Notice (2025-03-31)
- Date
- 2025-03-31
Summary
Exhibit 1, filed March 31, 2025 as Doc 1052-1 in Case 24-11217-BLS, the Vyaire Medical, Inc. bankruptcy in the U.S. Bankruptcy Court for the District of Delaware. The 17-page exhibit opens with Claim No. 148, an Official Form 410 proof of claim by Ayming USA, Inc. recorded as filed August 02, 2024. The form states a claim of $1,217,673.89, unsecured and without priority, on the basis of breach of contract for unpaid tax consulting services. A second copy of the same proof of claim form follows. The exhibit ends with Ayming USA terms and conditions providing that the agreement is governed by the laws of the State of Texas.
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
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Case 24-11217-BLS Doc 1052-1 Filed 03/31/25 Page 1 of 17
Exhibit 1
Case 24-11217-BLS Doc 1052-1 Filed 03/31/25 Page 2 of 17
Debtor: Vyaire Medical, Inc.
UNITED STATES BANKRUPTCY COURT DISTRICT OF DELAWARE
Case Number: 24-11217
FILED
Claim No. 148
August 02, 2024
By Omni Claims Agent
Official Form 410 For U.S. Bankruptcy Court
Proof of Claim District of Delaware
04/22
Read
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make a request for payment of an administrative expense. Make such a request according to 11 U.S.C. § 503.
request for payment of an administrative expense. Make such a request according to 11 U.S.C. § 503.
Filers must leave out or redact information that is entitled to privacy on this form or on any attached documents. Attach redacted copies of any
Filers musthat
documents leave out or
support redact
the information
claim, such as that is entitled
promissory notes,to privacy
purchaseon this form
orders, or on any
invoices, attached
itemized documents.
statements of running redacted copies
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contracts, documents
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mortgages, the security
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explain Do not send original documents; they may be destroyed after scanning. If the documents are not available, explain in an attachment.
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A
A person
person who
who files
files aa fraudulent
fraudulent claim
claim could
could be
be fined
fined up
up to
to $500,000,
$500,000, imprisoned for up
imprisoned for up to
to 5
5 years,
years, or
or both. 18U.S.C.
both. 18 U.S.C.§§
§§152,
152,157,
157,and
and3571.
3571.
Fill in all the information about the claim as of the date the case was filed. That date is on the notice of bankruptcy (Form 309) that you received.
Fill in all the information about the claim as of the date the case was filed. That date is on the notice of bankruptcy (Form 309) that you received.
Carefully read instructions included with this Proof of Claim before completing.
Part 1: Identify the Claim
1. Who is the current creditor? Ayming USA, Inc.
Name of the current creditor (the person or entity to be paid for this claim)
Other names the creditor used with the debtor
2. Has this claim been acquired X No
from someone else? Yes From whom?
3. Where should notices and Where should notices to the creditor be sent? Where should payments to the creditor be sent? (if
payments to the creditor be different)
sent?
William N. Haacker Ayming USA, Inc.
Federal Rule of NameWoodway Dr., Suite 700 NameAugusta Drive, Suite 805
6363 2603
Bankruptcy Procedure
(FRBP) 2002(g)
Number Street Number Street
Houston, TX 77057 Houston, TX 77057
City State ZIP Code City State ZIP Code
Contact Phone 713-917 -0024 Contact Phone
Will.Haacker@dtlawyers.com accountsreceivable@aymingusa.com
Contact email Contact email
Uniform claim identifier for electronic payments in chapter 13 (if you use one)
4. Does this claim amend one X No
already filed? Yes Claim Number on court claims registry (if known) Filed On
MM / DD / YYYY
5. Do you know if anyone else
has filed a proof of claim for X No
this claim? Yes Who made the earlier filing?
Official Form 410 Proof of Claim
Case 24-11217-BLS Doc 1052-1 Filed 03/31/25 Page 3 of 17
Part 2: Give Information About the Claim as of the Date the Case Was Filed
6. Do you have any number you
use to identify the debtor?
