In the United States Bankruptcy Court for the Northern District of Texas Dallas Division

Case 20-31840-sgj11 Doc 104 Filed 07/17/20 Entered 07/17/20 21:33:28 Page 1 of 15

Andrew B. Zollinger, State Bar No. 24063944 Thomas R. Califano (admitted pro hac vice) David E. Avraham, State Bar No. 24117868 DLA Piper LLP (US) DLA Piper LLP (US) 1251 Avenue of the Americas 1900 North Pearl Street, Suite 2200 New York, New York 10020-1104 Dallas, Texas 75201 Tel: (212) 335-4500 Tel: (214) 743-4500 Fax: (212) 335-4501 Fax: (214) 743-4545 E-mail: [email protected] E-mail: [email protected] [email protected] Rachel Nanes (admitted pro hac vice) DLA Piper LLP (US) Proposed Counsel for the Debtors 200 South Biscayne Boulevard, Suite 2500 Miami, Florida 33131 Tel: (305) 423-8563 Fax: (305) 675-8206 E-mail: [email protected]

IN THE UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

In re: § Chapter 11 § TRIVASCULAR SALES LLC, et al.,1 § Case No. 20-31840 (SGJ) § Debtors. § (Jointly Administered)

DEBTORS’ APPLICATION FOR ENTRY OF AN ORDER (I) AUTHORIZING THE RETENTION AND EMPLOYMENT OF JEFFERIES LLC AS INVESTMENT BANKER FOR THE DEBTORS PURSUANT TO 11 U.S.C. §§ 327(a) AND 328(a), EFFECTIVE AS OF THE PETITION DATE AND (II) WAIVING CERTAIN TIME-KEEPING REQUIREMENTS

A HEARING WILL BE CONDUCTED ON THIS MATTER ON AUGUST 12, 2020 AT 1:30 P.M. (CDT) AT THE UNITED STATES BANKRUPTCY COURT, EARLE CABELL FEDERAL BUILDING, 1100 COMMERCE ST., 14TH FLOOR, COURTROOM #1, DALLAS, TX 75242-1496.

1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification number, are: TriVascular Sales LLC (9179), Endologix, Inc. (8265), CVD/RMS Acquisition Corp. (8438), TriVascular Technologies, Inc. (7313), RMS/Endologix Sideways Merger Corp. (2974), Nellix, Inc. (8416), TriVascular, Inc. (2620), and Endologix Canada, LLC (2872). The corporate headquarters and the mailing address for the Debtors listed above is 2 Musick, Irvine, California 92618. Case 20-31840-sgj11 Doc 104 Filed 07/17/20 Entered 07/17/20 21:33:28 Page 2 of 15

The above-captioned debtors (collectively, the “Debtors”), by and through their proposed

counsel, DLA Piper LLP (US), hereby submit this application (the “Application”) for entry of an

order, substantially in the form attached hereto as Exhibit A (the “Retention Order”),

(i) authorizing the Debtors to retain and employ Jefferies LLC (“Jefferies”) as their investment

banker, effective as of the Petition Date, pursuant to the terms and subject to the conditions of that

certain engagement letter between Jefferies and the Debtors dated as of March 4, 2020, a copy of

which is attached hereto as Exhibit B (the “Engagement Letter”)2 and (ii) waiving and modifying

certain of the time-keeping requirements of Rule 2016(a) of the Federal Rules of Bankruptcy

Procedure (the “Bankruptcy Rules”), any guidelines (the “Trustee Guidelines”) of the Office of

the United States Trustee for the Northern District of Texas (the “U.S. Trustee”) and any other

orders regarding submission and approval of fee applications. The Engagement Letter describes:

(a) the various services that the Debtors seek Jefferies to perform on their behalf during these

chapter 11 cases; and (b) the terms and conditions of Jefferies’ proposed engagement by the

Debtors. In support of this Application, the Debtors respectfully submit the Declaration of

Richard Morgner in Support of Debtors’ Application For Entry of an Order (I) Authorizing the

Retention and Employment of Jefferies LLC as Investment Banker for the Debtors Pursuant to 11

U.S.C. §§ 327(A) and 328(A), Effective as of the Petition Date and (II) Waiving Certain Time-

Keeping Requirements (the “Morgner Declaration”), attached hereto as Exhibit C, and further

respectfully state as follows:

2 Capitalized terms used but not otherwise defined herein shall have the meanings given to them in the Engagement Letter.

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JURISDICTION AND VENUE

1. The United States Bankruptcy Court for the Northern District of Texas (the

“Court”) has jurisdiction over these cases, the Debtors, property of the Debtors’ estates and this

matter under 28 U.S.C. §§ 157 and 1334. The District Court’s jurisdiction has been referred to

this Court pursuant to 28 U.S.C. § 157 and the District Court’s Miscellaneous Order No. 33, Order

of Reference of Bankruptcy Cases and Proceedings Nunc Pro Tunc dated August 3, 1984. This is

a core proceeding under 28 U.S.C. § 157(b).

2. Venue of these cases and this Application in this District is proper under 28 U.S.C.

§§ 1408 and 1409.

3. The bases for the relief requested herein are sections 327(a) and 328(a) of title 11

of the United States Code (the “Bankruptcy Code”), Bankruptcy Rules 2014(a) and 2016, and Rule

2014-1 of the Local Bankruptcy Rules of the United States Bankruptcy Court for the Northern

District of Texas (the “Local Rules”).

BACKGROUND

4. On July 5, 2020 (the “Petition Date”), each of the Debtors filed with this Court a

voluntary petition for relief under the Bankruptcy Code.

5. The Debtors continue to operate their businesses and manage their properties as

debtors in possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code. As of the

date hereof, no trustee or examiner has been appointed in the Debtors’ chapter 11 cases.

6. On July 16, 2020, the U.S. Trustee appointed the Official Committee of Unsecured

Creditors (the “Committee”) [Docket No. 95].

7. Additional factual background regarding the Debtors, including their business

operations, capital and debt structures, and the events leading to the filing of these chapter 11 cases,

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is set forth in the Declaration of John Onopchenko, the Debtors’ Chief Executive Officer, in

Support of Chapter 11 Petitions and First Day Pleadings [Docket No. 18].

JEFFERIES’ QUALIFICATIONS AND THE NEED FOR JEFFERIES’ SERVICES

8. The Debtors submit this Application because of their need to retain a qualified

investment banker to assist them in the critical tasks associated with guiding the Debtors through

these chapter 11 cases. The Debtors believe that their retention of an investment banker is

necessary and appropriate to enable them to evaluate the financial and economic issues raised by

the Debtors’ chapter 11 proceedings, successfully consummate a restructuring, and to effectively

carry out their duties as debtors in possession.

