will provide services outlined below. This letter and all Terms and Conditions form an integral part of this Agreement between Ayming
- Date
- 2024-12-24
Summary
Doc 885-2, filed December 24, 2024 in Case 24-11217-BLS, is Exhibit A: an engagement letter and terms and conditions under which Ayming USA Inc. would perform Research and Development (R&D) Tax Credit Study Services for Vyaire Medical Inc. The letter describes a Feasibility Analysis, qualification and quantification of R&D expenses, a proforma Form 6765, and representation before the Internal Revenue Service in examination and appeals. It covers tax years 2018 through 2023 and all open tax years, with success-based fees of 14% on the first $1,000,000 in credits, 12% from $1,000,001 to $3,000,000, and 10% above $3,000,000. The attached terms address confidentiality, invoices payable within 90 days in three portions, a Form 2848 power of attorney, annual renewal, expenses capped at $1,500 without permission, and Texas governing law.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
Full text
Case 24-11217-BLS Doc 885-2 Filed 12/24/24 Page 1 of 5
EXHIBIT A
Case 24-11217-BLS Doc 885-2 Filed 12/24/24 Page 2 of 5
AYMING USA INC.
5718 Westheimer Rd, Suite 1420
Houston, TX 77057
Aymingusa.com
Caleb Moo e J uary 27 , 2023
Vic P es e , a c &T e s y
Vyaire Medical Inc.
26125 North Riverwoods Blvd,
Mettawa, IL
60045
Dear Caleb,
Thank you for considering Ay USA, nc (Ayming) to perform your Research and Development (R&D) Tax Credit Study Services
as defined below (Services) for [Vy M c c (the Co p y). Ayming through its employees and/or specialized consultants,
will provide services outlined below. This letter and all Terms and Conditions form an integral part of this Agreement between Ayming
and the Company (each a P y and collectively the a es) that are required to fulfil this agreement.
R& TAX CR D T S DY SERV C S
AYMINGS RESPONSIBILITIES
s i y A ys s
Ayming will gather information to gain an understanding of Companys business activities and practices including project
information, potential qualified activities, documentation processes and accounting. With this information, Ayming will perform a
Feasibility Analysis to validate that Company qualifies for the R&D Tax Credit, and to develop a credit range estimate for the
approximate benefits. Each company has unique policies and procedures so Study processes and deadlines will be tailored to
your company. At the conclusion of the Feasibility Analysis Ayming will provide the Company with a credit estimate range (between
X to Y dollars).
Q fic Quan ic
Through an interview process, Ayming will determine the involvement and contribution of the eligible employees and/or
contractors towards the qualified R&D activities. Qualified expenses will be determined and quantified. Technical and financial
documentation will be collected to substantiate qualified research projects. Finally, a proforma Form 6765 and requisite State
schedules (if any) will be submitted to Company and/or your CPA.
epo , o dm p A i De ens
Ayming will prepare and deliver the supporting documentation. Ayming will also maintain the documents received from Company
for a period of three years from the date of performing a Study. In addition, Ayming will represent Company through the
Examination and Appellate Conference processes with respect to any challenge by the Internal Revenue Service and/or State
Taxing Authorities of the benefits taken in relation to the R&D Tax Credit Study in accordance with the above provisions.
COMPANYS RESPONSIBILITIES
Company agrees and recognizes that time is of the essence regarding properly quantifying, calculating and timely filing tax forms
to receive the tax refunds the Company is owed. To this end, Company agrees to use commercially reasonable efforts to timely
provide Ayming with adequate and necessary data, information, financial reports, and access to its employees to comply with
project and statutory deadlines.
Ensure the R&D claims are made by filing any and all amended returns related to these services with the appropriate tax authority
within the earlier of thirty (30) days of credit delivery to Company or prior to the statute of limitations.
Amended returns shall be filed in accordance with the instructions provided with the final credits release and shall be sent via
certified mail or IRS approved electronic equivalent.
R&D REMUNERATION and TERM
The initial term of this R&D engagement is for all open tax years as well as tax years 2018 through 2023. The fee for our Services is
defined below for each of the applicable tax years. Fees shall be billed in accordance with the terms and conditions attached hereto.