X No
Yes Last 4 digits of the debtor's account or any number you use to identify the debtor:
7. How much is the claim? $ $1,217,673.89 Does this amount include interest or other charges?
X No
Yes Attach statement itemizing interest, fees, expenses, or other
charges required by Bankruptcy Rule 3001(c)(2)(A).
8. What is the basis of the Examples: Goods sold, money loaned, lease, services performed, personal injury or wrongful death, or credit card.
claim?
Attach redacted copies of any documents supporting the claim required by Bankruptcy Rule 3001(c).
Limit disclosing information that is entitled to privacy, such as health care information
Breach of Contact / Unpaid Tax Consulting Services
9. Is all or part of the claim X No
secured? Yes The claim is secured by a lien on property
Nature of property:
Real Estate If the claim is secured by the debtor's principal residence, file a Mortgage Proof of Claim
Attachment (Official Form 410-A) with this Proof of Claim
Motor Vehicle
Other Describe:
Basis for perfection:
Attach redacted copies of documents, if any, that show evidence of perfection of a security interest (for example,
a mortgage, lien, certificate of title, financing statement, or other document that shows the lien has been filed or
recorded.
Value of Property: $
Amount of the claim that is secured: $
Amount of the claim that is unsecured: $ (The sum of the secured and
unsecured amounts should match the
amount in line 7).
Amount necessary to cure any default as of the date of the petition: $
Annual Interest Rate: (when case was filed) ____________%
X Fixed
Variable
10. Is this claim based on a X No
lease? Yes Amount necessary to cure any default as of the date of the petition. $
11. Is this claim subject to a X No
right of setoff? Yes Identify the property:
12. Is this claim for the value X No
of goods received by the Yes Amount of 503(b)(9) Claim: $
debtor within 20 days
before the
commencement date of
this case
(11 U.S.C. § 503(b)(9)).?
Official Form 410 Proof of Claim
Case 24-11217-BLS Doc 1052-1 Filed 03/31/25 Page 4 of 17
13. Is all or part of the claim X No
entitled to priority under Amount entitled to priority
Yes Check one:
11 U.S.C. § 507(a)?
Domestic support obligations (including alimony and child support) under
11 U.S.C. § 507(a)(1)(A) or (a)(1)(B). $
A claim may be partly
priority and partly
Up to $3,350* of deposits toward purchase, lease, or rental of property or services
nonpriority. For example,
for personal, family, or household use. 11 U.S.C. § 507(a)(7).
in some categories, the $
law limits the amount
Wages, salaries, or commissions (up to $15,150*) earned within 180 days before
entitled to priority.
the bankruptcy petition is filed or the debtor's business ends, whichever is earlier. $
11 U.S.C. § 507(a)(4).
Taxes or penalties owed to governmental units. 11 U.S.C. § 507(a)(8). $
Contributions to an employee benefit plan 11 U.S.C. § 507(a)(5). $
Other. Specify subsection of 11 U.S.C. § 507(a)(___) that applies. $
* Amounts are subject to adjustment on 4/01/25 and every 3 years after that for cases begun on or after the date of adjustment.
Part 3: Sign Below
The person completing Check the appropriate box:
this proof of claim must
sign and date it. X I am the creditor.
FRBP 9011(b). I am the creditor's attorney or authorized agent.
I am the trustee, or the debtor, or their authorized agent. Bankruptcy Rule 3004.
If you file this claim
electronically, FRBP I am the guarantor, surety, endorser, or other codebtor. Bankruptcy Rule 3005.
5005(a)(2) authorizes
courts to establish local I understand that an authorized signature on this Proof of Claim serves as an acknowlegment that when calculating the
rules specifying what a
signature is. amount of the claim, the creditor gave the debtor credit for any payments received toward the debt.
I have examined the information in this Proof of Claim and have a reasonable belief that the information is true
A person who files a and correct.
fraudulent claim could be
fined up to $500,000, I declare under penalty of perjury that the foregoing is true and correct.
imprisoned for up to 5
years, or both.