9. The Debtors selected Jefferies as their investment banker in these chapter 11 cases

based upon Jefferies’ extensive experience in matters involving complex financial restructurings

and its excellent reputation for the services that it has rendered in chapter 11 cases on behalf of

debtors and creditor constituencies throughout the United States. In addition, prior to the Petition

Date, Jefferies advised the Debtors regarding out-of-court restructuring transactions consummated

in April 2019 and February 2020, and ultimately advised the Debtors in connection with the

preparation of these chapter 11 cases.3 As a result, Jefferies is intimately familiar with the Debtors’

corporate and capital structure, management, and business operations. Thus, the Debtors believe

that Jefferies is both well qualified and uniquely able to advise the Debtors in these chapter 11

cases.

10. As set forth in the Morgner Declaration, Jefferies is a full-service investment

banking firm, with approximately 3,900 employees in more than 30 offices around the world.

3 Jefferies was previously engaged by the Debtors under agreements dated December 17, 2018 and November 20, 2019.

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Jefferies and its senior professionals have extensive expertise providing investment banking

services to financially distressed companies, creditors, committees, equity holders, asset

purchasers, and other constituencies in reorganization proceedings and complex financial

restructurings, both in and out of court. Jefferies and its professionals are providing or have

provided investment banking, financial advisory, and other services in connection with the

following recent cases, among others: In re Foresight Energy LP, Case No. 20-41308-659 (Bankr.

E.D. Mo. Apr. 7. 2020); In re Melinta Therapeutics, Inc., Case No. 19-12748 (LSS) (Bankr. D.

Del. Feb. 7, 2020); In re EP Energy Corp., Case No. 19-35654 (MI) (Bankr. S.D. Tex. Jan. 8,

2020); In re Dura Automotive Systems, LLC, Case No. 19-12378 (KBO) (Bankr. D. Del. Dec. 3,

2019); In re Synergy Pharmaceuticals Inc., Case No. 18-14010 (JLG) (Bankr. S.D.N.Y. Mar. 7,

2019); In re Westmoreland Coal Co., Case No. 18-35672 (DRJ) (Bankr. S.D. Tex. Dec. 6, 2018);

In re Mission Coal Co., LLC, Case No. 18-04177-TOM11 (Bankr. N.D. Ala. Nov. 30, 2018); In

re Claire’s Stores, Inc. Case No. 18-10584 (MFW) (Bankr. D. Del. Aug. 3, 2018); In re Gibson

Brands, Inc., Case No. 18-11025 (CSS) (Bankr. D. Del. June 6, 2018); In re iHeartMedia, Case

No. 18-31274 (MI) (Bankr. S.D. Tex. May 30, 2018); In re Armstrong Energy, Inc., Case No. 17-

47541-659 (Bankr. E.D. Mo. Jan. 16, 2018); In re Real Industry, Inc., Case No. 17-12464 (KJC)

(Bankr. D. Del. Dec. 19, 2017); In re Goodman Networks, Inc., Case No. 17-31575 (MI) (Bankr.

S.D. Tex. Apr. 20, 2017); In re BCBG Max Azria Global Holdings, LLC, Case No. 17-10466

(SCC) (Bankr. S.D.N.Y. Mar. 29, 2017); In re Peabody Energy Corp., Case No. 16-42529 (BSS)

(Bankr. E.D. Mo. June 17, 2016); In re Aspect Software Parent, Inc., No. 16-10597 (MFW)

(Bankr. D. Del. Apr. 21, 2016); In re Sundevil Power Holdings, LLC, No. 16-10369 (KJC) (Bankr.

D. Del. Apr. 7, 2016); In re Arch Coal, Inc., Case No. 16-40120 (TFE) (Bankr. E.D. Mo. Mar. 21,

2016); In re Alpha Natural Res., Inc., No. 15-33896 (KRH) (Bankr. E.D. Va. Oct. 16, 2015); In re

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Patriot Coal Corp., No. 15-32450 (KLP) (Bankr. E.D. Va. July 9, 2015); In re Reddy Ice Holdings,

Inc. and Reddy Ice Corp., Case Nos. 12-32349 and 12-32350 (SGJ) (Bankr. N.D. Tex. May 31,

2012).

SCOPE OF SERVICES

11. Subject to the Court’s approval, the Debtors anticipate that Jefferies will perform

the following investment banking services, among others, pursuant to the Engagement Letter, as

mutually agreed upon by Jefferies and the Debtors and as appropriate:4

(a) providing advice and assistance to the Debtors in connection with analyzing, structuring, negotiating and effecting (including providing valuation analyses as appropriate) a Restructuring;

(b) becoming familiar with, to the extent Jefferies deems appropriate, and analyze the business, operations, assets, financial condition, and prospects of the Debtors;

(d) assisting and advising the Debtors in developing a general strategy for accomplishing a Restructuring;

(e) assisting and advising the Company in implementing a Restructuring;

(f) assisting and advising the Company in evaluating and analyzing a Restructuring, including the value of the securities or debt instruments, if any, that may be issued in any such Restructuring; and

(g) rendering such other financial advisory services as may from time to time be agreed upon by the Company.

12. The Debtors do not believe that the services to be rendered by Jefferies will be

duplicative of the services performed by any other professional, and Jefferies will work together

with the other professionals retained by the Debtors to minimize and avoid duplication of services.

4 To the extent there is any inconsistency between this summary of the services set forth in the Engagement Letter and the terms of the Engagement Letter, the terms of the Engagement Letter shall control.

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The Debtors believe that the services provided by Jefferies are necessary to enable the Debtors to

maximize the value of their estates and successfully implement their restructuring.

PROFESSIONAL COMPENSATION

13. As set forth more fully in the Engagement Letter, Jefferies and the Debtors have

agreed on the following terms of compensation and expense reimbursement (the “Fee and Expense

Structure”):5

(a) Monthly Fee. A monthly fee (the “Monthly Fee”) equal to $125,000 payable in advance on the fifteenth day of each month. An amount equal to 100.0% of all Monthly Fees actually paid to and retained by Jefferies after four full Monthly Fees have been paid under the Engagement Letter will be credited (without duplication) once against any Restructuring Fee or M&A Transaction Fee (as defined below) due to Jefferies. Additionally, 100.0% of all Monthly Fees actually paid to Jefferies shall be credited against any Financing Fee due and payable to Jefferies.

(b) Restructuring Fee. A fee in an amount equal to 1.5% of aggregate liabilities restructured, subject to a minimum fee of $3,000,000 (subject to any crediting of the Monthly Fees described above), due and payable upon consummation of a Restructuring, including, without limitation, upon the effective date of a confirmed plan of reorganization pursuant to chapter 11 of the Bankruptcy Code, whether or not through the use of cramdown procedures (the “Restructuring Fee”).

(c) M&A Transaction Fee. Promptly upon closing of an M&A Transaction, a fee (the “M&A Transaction Fee”) equal to 1.5% of the Transaction Value, subject to a minimum fee of $3,000,000 (subject to any crediting of the Monthly Fees described above).

(d) Debt Financing Fee. Promptly upon the closing of each Financing involving Debt Securities, a fee (the “Debt Financing Fee”) equal to 4.0% of (i) the aggregate principal amount of such Debt Securities if the Debt Securities are issued below par or (ii) the gross proceeds from the Transaction if the Debt Securities are issued at or above par.

