Full text
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
)
In re:
)
Chapter 11
)
VYAIRE MEDICAL, INC.,1
)
Case No. 24-11217 (BLS)
)
Liquidating Debtor.
)
)
DECLARATION OF JOEL AMICO OF AP SERVICES, LLC
IN SUPPORT OF PLAN ADMINISTRATOR’S OBJECTION TO MOTION OF
DATASITE LLC TO ALLOW LATE FILED ADMINISTRATIVE EXPENSE CLAIM
UNDER 11 U.S.C. § 503(B)(1)(A) AND FOR ALLOWANCE AND IMMEDIATE
PAYMENT OF AN ADMINISTRATIVE EXPENSE CLAIM
I, Joel Amico, pursuant to section 1746 of title 28 of the United States Code, hereby
declare that the following is true and correct to the best of my knowledge, information and
belief:
1.
I submit this declaration (the “Declaration”) in support of the Plan
Administrator’s Objection to Motion of Datasite LLC to Allow Late Filed Administrative
Expense Claim Under 11 U.S.C. § 503)b)(1)(A) and for Allowance and Immediate Payment of an
Administrative Expense Claim filed on March 26, 2025 at Docket No. 1046 (the “Objection”).2 I
am over the age of 18, competent to testify and authorized to submit the Declaration on behalf of
the Plan Administrator.
2.
I am a Director with AP Services, LLC (“AP Services”). AP Services was
previously retained by Vyaire Medical Inc. and its affiliated debtors (collectively, the “Debtors”)
1
This chapter 11 case is now being administered by the Plan Administrator pursuant to the terms of the Findings
of Fact, Conclusions of Law, and Order Approving the Debtors’ Disclosure Statement for, and Confirming the
Second Amended Joint Chapter 11 Plan of Vyaire Medical, Inc. and Its Debtor Affiliates Pursuant to Chapter
11 of the Bankruptcy Code [Docket No. 745] (the “Confirmation Order”). The Plan Administrator’s mailing
address is Vyaire Medical, Inc., Attn: David M. Barse, Plan Administrator, c/o Cole Schotz P.C., 500 Delaware
Avenue, Suite 600, Wilmington, DE 19801.
2
Capitalized terms not defined herein have the meanings ascribed to them in the Objection.
Case 24-11217-BLS Doc 1072 Filed 04/23/25 Page 1 of 6
2
in March 2024 to provide restructuring and financial advisory services. AP Services was
thereafter retained in the bankruptcy cases and continued to provide those services to the Debtors
through the Effective Date of the Debtors’ Plan. See Docket No. 388. During the chapter 11
cases, I worked under the direction of the Debtors’ Chief Restructuring Officer, Charles Braley,
a Partner and Managing Director of Alix Partners, LLP (an affiliate of AP Services).
3.
Following the Effective Date of the Plan, AP Services, with me as the lead, was
retained by the Plan Administrator as a consultant to, among other things, assist with the
reconciliation of claims filed against the Debtors’ estates and facilitate the wind-down of the
Debtors’ cases pursuant to the Plan and Confirmation Order. I have more than 20 years of
experience in the restructuring industry, including many years of providing consulting and
advisory services in both pre-confirmation and post-confirmation chapter 11 cases.
4.
Every matter set forth herein is based on (a) my personal knowledge and
experience as a Director with AP Services and an authorized representative of the Plan
Administrator, (b) my review, or the review of work performed by other AP Services’
consultants whom I oversee in a managerial capacity, of relevant documents, and/or (c) my
understanding based on information obtained from the Debtors’ books and records and the Plan
Administrator’s counsel.
5.
I have read the Objection, and I am familiar with the information contained in
therein. To the best of my knowledge, information and belief, the information that is contained in
the Objection is true and correct.
6.
I, and/or one or more individuals at AP Services working under my direction,
have reviewed the Debtors’ books and records and the Motion, together with any supporting
documentation attached thereto.
Case 24-11217-BLS Doc 1072 Filed 04/23/25 Page 2 of 6
3
7.
Prior to the Petition Date, on April 25, 2024, the Debtors retained PJT Partners LP
(“PJT”) to act as its investment banker in connection with the marketing and sale of their
business and assets. PJT was thereafter retained in the same capacity pursuant to an order of the
Bankruptcy Court on July 30, 2024. See Docket No. 338.
8.
With the assistance of PJT and in anticipation of the bankruptcy filing, on May 8,
2024, Vyaire entered into a service agreement with Datasite (the “Agreement”) for the purpose
of maintaining a virtual data room (the “Data Room”) in connection with the marketing and sale
of the Debtors’ assets in the bankruptcy cases.