18 U.S.C. §§ 152, 157, and Executed on date 8/2/2024
3571. MM / DD / YYYY
/s/ Nicholas Moringo
Signature
Print the name of the person who is completing and signing this claim:
Name Nicholas Moringo
First Name Middle Name Last Name
Title Senior Associate
Company Ayming USA, Inc.
Identify the corporate servicer as the company if the authorized agent is a servicer.
2603 Augusta Drive, Suite 805
Address
Number Street
Houston, TX 77057
City State ZIP Code
NMoringo@aymingusa.com
Contact Phone 346-453-9153 Email
Official Form 410 Proof of Claim
Case 24-11217-BLS Doc 1052-1 Filed 03/31/25 Page 5 of 17
------------------------------
FiII in this information to identify the case:
Debtor 1 Vyaire Medical Inc.
Debtor 2
(Spouse, if filing)
United States Banl<ruptcy Court for the: District of Delaware
case number 24-11 217-BLS
Official Form 410
Proof of Claim 04122
Read the instructions before filling out t his form . Th is form is for making a c laim for payment in a bankruptcy case. Do not use this form t o
make a request for payment of an administrative expense. Make s uch a request according to 11 U.S.C. § 503.
Filers must leave out or redact information that is entitled to privacy on this form or on any attached documents. Attach redacted copies of any
documents that support the claim, such as promissory notes, purchase orders, invoices, itemized statements of running accounts, contracts, judgments,
mortgages, and security agreements. Do not send original documents; they may be destroyed after scanning. If the documents are not available,
explain in an attachment.
A person who files a fraudulent claim could be fined up to $500,000, imprisoned for up to 5 years, or both. 18 U.S.C. §§ 152, 157, and 3571.
Fill in all the information about the claim as of the date the case was filed. That date is on the notice of bankruptcy (Form 309) that you received.
Identify the Claim
1. Who is the current
creditor? Ayming USA, Inc.
Name of the current creditor (the person or enttty to be paid for this claim)
Other names the creditor used with the debtor
2. Has this claim been
acquired from
liZI No
someone else? D Yes. From whom?
3. Where should notices Where should notices to the creditor be sent? Where should payments to the creditor be sent? (if
and payments to the different)
creditor be sent?
William N. Haacker Ayming USA, Inc.
Federal Rule of Name Name
Bankruptcy Procedure
(FRBP) 2002(g) 6363 Woodway Dr., Suite 700 2603 Augusta Drive, Suite 805
Number Street Number street
Houston TX 77057 Houston TX 77057
City state ZIP Code City State ZIP Code
contact phone 713-917 -0024 Contact phone
Contact email Will. Haacker@dtlawyers.com Contact email accountsreceivable@aymingusa.com
Uniform claim identifier for electronic payments in Chapter 13 (if you use one}:
------------------------
4. Does this claim amend liZI No
one already fi led?
D Yes. Claim number on court claims registry (if known) ___ Filed on
MM I DD I yyyy
5. Do you know if anyone liZI No
else has fi led a proof D Yes. Who made the earlier filing?
of c laim f or this c laim?
Official Form 4 10 Proof of Claim page 1
Case 24-11217-BLS Doc 1052-1 Filed 03/31/25 Page 6 of 17
Give Information About the Claim as of the Date the Case Was Filed
6. Do you have any number fiZi No
you use to i dentify the 0 Yes. Last 4 digits of the debtor's account or any number you use to identify the debtor: _ _ _ _ _ ___
debtor ?
7. How m uch is the cl aim? $_1_,2 _7_3_.8_9_ _ _ _ _ _ _ _. Does this amount include interest or other charges?
_1_7_,6
lif No
0 Yes. Attach statement itemizing interest, fees, expenses, or other
charges required by Bankruptcy Rule 3001(c)(2)(A).