(e) Equity Financing Fee. Promptly upon the closing of each Financing involving Equity Securities, a fee (the “Equity Financing Fee”) in an amount equal to

5 To the extent there is any inconsistency between the summary of the Fee and Expense Structure set forth in this Application and the Fee and Expense Structure as set forth in the Engagement Letter, the terms of the Engagement Letter shall control.

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5.0% of the aggregate gross proceeds received or to be received from the sale of Equity Securities, including, without limitation, aggregate amounts committed by investors to purchase Equity Securities.

(f) Bank Debt Fee. Upon execution by the Debtors of a definitive credit agreement with respect to any Bank Debt, a fee (the “Bank Debt Fee” and, together with any Debt Financing Fee or Equity Financing Fee, the “Financing Fee”) equal to 2.5% of the maximum principal amount available under the Bank Debt (it being understood that the Bank Debt Fee shall be in addition to fees and expenses paid to lenders or purchasers of the Bank Debt).

(g) Expenses. In addition to any fees that may be paid to Jefferies under the Engagement Letter, the Debtors shall reimburse Jefferies for out-of-pocket expenses incurred in connection with its engagement by the Debtors (including reasonable and documented fees and expenses of counsel, and the reasonable and documented fees and expenses of any other independent experts retained by Jefferies). Jefferies will maintain records in support of any actual and necessary costs and expenses incurred in connection with the rendering of its services in these cases.

In the event that a Transaction falls within the definition of both an M&A Transaction and a

Restructuring, Jefferies shall be paid the greater of the M&A Transaction Fee and the Restructuring

Fee.

14. During the pendency of these chapter 11 cases, Jefferies shall apply to the Court

for the allowance of compensation for professional services rendered and reimbursement of

expenses in accordance with the applicable provisions of the Bankruptcy Code, the Bankruptcy

Rules, the Local Rules, and any other applicable procedures and orders of the Court, and consistent

with the proposed compensation arrangement set forth in the Engagement Letter.

15. The Debtors believe that the Fee and Expense Structure set forth in the Engagement

Letter is reasonable. The Fee and Expense Structure appropriately reflects the nature of the

services to be provided by Jefferies and the fee structures typically utilized by leading investment

banking firms of similar stature to Jefferies for comparable engagements, both in and out of court.

The Fee and Expense structure is consistent with Jefferies’ normal and customary billing practices

for cases of this size and complexity that require the level of scope and services outlined herein.

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Moreover, the Fee and Expense Structure is reasonable in light of: (a) industry practice; (b) market

rates charged for comparable services both in and out of the chapter 11 context; (c) Jefferies’

substantial experience with respect to investment banking services; and (d) the nature and scope

of work to be performed by Jefferies in these cases. In particular, the Debtors believe that the Fee

and Expense Structure creates a proper balance between fixed monthly fees and contingency fees.

Similar fixed and contingency fee arrangements have been approved and implemented in other

recent large chapter 11 cases. See, e.g., In re Dura Automotive Systems, LLC, Case No. 19-12378

(KBO) (Bankr. D. Del. Dec. 3, 2019) (authorizing Jefferies’ retention as investment banker); In re

Westmoreland Coal Co., Case No. 18-35672 (DRJ) (Bankr. S.D. Tex. Dec. 6, 2018) (same); In re

Mission Coal Co., LLC, Case No. 18-04177-TOM11 (Bankr. N.D. Ala. Nov. 30, 2018) (same); In

re Claire’s Stores, Inc. Case No. 18-10584 (MFW) (Bankr. D. Del. Aug. 3, 2018) (same); In re

Gibson Brands, Inc., Case No. 18-11025 (CSS) (Bankr. D. Del. June 6, 2018).

16. Consistent with its ordinary practice and the practice of investment bankers in other

chapter 11 cases whose fee arrangements are not hours-based, Jefferies does not maintain

contemporaneous time records or provide or conform to a schedule of hourly rates for its

professionals. Given the foregoing and that Jefferies’ compensation is based on fixed fees, the

Debtors request that, notwithstanding anything to the contrary in the Bankruptcy Code, the

Bankruptcy Rules, the Local Rules, any order of this Court, or any other guidelines regarding the

submission and approval of fee applications, Jefferies’ professionals be excused from maintaining

time records as set forth in Bankruptcy Rule 2016(a) and the Trustee Guidelines in connection

with the services being rendered pursuant to the Engagement Letter. Further, because the Debtors

are seeking to retain Jefferies under section 328(a) of the Bankruptcy Code, the Debtors believe

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that Jefferies’ compensation should not be subject to any additional standard of review under

section 330 of the Bankruptcy Code.

17. Jefferies will nonetheless maintain reasonably detailed summary time records in

one-half hour increments, which records shall indicate the total hours incurred by each professional

for each day and provide a brief description of the nature of the work performed. Courts in other

large chapter 11 cases have excused flat-fee professionals from time-keeping requirements under

similar circumstances. See, e.g., In re Dura Automotive Systems, LLC, Case No. 19-12378 (KBO)

(Bankr. D. Del. Dec. 3, 2019) (requiring investment bank only to keep reasonably detailed

summary time records in one-half hour increments while indicating the total hours incurred by

each professional for each day and briefly describing the nature of the work performed); In re

Westmoreland Coal Co., Case No. 18-35672 (DRJ) (Bankr. S.D. Tex. Dec. 6, 2018) (same); In re

iHeartMedia, Inc., Case No. 18-31274 (MI) (Bankr. S.D. Tex. May 30, 2018) (same); In re

Claire’s Stores, Inc. Case No. 18-10584 (MFW) (Bankr. D. Del. Aug. 3, 2018) (same); In re

Gibson Brands, Inc., Case No. 18-11025 (CSS) (Bankr. D. Del. June 6, 2018) (same).

INDEMNIFICATION OF JEFFERIES

18. Subject to the approval of the Court and as part of the overall compensation payable

to Jefferies under the terms of the Engagement Letter, the Engagement Letter provides for certain

indemnification obligations to Jefferies and its affiliates, and each of their respective officers,

directors, managers, members, partners, employees, and agents, and any other controlling persons,

to the fullest extent lawful, from and against any claims, liabilities, losses, damages, costs, and

expenses, as incurred, related to or arising out of or in connection with Jefferies’ services under

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the Engagement Letter.6 The terms of the Engagement Letter, including the indemnification

provisions, were fully negotiated between the Debtors and Jefferies. The Debtors respectfully

submit that the terms of the indemnification provisions set forth in the Engagement Letter reflect

the qualifications and limits on such terms that are customary for investment bankers such as

Jefferies in chapter 11 cases. See, e.g., In re Dura Automotive Systems, LLC, Case No. 19-12378

(KBO) (Bankr. D. Del. Dec. 3, 2019) (approving similar indemnification provisions); In re

Westmoreland Coal Co., Case No. 18-35672 (DRJ) (Bankr. S.D. Tex. Dec. 6, 2018) (same); In re

Mission Coal Co., LLC, Case No. 18-04177-TOM11 (Bankr. N.D. Ala. Nov. 30, 2018) (same); In

re Claire’s Stores, Inc. Case No. 18-10584 (MFW) (Bankr. D. Del. Aug. 3, 2018) (same); In re