9.
Once in chapter 11, the Debtors continued to actively market their assets and,
with the assistance of PJT and AP Services, populated the Data Room with due diligence
documents for prospective bidders to access in connection with the sale process.
10.
The marketing efforts ultimately concluded in sales for the Debtors’ businesses to
Trudell Medical Limited (“Trudell”) as the successful bidder for the respiratory diagnostics
business and ZOLL Medical Corporation (“ZOLL”) as the successful bidder for its ventilation
business.
11.
The sale to ZOLL closed on October 11, 2024 [Docket No. 626], and the sale to
Trudell closed on November 12, 2024 [Docket No. 736].
12.
Following the closing of the sales, the Debtors no longer had a need for the Data
Room as it was established to allow prospective bidders to access documents in connection with
the sale through the date of a closing.
13.
Following the sale closings, there was no requirement that the Debtors maintain
the Data Room for the benefit of ZOLL or Trudell pursuant to the terms of the asset purchase
agreements or otherwise.
Case 24-11217-BLS Doc 1072 Filed 04/23/25 Page 3 of 6
4
14.
The Debtors confirmed their Plan on November 14, 2025 [Docket No. 745], and
the Plan went effective on November 27, 2024 (the “Effective Date”) [Docket No. 810].
15.
I understand that on November 27, 2024, the Debtors’ claims and noticing agent
served Datasite with the Notice of (I) Entry of Confirmation Order, (II) Occurrence of Effective
Date, and (III) Related Bar Dates by both email and mail at two different locations. See Docket
No. 821.
16.
I understand that pursuant to the Plan, the Agreement was rejected as of the
Effective Date. It was my understanding that as of the rejection date, the Data Room would be
closed, and there was no longer a business relationship between Datasite and the Debtors.
17.
The Debtors have satisfied all obligations owed to Datasite other than the amounts
asserted in the Motion.
18.
On January 13, 2025, a former employee of the Debtors contacted AP Services
concerning a request for payment received from Datasite. On January 14, 2025, I contacted
Datasite on behalf of the Plan Administrator and requested information regarding the payment
request. Upon receipt of the information, on January 15, 2025, I advised Datasite that the alleged
amounts were not due as the Agreement had been rejected as of the Effective Date.
19.
I have reviewed the Motion and the documents attached to the Motion, including
certain activity reports. The Motion alleges that Datasite provided services in the form of
continued access to the Data Room between November 19, 2024 and January 18, 2025. As of the
rejection date (i.e. November 27, 2024), Datasite was under no obligation to allow continued
access to the Data Room.
20.
The pre-rejection date services were allegedly provided between November 19,
2024 through November 27, 2024. Based on my review of the Motion and the documents
Case 24-11217-BLS Doc 1072 Filed 04/23/25 Page 4 of 6
5
attached thereto, none of the costs or expenses in connection with the services allegedly provided
to the Debtors prior to the rejection date were necessary to preserve the Debtors estates. In fact,
no value was provided to the Debtors for these alleged services. The purpose of the Data Room
was to assist the Debtors in marketing their assets, which terminated upon the closing of the sales
of those assets. The last sale closed on November 12, 2024, and no one provided any
compensation or value to the Debtors for any access between November 19, 2024 through
November 27, 2024.
21.
In addition, any alleged services provided after the rejection date did not provide
any value to the Plan Administrator. The only representative of AP Services who accessed the
Data Room was John Tutty, who accessed the Data Room on four separate occasions. All
documents downloaded by AP Services following the rejection date were documents already
maintained by the Plan Administrator on behalf of the Debtors. The documents were downloaded
by AP Services under the belief that following rejection of the Agreement, the Debtors were
authorized to retrieve all their documents. There was no value gained by the Plan Administrator
in retrieving such documents, no assets were liquidated based on access to the Data Room, and
no one has compensated or was required to compensate the Debtors for access to the Data Room.
22.
The Motion further alleges that the Data Room was accessed by ZOLL following
the rejection date. The Plan Administrator did not authorize Zoll to access the Data Room and
was not aware that ZOLL was accessing the Data Room. The Debtors did not receive any
compensation, value, or other benefit from ZOLL based on its access to the Data Room.
Case 24-11217-BLS Doc 1072 Filed 04/23/25 Page 5 of 6
6
I declare under penalty of perjury that the foregoing is true and correct to the best of my
knowledge, information and belief.
Dated: April 23, 2025
/s/ Joel Amico
JOEL AMICO
Case 24-11217-BLS Doc 1072 Filed 04/23/25 Page 6 of 6