8. What is the basis of the Examples: Goods sold, money loaned, lease, services performed, personal injury or wrongful death, or credit card.
claim?
Attach redacted copies of any documents supporting the claim required by Bankruptcy Rule 3001(c).
Limit disclosing information that is entitled to privacy, such as health care information.
Breach of Contact/ Unpaid Tax Consulting Services
9. Is all or part of the claim 6Zi No
secured? 0 Yes. The claim is secured by a lien on property.
Nature of property:
0 Real estate. If the claim is secured by the debtor's principal residence, file a Mortgage Proof of Claim
Attachment (Official Form 410-A) with this Proof of Claim.
0 Motor vehicle
0 Other. Describe:
Basis for perfection:
Attach redacted copies of documents, if any, that show evidence of perfection of a security interest (for
example, a mortgage, lien, certificate of title, financing statement, or other document that shows the lien has
been filed or recorded.)
Value of property $_ _ _ _ _ __
Am ount of the claim that is secured: $ _ _ _ _ _ _ __
Amount of the claim that is unsecured: $ _ _ _ _ _ _ _ _ (The sum of the secured and unsecured
amounts should match the amount in line 7.)
Amount necessary to cure any default as of the date of the petition : $_ _ _ _ _ _ _ __
Annual Interest Rate (when case was filed)_ _ _%
0 Fixed
0 Variable
10. Is th is claim based o n a 6Zi No
lease?
0 Yes. Amount necessary to cure any default as of the date of the petition. $_ _ _ _ _ _ _ __
11 . Is this claim subject to a fiZi No
right of setoff?
0 Yes. Identify the property _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
Official Form 410 Proof of Claim page2
Case 24-11217-BLS Doc 1052-1 Filed 03/31/25 Page 7 of 17
12. Is all or part of the claim lif No
entitled to priority under
11 U.S.C. § 507(a)? □ Yes. Check one. Amount entitled to priority
A claim may be partly □ Domestic support obligations (including alimony and child support) under
11 U.SC. § 507(a)(1 )(A) or (a)(1}(B). $_ _ _ _ _ _ _ __
priority and partly
nonpriority. For example,
in some categories, the 0 Up to $3,350• of deposits toward purchase, lease, or rental of property or services for
law limits the amount personal, family, or household use. 11 U.SC. § 507(a)(7) $_ _ _ _ _ _ _ __
entitled to priority
0 Wages, salaries, or commissions (up to $15, 150•) earned within 180 days before the
bankruptcy petition is filed or the debtor's business ends, whichever is earlier. $_ _ _ _ _ _ _ __
11 U.SC. § 507(a)(4)
0 Taxes or penalties owed to governmental units. 11 U.S.C. § 507(a)(8) $_ _ _ _ _ _ __
0 Contributions to an employee benefit plan. 11 U.S.C. § 507(a)(5). $_ _ _ _ _ _ __
0 Other. Specify subsection of 11 U.S.C. § 507(a)LJ that applies. $_ _ _ _ _ _ __
• Amounts are subject to adjustment on 4/01/25 anel every 3 years after that for cases begun on or after the elate of adjustment
Sign Below
The person completing Check the appropriate box.·
this proof of claim must
sign and date it. lif I am the creditor.
FRBP 9011(b). 0 I am the creditor's attorney or authorized agent.
If you file this claim 0 I am the trustee, or the debtor, or their authorized agent. Bankruptcy Rule 3004.
electronically, FRBP
5005(a)(2) authorizes courts 0 I am a guarantor, surety, endorser, or other codebtor. Bankruptcy Rule 3005.
to establish local rules
specifying what a signature
I understand that an authorized signature on this Proof of Claim serves as an acknowledgment that when calculating the
is.
amount of the claim, the creditor gave the debtor credit for any payments received toward the debt.
A person who files a
fra udulent claim could be I have examined the information in this Proof of Claim and have a reasonable belief that the information is true
fined up to $500,000, and correct.
imprisoned for up to 5
years, or both.