Gibson Brands, Inc., Case No. 18-11025 (CSS) (Bankr. D. Del. June 6, 2018) (same).7

JEFFERIES’ DISINTERESTEDNESS

19. Jefferies has informed the Debtors that as of the date hereof, except as set forth in

the Morgner Declaration: (a) Jefferies has no connection with the Debtors, their creditors, equity

security holders, or other parties in interest in these chapter 11 cases; (b) Jefferies does not have

or represent any entity having an interest adverse to the interests of the Debtors’ estates or of any

class of creditors or equity security holders; and (c) Jefferies (i) is not a creditor, equity security

holder, or an insider of the Debtors and (ii) is not or was not, within two years before the Petition

Date, a director, officer, or employee of any of the Debtors. In addition, none of the Jefferies

professionals expected to assist the Debtors in these chapter 11 cases are related or connected to

6 To the extent there is any inconsistency between the summary of the indemnification provisions set forth in this Application and the indemnifications set forth in Schedule A to the Engagement Letter, the terms of the Engagement Letter shall control.

7 Because of the voluminous nature of the orders cited herein, they are not attached to this Application. Copies of these orders, however, are available on request.

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any United States Bankruptcy Judge for the Northern District of Texas, the U.S. Trustee, or any

person employed by the U.S. Trustee.

20. During the 90-day period prior to the commencement of these chapter 11 cases,

Jefferies was paid in the ordinary course certain Monthly Fees and expense reimbursements.

Specifically, (i) on May 14, 2020 Jefferies was paid $100,000 on account of its April 2020 Monthly

Fee, (ii) on May 27, 2020 Jefferies was paid $100,000 on account of its May 2020 Monthly Fee,

and (iii) on June 19, 2020 Jefferies was paid $100,000 on account of its June 2020 Monthly Fee

and $25,000 on account of an expense advance. Jefferies will apply any expense advance received

first to expenses incurred but not reimbursed prepetition, and second to any expenses incurred after

the Petition Date.

21. The Debtors have been advised that Jefferies has agreed not to share with any other

person or firm the compensation to be paid for professional services rendered in connection with

these chapter 11 cases in accordance with section 504(a) of the Bankruptcy Code.

22. Based on the foregoing, the Debtors believe that Jefferies is a “disinterested person”

within the meaning of Bankruptcy Code section 101(14) and there is not conflict of interest with

respect to Jefferies’ services on behalf of the Debtors’ estates and/or any other client of Jefferies.

Jefferies has informed the Debtors that Jefferies will disclose any pertinent relationships not

disclosed in the Morgner Declaration that come to Jefferies’ attention by way of supplemental

declaration.

RELIEF REQUESTED

23. By this Application, pursuant to sections 327 and 328(a) of the Bankruptcy Code,

the Debtors seek entry of an order (i) authorizing the Debtors to retain and employ Jefferies as

their investment banker, effective as of the Petition Date, pursuant to the terms and subject to the

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conditions of the Engagement Letter and (ii) waiving and modifying certain of the time-keeping

requirements of Bankruptcy Rule 2016(a), any Trustee Guidelines, and any other orders regarding

submission and approval of fee applications.

BASIS FOR RELIEF

24. Section 327(a) of the Bankruptcy Code provides, in relevant part, that the Debtors,

with the Bankruptcy Court’s approval, “may employ one or more attorneys, accountants . . . or

other professional person.” 11 U.S.C. § 327(a). Section 328(a) of the Bankruptcy Code provides,

in relevant part, that the Debtors, with the Bankruptcy Court’s approval, “may employ or authorize

the employment of a professional person under section . . . 327 . . . on any reasonable terms and

conditions of employment, including on a retainer, on an hourly basis, on a fixed or percentage fee

basis, or on a contingent fee basis.” 11 U.S.C. § 328(a).

25. Given the numerous issues that Jefferies may be required to address in performing

its services for the Debtors pursuant to the Engagement Letter, Jefferies’ commitment to the

variable time requirements and effort necessary to address all such issues as they arise, and the

market prices for Jefferies’ services for engagements of this nature, the Debtors submit that the

terms and conditions of the Engagement Letter are fair, reasonable, and market-based under the

standards set forth in section 328(a) of the Bankruptcy Code. The Debtors also believe that the

Fee and Expense Structure appropriately reflects (a) the nature and scope of Jefferies’ services,

(b) Jefferies’ substantial experience with respect to investment banking services and (c) the fee

structures typically utilized by Jefferies and other investment banks, which do not bill their clients

on an hourly basis, in bankruptcy or otherwise.

26. As set forth above, and notwithstanding approval of the Engagement Letter under

section 328(a) of the Bankruptcy Code, Jefferies intends to apply for compensation for

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professional services rendered and reimbursement of expenses incurred in connection with these

chapter 11 cases, subject to the Court’s approval and in compliance with the applicable provisions

of the Bankruptcy Code, the Bankruptcy Rules, the Local Rules, and any other applicable

procedures and orders of this Court, with certain limited modifications as set forth herein.

27. In light of the foregoing, the Debtors submit that the retention of Jefferies is in the

best interest of the estates, their creditors, and all parties in interest in these chapter 11 cases.

Jefferies has extensive experience in matters involving complex financial restructurings and an

excellent reputation for the services that it has rendered in chapter 11 cases on behalf of debtors

and creditor constituencies throughout the United States. The Debtors therefore submit that they

have satisfied the requirements of the Bankruptcy Code and the Bankruptcy Rules to support entry

of an order authorizing the Debtors to retain and employ Jefferies in these chapter 11 cases on the

terms described herein and in the Engagement Letter.

NOTICE

28. Notice of this Application shall be provided to: (a) the U.S. Trustee; (b) the Offices

of the Attorney General for each of the states in which the Debtors are incorporated; (c) the United

States Attorney’s Office for the Northern District of Texas; (d) the twenty largest unsecured

creditors for each Debtor; (e) counsel to the Committee; (f) counsel to the DIP Secured Parties,

the Prepetition ABL Agent and the Prepetition Term Loan Agent; (g) Wilmington Trust, N.A., as

collateral agent with respect to the 5.00% Voluntary Convertible Senior Secured Notes due 2024;

(h) the Internal Revenue Service; (i) the U.S. Securities and Exchange Commission; (j) the U.S.

Food and Drug Administration; (k) any party that has requested notice pursuant to Bankruptcy

Rule 2002; and (l) any other party in interest entitled to notice of this Application. The Debtors

submit that, in light of the nature of the relief requested, no other or further notice need be given.

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WHEREFORE, the Debtors respectfully request that this Court (i) enter the Retention

Order, substantially in the form attached hereto as Exhibit A, granting the relief requested in this

Application and (ii) grant such other and further relief as the Court may deem just and proper.