14% Success Based Fee for Net Federal and State Credits Identified for the first $1,000,000 in credits;
12% Success Based Fee for Net Federal and State Credits identified from $1,000,001 to $3,000,000 in credits; and
10% Success Based Fee for Net Federal and State Credits identified for credits in excess if $3,000,000
If these terms (including below All Terms and Conditions, which are attached and incorporated herein by reference) are acceptable to
you, please sign, date, scan and send full agreement to us or indicate your signature through the DocuSign process. We are looking
forward to serving you as a valuable client and sharing this mutually beneficial relationship.
Case 24-11217-BLS Doc 885-2 Filed 12/24/24 Page 3 of 5
Vyaire Medical Inc AYMING USA INC.
Per: _______ ________ Per: _________ ___
Title: _________________________________ Title: _________________________________
Date: _________________________________ Date: _________________________________
AYMING USA BUSINESS PERFORMANCE CONSULTING
Terms and Conditions
Case 24-11217-BLS Doc 885-2 Filed 12/24/24 Page 4 of 5
A. N c u ,P o y a C f den For the purposes of this Agreement C den ma on of a Party
means all information and data (in any format or medium) relating to the Party or to its business, strategies, pricing, personnel, customers,
suppliers, products or services that is directly or indirectly disclosed to or accessed by the other Party, whether or not any of the information
is identified as being confidential, but excludes any information that the recipient proves: (i) was lawfully in its possession before receiving
it from the disclosing Party; (ii) was provided in good faith to the recipient by a third party that had no obligation to keep it confidential; or
(iii) is or becomes generally available to the public through no fault of the recipient.
The Company acknowledges that all of the techniques, knowledge and methods used by Ayming also constitute Confidential Information.
A Party (the Rec p e ) that receives Confidential Information from the other Party (the D cl ) will keep that Confidential Information
in strict confidence and will use all reasonable measures to protect the Confidential Information from unauthorized use, access, disclosure,
and duplication.
The Recipient will not, without the Disclosers prior written consent: (a) disclose any Confidential Information to any third party other than
as necessary to fulfil the Recipients obligations or exercise the Recipients rights under this Agreement; (b) or use any Confidential
Information for any purpose other than as necessary to fulfil the Recipients obligations or exercise the Recipients rights under this
Agreement; (c) duplicate, transfer, sell, publish, transmit, modify, reverse-engineer or take any benefit from any Confidential Information;
or (d) directly or indirectly assist, facilitate or encourage any third party to carry on any activity that the Recipient is not permitted to carry
on under this section.
The Recipient will restrict access to the Disclosers Confidential Information to those of its employees, directors, officers, mandataries,
and other representatives (collectively, the R es a ves) who need to know that Confidential Information to perform their duties in
relation to the purpose set out in this section, and the Recipient will cause its Representatives to comply this section and will be responsible
and liable for any Representatives breach of this section.
B. Paymen v ces a e Ca . Aymings invoices are payable within 90 days of receipt. The invoices will be broken into three
portions of the total fee (25% estimated, 50%, remaining balance). Ayming will issue an initial invoice for 25% of the fee based on the low
end of the credit estimate at the conclusion of the Feasibility Analysis. Ayming will issue a second invoice when the credit calculations are
delivered equal to 50% of the fee based on the Net Credits identified and delivered to Company. Ayming will issue a final invoice on
completion of the Study for any remaining balance, based on the Net Credits identified and any adjustments to the initial 25% which was
calculated based on the Feasibility Study. Without limiting its rights or remedies, Ayming shall have the right to halt or terminate its services
and / or withhold the final documentation until payment is received on all invoices. es o over ue ccou s cc e 2% e n m
sa 90 day fol w ng e da e p ym n s d e. P ase e he e a s a se so e y he cr d ts f dw
e y o b e p a ya i j me e eme or z o / a z t o tax bene t he Company fa to ad e
any o o o s ov s , Ay n ay suspend per o manc f s serv ces Aymi s i a on pr vid a t d e se s v s
y b d em to e u a void b Aym o d c o
C. em o x eP w A o ey Company understands that Ayming may require Company to execute Form 2848,
Power of Attorney, so that Ayming may check on the status of the refund claim and answer questions and queries presented to Company
by the Service as necessary with regard to the tax credit and or refund claim.