I declare under penalty of perjury that the foregoing is true and correct.
18 U.S.C. §§ 152, 157, and
3571. 08/02/24
Executed on date
MM/ DD / YYYY
M~ <-'ulll.lOM U:l.SC:01)
Signature
Print the name of the person who is completing and signing this claim:
Name Nicholas Moringo
First name Mielellename Last name
Title Senior Associate
Company Ayming USA, Inc.
Identify the corporate servicer as the company if the authorized agent is a servicer.
Aelelress 2603 Augusta Drive, Suite 805
Number Street
Houston TX 77057
City State ZIP Coele
Contact phone 346-453-9153 Email NMoringo@aymingusa.com
Official Form 410 Proof of Claim page 3
Case 24-11217-BLS Doc 1052-1 Filed 03/31/25 Page 8 of 17
ADDENDUM TO PROOF OF CLAIM
This Addendum is attached to and a part of the proof of claim filed by Ayming USA, Inc.
(Ayming).
7. HOW MUCH IS THE CLAIM? (continued):
8. WHAT IS THE BASIS OF THE CLAIM? (continued):
The amounts due as of the date of this filing are based upon the fee structures set forth
under the Remuneration and Term sections of the January 23, 2023 Agreement and November
13, 2023 Agreement. The services provided under those agreements were, respectively related to
analysis and consultation related to: 1) Research & Development (R&D) Tax Credits; and 2)
expenses under I.R.C. Section 174.
The fees are premised upon the tax credits identified between 2020 and 2022:
Total Gross Federal and
StateR&D Tax Credits (Tax
Year 2020-2022)
$ 11,201,738.00
The fee associated with the R&D Tax Credits is a Success Based Fee with a scaled
percentage that decreases at $1,000,000 and $3,000,000 of the identified R&D Tax Credits:
R&D Tax Credit Fee Structure (See Jan. 23, 2023 Agreement)
$1 - $1,000,001 - Total R&D Tax
$1,000,000 $3,000,000 $3,000,001+ Credit Fee
14% 12% 10%
$ 140,000.00 $ 239,999.88 $ 820,173.70 $ 1,200,173.58
The fee associated with Section 174 is a Success Based Fee based upon 10% of the fee
associated with R&D Tax Credit fee for the tax year ending September 2023:
Section 174 Fee Structure (See Nov. 13, 2023
Agreement)
R&D Tax Fee Associated
Credit (Year with R&D Tax
ending Sept. Credit (Year Total Section
2023) ending Sept. 2023) 174 Fee
$ 1,750,031.00 $ 175,003.10 $ 17,500.31
Case 24-11217-BLS Doc 1052-1 Filed 03/31/25 Page 9 of 17
In total, the fees total $1,217,673.89:
Total Fees Summary
R&D Tax Credit Fee $ 1,200,173.58
Section 174 Fee $ 17,500.31
Total Fees Owed $ 1,217,673.89
Ayming reserves its right to amend, modify, alter, supplement, replace, or withdraw this
Proof of Claim and/or any attachments or exhibits. In submitting this Proof of Claim, Ayming does
not waive any of the following:
Any obligations owed to Ayming, any right to any security that may be determined to be
held by him or for its benefit, or any rights of action that he may have against the Debtor
or any other person or entity including, without limitation, the right to assert some or all of
the its attorneys fees and costs incurred in connection with this Bankruptcy Case; the right
to assert interest against the claim as permitted under the applicable agreement; or the right
to assert any of the matters asserted herein by way of defense, counterclaim, offset or
recoupment against any claim asserted by or on behalf of the Debtor or any representative
or affiliate thereof, or successor thereto.