Dated: July 17, 2020 Respectfully submitted, Dallas, Texas DLA PIPER LLP (US)

By: /s/ Andrew B. Zollinger Andrew B. Zollinger, State Bar No. 24063944 David E. Avraham, State Bar No. 24117868 DLA Piper LLP (US) 1900 North Pearl Street, Suite 2200 Dallas, Texas 75201 Tel: (214) 743-4500 Fax: (214) 743-4545 E-mail: [email protected] [email protected]

- and -

Thomas R. Califano (admitted pro hac vice) DLA Piper LLP (US) 1251 Avenue of the Americas New York, New York 10020-1104 Tel: (212) 335-4500 Fax: (212) 335-4501 E-mail: [email protected]

- and -

Rachel Nanes (admitted pro hac vice) DLA Piper LLP (US) 200 South Biscayne Boulevard, Suite 2500 Miami, Florida 33131 Tel: (305) 423-8563 Fax: (305) 675-8206 E-mail: [email protected]

Proposed Counsel for the Debtors

15 Case 20-31840-sgj11 Doc 104-1 Filed 07/17/20 Entered 07/17/20 21:33:28 Page 1 of 8

Exhibit A

Proposed Order Case 20-31840-sgj11 Doc 104-1 Filed 07/17/20 Entered 07/17/20 21:33:28 Page 2 of 8

IN THE UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

In re: § Chapter 11 § TRIVASCULAR SALES LLC, et al.,1 § Case No. 20-31840 (SGJ) § Debtors. § (Jointly Administered) § § Re: Docket No. [●]

ORDER (I) AUTHORIZING THE RETENTION AND EMPLOYMENT OF JEFFERIES LLC AS INVESTMENT BANKER FOR THE DEBTORS PURSUANT TO 11 U.S.C. §§ 327(a) AND 328(a), EFFECTIVE AS OF THE PETITION DATE AND (II) WAIVING CERTAIN TIME-KEEPING REQUIREMENTS

This matter coming before the Court on the application (the “Application”)2 filed by the

above-captioned debtors (collectively, the “Debtors”) for entry of an order (this “Order”),

(i) authorizing the Debtors to retain and employ Jefferies LLC (“Jefferies”) as their investment

2 Capitalized terms used in this Order and not immediately defined have the meanings given to such terms in the Application. Case 20-31840-sgj11 Doc 104-1 Filed 07/17/20 Entered 07/17/20 21:33:28 Page 3 of 8

banker effective as of the Petition Date, pursuant to the terms and subject to the conditions of the

Engagement Letter and (ii) waiving and modifying certain of the time-keeping requirements of

Bankruptcy Rule 2016(a), the Trustee Guidelines, and any other guidelines regarding submission

and approval of fee applications, all as more fully set forth in the Application; and upon

consideration of the Morgner Declaration; and this Court having jurisdiction to consider the

Application and the relief requested therein under 28 U.S.C. §§ 157 and 1334; and this Court

having found that this is a core proceeding under 28 U.S.C. § 157(b)(2); and this Court having

found that venue of this proceeding and the Application in this District is proper under 28 U.S.C.

§§ 1408 and 1409; and this Court having found that the Debtors’ notice of the Application and

opportunity for a hearing were adequate and appropriate under the circumstances and no other

notice need be provided; and this Court having reviewed the Application and this Court having

determined that the legal and factual bases set forth in the Application and the Morgner Declaration

establish just cause for the relief granted herein; and this Court having found and determined that

the relief sought in the Application is in the best interests of the Debtors’ estates, their creditors,

and other parties in interest; and upon all of the proceedings had before this Court; and after due

deliberation and sufficient cause appearing therefor,

IT IS HEREBY ORDERED THAT:

1. The Application is GRANTED as set forth herein.

2. The Debtors are authorized to retain and employ Jefferies as their investment

banker in these chapter 11 cases, pursuant to the terms and subject to the conditions set forth in

the Engagement Letter attached to the Application as Exhibit B, effective as of the Petition Date,

as modified by this Order.

2 Case 20-31840-sgj11 Doc 104-1 Filed 07/17/20 Entered 07/17/20 21:33:28 Page 4 of 8

3. Except to the extent set forth herein, the Engagement Letter (together with all

annexes thereto), including without limitation the Fee and Expense Structure, are approved

pursuant to sections 327(a) and 328(a) of the Bankruptcy Code, and the Debtors are authorized

and directed to perform their payment, reimbursement, contribution, and indemnification

obligations and their non-monetary obligations in accordance with the terms and conditions, and

at the times specified, in the Engagement Letter. Subject to Paragraph 4 of this Order, all

compensation and reimbursement of expenses payable under the Engagement Letter shall be

subject to review only pursuant to the standards set forth in section 328(a) of the Bankruptcy Code

and shall not be subject to any other standard of review including, but not limited to, that set forth

in section 330 of the Bankruptcy Code.

4. Jefferies shall file applications for allowance of compensation and reimbursement

of expenses pursuant to and in accordance with the procedures set forth in sections 330 and 331 of

the Bankruptcy Code, such Bankruptcy Rules or Local Rules as may then be applicable, and any

other applicable orders and procedures of this Court; provided, however, that Jefferies shall be

compensated and reimbursed pursuant to section 328(a) of the Bankruptcy Code and that Jefferies’

fees and expenses shall not be evaluated under the standard set forth in section 330 of the

Bankruptcy Code.

5. Notwithstanding any provisions to the contrary in this Order or the Application, the

U.S. Trustee shall retain all rights and be entitled to object to Jefferies’ request(s) for fees and

reimbursement of expenses, including but not limited to those set forth in interim and final fee

applications, under the standards provided in sections 330 and 331 of the Bankruptcy Code.

Accordingly, nothing in this Order or the record shall constitute a finding of fact or conclusion of

law binding on the U.S. Trustee, on appeal or otherwise, with respect to the reasonableness of

3 Case 20-31840-sgj11 Doc 104-1 Filed 07/17/20 Entered 07/17/20 21:33:28 Page 5 of 8

Jefferies’ fees and reimbursement requests.

6. Notwithstanding anything to the contrary in the Application or the Engagement

Letter, Jefferies shall comply with all requirements of Bankruptcy Rule 2016(a), and the Local

Rules, except that Jefferies and its professionals shall be permitted to maintain time records of

services rendered for the Debtors in half-hour increments.

7. Notwithstanding anything to the contrary in the Application or any of its

attachments, no amounts shall be paid to Jefferies absent an order of this Court approving a fee

application filed on notice to parties in interest in these chapter 11 cases under the procedures set

forth in any order establishing procedures for compensation and reimbursement of expenses of

professionals (the “Compensation Order”), except that the Debtors are authorized to pay the

Monthly Fee to Jefferies each month when required under the Engagement Letter without a prior

fee application.

8. In the event that, during the pendency of these chapter 11 cases, Jefferies requests

reimbursement for any attorneys’ fees and/or expenses, the invoices and supporting time records

from such attorneys shall be included in Jefferies’ fee applications, and such invoices and time

records shall be in compliance with the U.S. Trustee Guidelines and subject to approval of the

Court under the standards of section 330 and 331 of the Bankruptcy Code, without regard to

whether such attorney has been retained under section 1103 of the Bankruptcy Code and without

regard to whether such attorneys’ services satisfy section 330(a)(3)(C) of the Bankruptcy Code.

