section 327(a) of the Bankruptcy Code; and the Court having found that the relief requested in the
Application is in the best interests of the Debtors’ estates, their creditors, and other parties in
interest; and the Court having found that the Debtors provided adequate and appropriate notice of
the Application under the circumstances and that no other or further notice is required; and the
Court having reviewed the Application and having heard statements in support of the Application
at a hearing held before the Court (the “Hearing”); and the Court having determined that the legal
and factual bases set forth in the Application and at the Hearing establish just cause for the relief
granted herein; and any objections to the relief requested herein having been withdrawn or
overruled on the merits; and after due deliberation and sufficient cause appearing therefor, IT IS
HEREBY ORDERED THAT:
1.
The Application is granted to the extent set forth herein.
2.
The Debtors are authorized to retain and employ Kirkland as their attorneys
effective as of the Petition Date in accordance with the terms and conditions set forth in the
Application and in the Engagement Letter attached hereto as Exhibit 1.
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3.
Kirkland is authorized to provide the Debtors with the professional services as
described in the Application and the Engagement Letter.  Specifically, but without limitation,
Kirkland will render the following legal services:
a.
advising the Debtors with respect to their powers and duties as debtors in
possession in the continued management and operation of their businesses
and properties;
b.
advising and consulting on their conduct during these chapter 11 cases,
including all of the legal and administrative requirements of operating in
chapter 11;
c.
attending meetings and negotiating with representatives of creditors and
other parties in interest;
d.
taking all necessary actions to protect and preserve the Debtors’ estates,
including prosecuting actions on the Debtors’ behalf, defending any action
commenced against the Debtors, and representing the Debtors in
negotiations concerning litigation in which the Debtors are involved,
including objections to claims filed against the Debtors’ estates;
e.
preparing pleadings in connection with these chapter 11 cases, including
motions, applications, answers, orders, reports, and papers necessary or
otherwise beneficial to the administration of the Debtors’ estates;
f.
representing the Debtors in connection with obtaining authority to continue
using cash collateral and postpetition financing;
g.
advising the Debtors in connection with any potential sale of assets;
h.
appearing before the Court and any appellate courts to represent the interests
of the Debtors’ estates;
i.
advising the Debtors regarding tax matters;
j.
taking any necessary action on behalf of the Debtors to negotiate, prepare,
and obtain approval of a disclosure statement and confirmation of a
chapter 11 plan and all documents related thereto; and
k.
performing all other necessary legal services for the Debtors in connection
with the prosecution of these chapter 11 cases, including:  (i) analyzing the
Debtors’ leases and contracts and the assumption and assignment or
rejection thereof; (ii) analyzing the validity of liens against the Debtors’
assets; and (iii) advising the Debtors on corporate and litigation matters.
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4.
Kirkland shall apply for compensation for professional services rendered and
reimbursement of expenses incurred in connection with the Debtors’ chapter 11 cases in
compliance with sections 330 and 331 of the Bankruptcy Code and applicable provisions of the
Bankruptcy Rules, Local Rules, and any other applicable procedures and orders of the Court.
Kirkland also intends to make a reasonable effort to comply with the U.S. Trustee’s requests for
information and additional disclosures as set forth in the Guidelines for Reviewing Applications
for Compensation and Reimbursement of Expenses Filed under 11 U.S.C. § 330 by Attorneys in
Larger Chapter 11 Cases Effective as of November 1, 2013, both in connection with the
Application and the interim and final fee applications to be filed by Kirkland in these chapter 11
cases.
5.
Notwithstanding anything in the Engagement Letter to the contrary, Kirkland shall
apply any remaining amounts of its prepetition special purpose retainer as a credit toward
postpetition fees and expenses, after such postpetition fees and expenses are approved pursuant to
an order of the Court awarding fees and expenses to Kirkland.  Kirkland is authorized without
further order of the Court to reserve and apply amounts from the prepetition special purpose
retainer that would otherwise be applied toward payment of postpetition fees and expenses as are
necessary and appropriate to compensate and reimburse Kirkland for fees or expenses incurred on
or prior to the Petition Date consistent with its ordinary course billing practices.
6.
Notwithstanding anything to the contrary in the Application, the Engagement
Letter, or the Declarations attached to the Application, the reimbursement provisions allowing the
reimbursement of fees and expenses incurred in connection with participating in, preparing for, or
responding to any action, claim, suit, or proceeding brought by or against any party that relates to
the legal services provided under the Engagement Letter and fees for defending any objection to
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Kirkland’s fee applications under the Bankruptcy Code are not approved pending further order of
the Court.
7.
Notwithstanding anything contained in the Application, its exhibits, and/or any
supporting filings, including the Engagement Letter, the Debtors’ rights to object to interim and/or
final allowance of Kirkland’s fees are fully reserved under the applicable bankruptcy law and the
procedures set forth in the Interim Compensation Procedures Order.
8.
Kirkland shall not charge a markup to the Debtors with respect to fees billed by
contract attorneys who are hired by Kirkland to provide services to the Debtors and shall ensure
that any such contract attorneys are subject to conflict checks and disclosures in accordance with
the requirements of the Bankruptcy Code and Bankruptcy Rules.
9.
Kirkland shall provide ten-business-days’ notice to the Debtors, the U.S. Trustee,
and the Committee before any increases in the rates set forth in the Application or the Engagement
Letter are implemented and shall file such notice with the Court.  The U.S. Trustee retains all rights
to object to any rate increase on all grounds, including the reasonableness standard set forth in
section 330 of the Bankruptcy Code, and the Court retains the right to review any rate increase
pursuant to section 330 of the Bankruptcy Code.
10.
The Debtors and Kirkland are authorized to take all actions necessary to effectuate
the relief granted pursuant to this Order in accordance with the Application.
11.
Notice of the Application as provided therein is deemed to be good and sufficient
notice of such Application, and the requirements of the Local Rules are satisfied by the contents
of the Application.
12.
To the extent the Application, the Winters Declaration, the Bibb Declaration, or the
Engagement Letter is inconsistent with this Order, the terms of this Order shall govern.
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13.
The terms and conditions of this Order shall be immediately effective and
enforceable upon its entry.
14.
The Court retains jurisdiction with respect to all matters arising from or related to
the implementation of this Order.
BRENDAN L. SHANNON
UNITED STATES BANKRUPTCY JUDGE
Dated: August 5th, 2024
Wilmington, Delaware
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