Any claim, right or interest of Ayming against any person or entity, including any co-
obligors, principals, guarantors, or successors-in-interest under the Promissory Note and
related documents, including the Deed of Trust and Personal Guaranty;
Any lien, right, interest, or security interest in any property (including without limitation
in any property of any person or entity other than the Debtor);
Any collateral of any kind for amounts owed to Ayming by the Debtor or any other person
or entity;
Any rights to a trial by jury in any proceeding as to any matters so triable, whether or not
the same are designated legal or equitable rights in any case, controversy or proceeding
related hereto, notwithstanding the designation or not of such matters as core proceedings
pursuant to 11 U.S.C. § 157(b)(2)(H), and whether such jury trial right is pursuant to statute
or the United States Constitution;
Aymings right to have any and all final orders in any and all non-core matters or
proceedings entered only after de novo review by a United States District Court Judge; or
Its right to an election of remedy.
Case 24-11217-BLS Doc 1052-1 Filed 03/31/25 Page 10 of 17
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 1052-1 Filed 03/31/25 Page 11 of 17
Vyaire Medical Inc AYMING USA INC.
Per: _______ ________ Per: _________ ___
Title: _________________________________ Title: _________________________________
Date: _________________________________ Date: _________________________________
AYMING USA BUSINESS PERFORMANCE CONSULTING
Case 24-11217-BLS
Terms and Conditions
Doc 1052-1 Filed 03/31/25 Page 12 of 17
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 1052-1 Filed 03/31/25 Page 13 of 17
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
DocuSign Envelope ID: CD840B2B-1B9B-4CBB-9B18-C84F9O78FBC7
Case 24-11217-BLS Doc 1052-1 Filed 03/31/25 Page 14 of 17
~
. I
aym1ng business
AYM I NG USA I NC .
performar.:e
con.sult,ng 9 Houston,
Westheimer Road, Suite
5718
Texas 77056
1420
Aymingusa.com
Vikram~ November 13, 2023
Chief Financial Officer
Vyaire Medical Inc.
26125 North Riverwoods Blvd.
Mettawa, IL
60045
SUBJECT: Amendment to & Addendum to Agreement, dated January 27 th, 2023.
Amendment to Agreement, dated January 27th , 2023
The Terms and Condit ions for R&D Tax Credit Services, between Vyaire Medical One. and Ayming USA Inc. as part of the
Agreement dated January 27 th, 2023 is amended to include the followi ng:
• Payment of Invoices and Fee Cap. Ayming's invoices are payable within 90 days of receipt. The invoices will be broken
into two portions of the total fee. Aymi ng will issue an invoice when the credit ca lculations are delivered equal to 75% of
the fee based on the Net Credits identified and delivered to the Company. Ayming w i ll issue another invoice upon
completion of the Study for any remaining balance.
No other Terms and Conditions from the Agreement sha ll be amended.
Addendum to Agreement, dated January 27 th, 2023
In addition, the following SOW and the attached Terms & Conditions for Section 174 R&D Tax Deduction & Amortization
Analysis w ill be added as part of the Agreement dated January 27 th, 2023:
SECTION 1 74 R&D TAX DEDUCTION & AMORTIZATION ANALYSIS
AYM IN G'S RESPONSI B ILITI ES
• Analysis and Segregation of Expenses
Ayming will gather information to gain an understanding of Company's business activities and practices including project
information, potential research activities, documentation processes, and accounting. With this information, Ayming will perform
an analysis to calculate the value of research expenses in accordance with I.R.C. Section 174. Each company has unique policies
and procedures so t he processes and deadlines for this analysis and calculation will be tailored to your company.
Through an interview process and in coordination with documentation analysis, Ayming will determine the involvement and
contribution of t he eligible employees and/ or contractors towards the research activities. Aym ing will analyze supply and other
expenses (if any) to segregate and calculate research expenses. Technical and financial documentation will be collected to
support the allocation of research and non-research expenses. Finally, schedules demonstrating the analysis will be submitted
to Company and/or your CPA.
• Reporting. Roadmap
Aym ing 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 Services.
COMPANY'S RESPONSIBILIT I ES
• Company agrees and recognizes that t ime is of the essence regarding properly quantifying, calculating, and t imely filing tax forms
to comply with section 174 filing requ irements. To this end, Company agrees to use commercially reasonable efforts to timely
provide Aym ing with adequate and necessary data. information, financial reports, and access to its employees to comply with
project and statutory deadlines.