Notwithstanding the foregoing, Jefferies shall only be reimbursed for any legal fees incurred in

connection with these chapter 11 cases to the extent permitted under applicable law and the

decisions of this Court.

4 Case 20-31840-sgj11 Doc 104-1 Filed 07/17/20 Entered 07/17/20 21:33:28 Page 6 of 8

9. The indemnification, contribution, and reimbursement provisions included in

Schedule A to the Engagement Letter are approved, subject during the pendency of these

chapter 11 cases to the following modifications:

a. Indemnified Persons (as that term is defined in Schedule A to the Engagement Letter) shall not be entitled to indemnification, contribution, or reimbursement pursuant to the Engagement Letter for claims arising from services other than the services provided under the Engagement Letter, unless such services are approved by this Court;

b. Notwithstanding anything to the contrary in the Engagement Letter, the Debtors shall have no obligation to indemnify any person or entity or provide contribution or reimbursement to any person or entity for any claim or expense that is either (i) judicially determined (the determination having become final) to have arisen from that person’s or entity’s gross negligence, willful misconduct, or bad faith, or (ii) for a contractual dispute in which the Debtors allege breach of the obligations of Jefferies or another Indemnified Person under the Engagement Letter unless this Court determines that indemnification, contribution or reimbursement would be permissible pursuant to In re United Artists Theatre Co., 315 F.3d 217 (3d Cir. 2003), or (iii) settled prior to a judicial determination as to sub- clauses (i) or (ii) above, but determined by this Court, after notice and a hearing, to be a claim or expense for which that person should not receive indemnity, contribution, or reimbursement under the terms of the Engagement Letter as modified by this Order;

c. If, during the pendency of these chapter 11 cases, the indemnification provided in Schedule A to the Engagement Letter is held unenforceable by reason of the exclusions set forth in paragraph (b) above, and Jefferies or another Indemnified Person makes a claim for the payment of any amounts by the Debtors on account of the Debtors’ contribution obligations, then the limitations on Jefferies’ contribution obligations set forth in the second and third sentences of the fifth paragraph of Schedule A shall not apply;3 and

d. If, before the earlier of (i) the entry of an order confirming a chapter 11 plan in these chapter 11 cases (that order having become a final order no longer subject to appeal) and (ii) the entry of an order closing these chapter 11 cases, Jefferies or another Indemnified Person believes that it is entitled to the payment of any amounts by the Debtors on account of the Debtors’ indemnification, contribution or reimbursement obligations under the

3 For the avoidance of doubt, the fifth paragraph of Schedule A to the Engagement Letter is the paragraph that begins, “If, for any reason….”

5 Case 20-31840-sgj11 Doc 104-1 Filed 07/17/20 Entered 07/17/20 21:33:28 Page 7 of 8

Engagement Letter (as modified by this Order), including, without limitation, the advancement of defense costs, Jefferies must file an application before this Court and the Debtors may not pay any such amounts before the entry of an order by this Court approving the payment; provided, however, that for the avoidance of doubt, this subparagraph (d) is intended only to specify the period of time under which this Court shall have jurisdiction over any request for fees and expenses for indemnification, contribution, or reimbursement and not a provision limiting the duration of the Debtors’ obligation to indemnify Jefferies or any other Indemnified Person. All parties in interest, including the U.S. Trustee, shall retain the right to any request for indemnification, contribution, or reimbursement by Jefferies or any other Indemnified Person.

10. Notwithstanding anything to the contrary in the Engagement Letter or the

Application, during the course of these chapter 11 cases, there shall be no interest charges relating

to Jefferies’ fees or expenses.

11. Notwithstanding anything to the contrary in the Application or its attachments,

including paragraph 10(c) of the Engagement Letter, during the course of these chapter 11 cases,

Jefferies shall not act as an underwriter or initial purchaser in connection with any transaction

involving the offer and sale by the Debtors of any securities.

12. To the extent that there may be any inconsistency between the terms of the

Application, the Morgner Declaration, the Engagement Letter, and this Order, the terms of this

Order shall govern.

13. The Debtors are authorized and empowered to take all actions necessary to

effectuate the relief granted in this Order in accordance with the Application.

14. The requirements of Bankruptcy Rule 6004(a) are waived.

15. Notwithstanding the possible applicability of Bankruptcy Rule 6004(h), the terms

and provisions of this Order shall be immediately effective and enforceable upon its entry.

16. The Debtors are hereby authorized to take all actions they deem necessary to

effectuate the relief granted in this Order. 6 Case 20-31840-sgj11 Doc 104-1 Filed 07/17/20 Entered 07/17/20 21:33:28 Page 8 of 8

17. This Court shall retain jurisdiction to hear and determine all matters arising from

or related to the implementation or interpretation of this Order.

###END OF ORDER###

Order submitted by:

DLA PIPER LLP (US)

- and -

Thomas R. Califano (admitted pro hac vice) DLA Piper LLP (US) 1251 Avenue of the Americas New York, New York 10020-1104 Tel: (212) 335-4500 Fax: (212) 335-4501 E-mail: [email protected]

- and -

Rachel Nanes (admitted pro hac vice) DLA Piper LLP (US) 200 South Biscayne Boulevard, Suite 2500 Miami, Florida 33131 Tel: (305) 423-8563 Fax: (305) 675-8206 E-mail: [email protected]

Proposed Counsel for the Debtors

7 Case 20-31840-sgj11 Doc 104-2 Filed 07/17/20 Entered 07/17/20 21:33:28 Page 1 of 16

Exhibit B

Engagement Letter Case 20-31840-sgj11 Doc 104-2 Filed 07/17/20 Entered 07/17/20 21:33:28 Page 2 of 16 Case 20-31840-sgj11 Doc 104-2 Filed 07/17/20 Entered 07/17/20 21:33:28 Page 3 of 16 Case 20-31840-sgj11 Doc 104-2 Filed 07/17/20 Entered 07/17/20 21:33:28 Page 4 of 16 Case 20-31840-sgj11 Doc 104-2 Filed 07/17/20 Entered 07/17/20 21:33:28 Page 5 of 16 Case 20-31840-sgj11 Doc 104-2 Filed 07/17/20 Entered 07/17/20 21:33:28 Page 6 of 16 Case 20-31840-sgj11 Doc 104-2 Filed 07/17/20 Entered 07/17/20 21:33:28 Page 7 of 16 Case 20-31840-sgj11 Doc 104-2 Filed 07/17/20 Entered 07/17/20 21:33:28 Page 8 of 16 Case 20-31840-sgj11 Doc 104-2 Filed 07/17/20 Entered 07/17/20 21:33:28 Page 9 of 16 Case 20-31840-sgj11 Doc 104-2 Filed 07/17/20 Entered 07/17/20 21:33:28 Page 10 of 16 Case 20-31840-sgj11 Doc 104-2 Filed 07/17/20 Entered 07/17/20 21:33:28 Page 11 of 16 Case 20-31840-sgj11 Doc 104-2 Filed 07/17/20 Entered 07/17/20 21:33:28 Page 12 of 16 Case 20-31840-sgj11 Doc 104-2 Filed 07/17/20 Entered 07/17/20 21:33:28 Page 13 of 16 Case 20-31840-sgj11 Doc 104-2 Filed 07/17/20 Entered 07/17/20 21:33:28 Page 14 of 16 Case 20-31840-sgj11 Doc 104-2 Filed 07/17/20 Entered 07/17/20 21:33:28 Page 15 of 16 Case 20-31840-sgj11 Doc 104-2 Filed 07/17/20 Entered 07/17/20 21:33:28 Page 16 of 16 Case 20-31840-sgj11 Doc 104-3 Filed 07/17/20 Entered 07/17/20 21:33:28 Page 1 of 18