D. T Upon the end of the initial term expressed in the Agreement, this Agreement shall automatically renew annually, unless
terminated in writing by either Party giving at least three (3) months notice before the beginning of the renewal period in question.
E. ia o D a e Exc ex e y e o A e me , ther Par y ha a m nor e e pon o e ch
her or y c a ms, a it es o x e s s at o hs r e a r ga e mou xc s o t es d Aymi by
Com y n no even s al Aym i s e so e le co seq , s c al, i di ct, c de t , u ve, o x m lary osses
r es e a o s A eement T s mi a iab ty p ov s n sha l ap y t h f l s x e w, w the i o t c ,
s , , or e w se
F. T dP e a d a U Except as otherwise agreed, all services hereunder shall be solely for Companys internal purposes
and use, and this Agreement does not create privity between Ayming and any person or party other than Company. This Agreement is not
intended for the express or implied benefit of any third party. No third party is entitled to rely, in any manner or for any purpose, on the
advice, opinions, reports, or other services of Ayming.
G. xpen e Company shall reimburse Ayming for all out-of-pocket expenses including, but not limited to, reasonable travel
expenses incurred on Companys behalf during the implementation and/or audit processes. Expenses shall not exceed $1,500 without
Companys permission.
H. o ma o and Da Ayming shall be entitled to assume, without independent verification, the accuracy of all representations,
assumptions, information and data that Company and its representatives provide to Ayming. All assumptions, representations, information
and data to be supplied by Company and its representatives will be complete and accurate to the best of its knowledge.
I. ed o Cu en Tax w Company understands that any tax assistance provided pursuant hereto will be based upon the law,
regulations, cases, rulings and other tax authority in effect at the time specific tax assistance is provided. If there are subsequent changes
in or to the foregoing tax authorities (for which Ayming shall have no specific responsibility to advise Company), Company acknowledges
that such changes may result in that tax assistance being rendered invalid or necessitate (upon Companys request) a reconsideration of
that prior tax assistance.
J. Gov i w d Sev a l y These Terms and Conditions, and the Agreement letter to which these they are appended,
including any appendix and exhibits, shall be governed by, and construed in accordance with, the laws of the State of Texas (without giving
effect to the choice of law principles thereof). Furthermore, if any action is brought by either party, the parties agree that such action shall
be brought within the jurisdiction of the State of Texas. Sole venue for disputes herein shall be in the State of Texas. If any provision of this
Agreement is found by a court of competent jurisdiction to be unenforceable, such provision shall not affect the other provisions, but such
unenforceable provision shall be deemed modified to the extent necessary to render it enforceable, preserving to the fullest extent
permissible the intent of the parties set forth in this Agreement.
K. Do m e o Company must maintain all records substantiating their tax credits for at least three years from the period
the credits are utilized or the period that such tax years remain subject to audit by the Internal Revenue Service.
L. D y o C op e Ayming relies upon the documentation, representations and other factual information provided by Company
to implement and defend (in the event of audit) Tax Credits identified. If it is determined that the documentation, representations or other
factual information provided by Company are false or if Company fails to cooperate with Ayming by not providing information or
documentation in a reasonable time period during the implementation of Companys study or defense of Companys position in audit,
Aymings obligation to provide audit defense may be deemed to be null and voidable at Aymings sole discretion.
AYMING USA BUSINESS PERFORMANCE CONSULTING
DocuSign Envelope ID: 101DE0BC-6907-49F5-AB95-1 BF953O2A28A
Case 24-11217-BLS Doc 885-2 Filed 12/24/24 Page 5 of 5
AYMING BANKING DETAILS
•
ABA Routing
iiC ber." u m
Swift Code:
Account Number:
• Notifications must be sent to accountsreoeivable@aymongusa.com
AYMING USA BUSINESS PERFORMANCE CONSULTING
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