REMUN ER ATION and TERM
• The fee for our Services will be Success Based at 10% of the fee associated with the R&D analysis beginning with tax year ending in
September 2023. Fees shall be billed in accordance with the Terms and Conditions attached hereto.
All other terms of the Agreement shall rema in the same.
DocuSign Envelope ID: CD840B2B-1B9B-4CBB-9B18-C84F9O78FBC7
Case 24-11217-BLS Doc 1052-1 Filed 03/31/25 Page 15 of 17
Vyaire Medica l, Inc . AYM IN G USA I NC .
("": OocuSigned by:
Per: Per: - - - - --LJ
- t_;,_
k1a-: - s-~o.
-s_/ R_1J_~_
1}-.~-~-
Global Tax
Title: _ _ _ _ _ _ _ _ _ _ _ __
USA Country Mng Director
Title: _ _ _ _ _ _ _ _ _ _ _ __
Date: 20 November 2023 20-
Date: _ _ _ _ _ _ 11-
__ 2023
_ _ _ _ __
DocuSign Envelope ID: CD840B2B-1B9B-4CBB-9B18-C84F9D78FBC7
Case 24-11217-BLS Doc 1052-1 Filed 03/31/25
T erm s and Co nd it io ns for Sect ion 174 R& D Tax Dedu ct ion & Am or t izat ion
Page 16 of 17
Analysis
A. N sc u , P o e y a C f den o C iden o ion
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.
R cpe D clo
in strict confidence and will use all reasonable measures to protect the Confidential Information from unauthorized use, access, disclosure,
and duplication.
party other than
as n ential
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.
, mandataries,
R es t ves
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 Re
B. P ym n of vo ce d Cap 90 days of receipt. An invoice for the total amount of the
fee will be issued upon delivery of credit calculations. 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. I es ov a co n s ccr s a
2% a m ar n 30 day ol w ep y ue. eC m y l o he e yp o p ov , Ay
S
so e disc e ion Beginning with work completed after one year from the contract date, hourly rates will be updated at the time of the issuance
of the invoice by the rate of inflation for the prior twelve-month period as determined by the United States Department of Labor.
C. em Ex eP w A o y. Company understands that Ayming may require Company to execute Form 2848,
Power of Attorney, so that Ayming may answer questions and queries presented to Company by the Service as necessary with regard to
services provided.
D. . Upon the end of the initial term expressed in the Agreement, this Agreement shall automatically renew annually, unless
question.
E. L i a o o D a es Exc s exp ess y s o eA em , e ther ar y sha ass me nor spons e to e c
her or y c a m , a i s, o x s s at o hsA m n a ae i xcess f p o Ayming by
Com y n even a Aym o i e o ble o c e c al, i i e t, c de t , u t ve exem lary o e
r ages e a ng sA en s im a iab ty r v s s al ap ly t e st extent o aw, w e nc a ,
,o o e w e
F. d es a d a Use
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. xpenses. Company shall reimburse Ayming for all out-of-pocket expenses including, but not limited to, reasonable travel
exceed $1,500 without
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. B sed o Cu en ax L ws 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
eration 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. Doc m R e Company must maintain all records substantiating their tax deduction and amortization for at least six
years from the period the deductions 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 these Services. 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 these Services Ayming may charge Company overtime rates at 125% of the respective hourly rate.
AYMING USA BUSINESS PERFORMANCE CONSULTING
DocuSign Envelope ID: CD840B2B-1B9B-4CBB-9B18-C84F9O78FBC7
Case 24-11217-BLS Doc 1052-1 Filed 03/31/25 Page 17 of 17
AYMING BANKING DETAILS
•
ABA Routing
iumber:
ie'
Swift Code:
Account Number:
• Notifications must be sent to accountsreoelvable@aymlngusa.com
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