Exhibit C

Morgner Declaration Case 20-31840-sgj11 Doc 104-3 Filed 07/17/20 Entered 07/17/20 21:33:28 Page 2 of 18

IN THE UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

In re: § Chapter 11 § TRIVASCULAR SALES LLC, et al.,1 § Case No. 20-31840 (SGJ) § Debtors. § (Jointly Administered) §

DECLARATION OF RICHARD MORGNER IN SUPPORT OF DEBTORS’ APPLICATION FOR ENTRY OF AN ORDER (I) AUTHORIZING THE RETENTION AND EMPLOYMENT OF JEFFERIES LLC AS INVESTMENT BANKER FOR THE DEBTORS PURSUANT TO 11 U.S.C. §§ 327(a) AND 328(a), EFFECTIVE AS OF THE PETITION DATE AND (II) WAIVING CERTAIN TIME-KEEPING REQUIREMENTS

I, Richard Morgner, hereby declare under penalty of perjury that, to the best of my

knowledge and belief, and after reasonable inquiry, the following is true and correct:

1. I am a Managing Director at Jefferies LLC (“Jefferies”), an investment banking and

financial advisory firm with principal offices located at 520 Madison Avenue, New York, New

York 10022, as well as at other locations worldwide.

2. I submit this Declaration (this “Declaration”) in support of the application

(the “Application”)2 filed by the above-captioned debtors in these chapter 11 cases (collectively,

the “Debtors”). This Declaration is also submitted as the statement required pursuant to sections

328(a), 329 and 504 of title 11 of the United States Code (the “Bankruptcy Code”) and Rules

2014(a) and 2016(a) of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”). I

2 Capitalized terms used in this Declaration and not immediately defined have the meanings given to such terms in the Application. Case 20-31840-sgj11 Doc 104-3 Filed 07/17/20 Entered 07/17/20 21:33:28 Page 3 of 18

have read the Application and any factual recitations therein and attest to the truth and accuracy of

such factual recitations as if fully restated herein.

3. Jefferies has agreed to provide investment banking services to the Debtors in these

chapter 11 cases pursuant to the terms and conditions of the Engagement Letter between the

Debtors and Jefferies, a copy of which is attached to the Application as Exhibit B.

4. Except as otherwise noted, I have personal knowledge of the matters set forth

herein, and, if called as a witness, I would testify thereto. Certain of the disclosures herein,

however, relate to matters within the personal knowledge of other professionals at and

representatives of Jefferies and are based on information provided by such professionals.

JEFFERIES’ QUALIFICATIONS

5. I believe that Jefferies and the professionals it employs are uniquely qualified to

advise the Debtors on the matters for which Jefferies is proposed to be employed in a cost-

effective, efficient, and timely manner.

6. Jefferies is a registered broker-dealer with the United States Securities and

Exchange Commission and a member of the Boston Stock Exchange, the International Stock

Exchange, the Financial Industry Regulatory Authority, the Pacific Stock Exchange, the

Philadelphia Stock Exchange, and the Securities Investor Protection Corporation. Jefferies was

founded in 1962 and is a wholly-owned subsidiary of Jefferies Group LLC, which, together with

its affiliates, has gross assets of approximately $45 billion and approximately 3,900 employees in

more than 30 offices around the world.

7. Jefferies provides a broad range of corporate advisory services to its clients

including, without limitation, services relating to the following: (a) general financial advice;

(b) mergers, acquisitions, and divestitures; (c) special committee assignments; (d) capital raising;

2 Case 20-31840-sgj11 Doc 104-3 Filed 07/17/20 Entered 07/17/20 21:33:28 Page 4 of 18

and (e) corporate restructurings. Jefferies and its senior professionals have extensive experience

in the reorganization and restructuring of troubled companies, both out of court and in chapter 11

proceedings. Jefferies has advised debtors, creditor and equity constituencies, and purchasers in

numerous reorganizations in the United States and worldwide. Since 2007, Jefferies has been

involved in more than 125 restructurings representing more than $300 billion in restructured

liabilities.

8. Jefferies was engaged by the Debtors on March 4, 2020 to explore restructuring

alternatives. As a result, Jefferies is intimately familiar with the Debtors’ corporate and capital

structure, management, business operations, and potential investor universe. In addition, prior to

the Petition Date, Jefferies advised the Debtors regarding out-of-court restructuring transactions

consummated in April 2019 and February 2020, and ultimately advised the Debtors in connection

with the preparation of these chapter 11 cases. Thus, the Debtors believe that Jefferies is both well

qualified and uniquely able to advise the Debtors in these chapter 11 cases.

9. Jefferies has extensive experience in reorganization cases and has an excellent

reputation for services it has rendered in large and complex chapter 11 cases on behalf of debtors,

creditors, and creditors’ committees throughout the United States. Jefferies has advised on the

following chapter 11 cases, among others: In re Foresight Energy LP, Case No. 20-41308-659

(Bankr. E.D. Mo. Apr. 7. 2020); In re Melinta Therapeutics, Inc., Case No. 19-12748 (LSS)

(Bankr. D. Del. Feb. 7, 2020); In re EP Energy Corp., Case No. 19-35654 (MI) (Bankr. S.D. Tex.

Jan. 8, 2020); In re Dura Automotive Systems, LLC, Case No. 19-12378 (KBO) (Bankr. D. Del.

Dec. 3, 2019); In re Synergy Pharmaceuticals Inc., Case No. 18-14010 (JLG) (Bankr. S.D.N.Y.

Mar. 7, 2019); In re Westmoreland Coal Co., Case No. 18-35672 (DRJ) (Bankr. S.D. Tex. Dec. 6,

2018); In re Mission Coal Co., LLC, Case No. 18-04177-TOM11 (Bankr. N.D. Ala. Nov. 30,

3 Case 20-31840-sgj11 Doc 104-3 Filed 07/17/20 Entered 07/17/20 21:33:28 Page 5 of 18

2018); In re Claire’s Stores, Inc. Case No. 18-10584 (MFW) (Bankr. D. Del. Aug. 3, 2018); In re

Gibson Brands, Inc., Case No. 18-11025 (CSS) (Bankr. D. Del. June 6, 2018); In re iHeartMedia,

Case No. 18-31274 (MI) (Bankr. S.D. Tex. May 30, 2018); In re Armstrong Energy, Inc., Case

No. 17-47541-659 (Bankr. E.D. Mo. Jan. 16, 2018); In re Real Industry, Inc., Case No. 17-12464

(KJC) (Bankr. D. Del. Dec. 19, 2017); In re Goodman Networks, Inc., Case No. 17-31575 (MI)

(Bankr. S.D. Tex. Apr. 20, 2017); In re BCBG Max Azria Global Holdings, LLC, Case No. 17-

10466 (SCC) (Bankr. S.D.N.Y. Mar. 29, 2017); In re Peabody Energy Corp., Case No. 16-42529

(BSS) (Bankr. E.D. Mo. June 17, 2016); In re Aspect Software Parent, Inc., No. 16-10597 (MFW)

(Bankr. D. Del. Apr. 21, 2016); In re Sundevil Power Holdings, LLC, No. 16-10369 (KJC) (Bankr.

D. Del. Apr. 7, 2016); In re Arch Coal, Inc., Case No. 16-40120 (TFE) (Bankr. E.D. Mo. Mar. 21,

2016); In re Alpha Natural Res., Inc., No. 15-33896 (KRH) (Bankr. E.D. Va. Oct. 16, 2015); In re

Patriot Coal Corp., No. 15-32450 (KLP) (Bankr. E.D. Va. July 9, 2015); In re Reddy Ice Holdings,

Inc. and Reddy Ice Corp., Case Nos. 12-32349 and 12-32350 (SGJ) (Bankr. N.D. Tex. May 31,

2012).

JEFFERIES’ DISINTERESTEDNESS

10. By way of further disclosure, in connection with its retention by the Debtors,

Jefferies undertook to determine whether Jefferies: (a) has any connection with the Debtors, their

affiliates, their creditors, or any other parties in interest in these chapter 11 cases; or (b) has an

interest adverse to the interests of the Debtors’ estates or of any class of creditors or equity security

holders.

11. To check potential connections with the Debtors and other parties in interest in

these chapter 11 cases, Jefferies has searched to determine whether it had any relationships with

the entities identified by the Debtors and their representatives as potential parties in interest listed

4 Case 20-31840-sgj11 Doc 104-3 Filed 07/17/20 Entered 07/17/20 21:33:28 Page 6 of 18

on Schedule 1 hereto (the “Potential Parties in Interest”). Specifically, Jefferies entered the names

of the Potential Parties in Interest into a database containing the names of Jefferies’ current and

former investment banking clients. To the extent that this inquiry has revealed that certain

Potential Parties in Interest were current or former investment banking clients of Jefferies within

the past three years, these parties have been identified on a list (the “Client Match List”) annexed

hereto as Schedule 2. Through the information generated from the aforementioned inquiry and

through follow-up inquiries to Jefferies professionals responsible for certain clients listed on the

Client Match List, Jefferies has determined that its representation of the clients on the Client Match

List, if any, concerned matters unrelated to the Debtors. As to the Potential Parties in Interest not

identified on the Client Match List, Jefferies has not been employed by or rendered advisory

services to any such parties within the past three years.

12. As part of its diverse global activities, Jefferies is involved in numerous cases,

proceedings, and transactions involving many different attorneys, accountants, investment bankers,

and financial consultants, some of whom may represent claimants and parties in interest in these

chapter 11 cases. Further, Jefferies has in the past, and may in the future, advise and/or be

represented by several attorneys, law firms and other professionals, some of whom may be

involved in these chapter 11 cases. Finally, Jefferies has in the past, and will likely in the future,

be working with or against other professionals involved in these chapter 11 cases in matters wholly

unrelated to these chapter 11 cases. Based upon our current knowledge of the professionals

involved in these chapter 11 cases, and, to the best of my knowledge, none of these business

relationships constitute interests adverse to the interests of the Debtors’ estates or of any class of

creditors or equity security holders in matters upon which Jefferies is to be employed, and none

are in connection with these chapter 11 cases.

5 Case 20-31840-sgj11 Doc 104-3 Filed 07/17/20 Entered 07/17/20 21:33:28 Page 7 of 18

13. Jefferies is a global investment banking firm with broad activities covering, in

addition to its investment banking and financial advisory practice, trading in equities, convertible

securities, and corporate bonds. With more than 80,000 customer accounts and thousands of

relationships and transactions around the world, it is possible that one or more of Jefferies’ clients

or a counterparty to a securities transaction may hold a claim or interest or otherwise be Potential

Parties in Interest in these chapter 11 cases and that Jefferies and/or its affiliates may have other business

relationships and/or connections with such Potential Parties in Interest. Further, as a major market

maker in equity securities as well as a major trader of corporate bonds and convertible securities,

including those of creditors or parties in interest in these chapter 11 cases, Jefferies regularly enters

into securities transactions with other registered broker-dealers as a part of its daily activities.

Some of these counterparties may be creditors, equity holders, or other parties in interest in these

cases. Jefferies believes that none of these business relationships constitute interests adverse to

the interests of the Debtors’ estates or of any class of creditors or equity security holders in matters

upon which Jefferies is to be employed, and none are in connection with these chapter 11 cases.

14. In addition, as of the date hereof, Jefferies and its affiliates have thousands of

employees worldwide. It is possible that certain of Jefferies’ and its affiliates’ respective directors,

officers and employees may have had in the past, may currently have, or may in the future have

connections to (a) the Debtors, (b) the Potential Parties in Interest, and/or (c) funds or other

investment vehicles that may own debt or securities of the Debtors or other Potential Parties in

Interest. Furthermore, in addition to the parties listed on Schedule 2, Jefferies may also represent,

or may have represented, affiliates, equity holders, and/or sponsors of the Potential Parties in

Interest. Certain of the Potential Parities in Interest may also be vendors or insurers of Jefferies

and/or have other non-investment banking relationships with Jefferies. Jefferies may also

6 Case 20-31840-sgj11 Doc 104-3 Filed 07/17/20 Entered 07/17/20 21:33:28 Page 8 of 18

represent, or may have represented in the past, committees or groups of lenders or creditors in

connection with certain restructuring or refinancing engagements, which committees or groups

include, or included, entities that appear on the Potential Parties in Interest list. Jefferies believes

that none of these business relationships constitute interests adverse to the interests of the Debtors’

estates or of any class of creditors or equity security holders in matters upon which Jefferies is to

be employed, and none are in connection with these chapter 11 cases.

15. Certain affiliates of Jefferies serve as managers for a number of investment vehicles

(collectively, the “Managed Funds”). The Managed Funds are principally intended for investments

by third parties unrelated to Jefferies. However, such investors may also include financial

institutions (some of which may be parties in interest in these chapter 11 cases), affiliates of

Jefferies, or their respective officers and employees (some of whom may be Jefferies’ employees

providing services in connection with these chapter 11 cases). Jefferies’ employees working in

connection with these chapter 11 cases have no control over or involvement in investment decisions

made for the Managed Funds. With respect to the Managed Funds, Jefferies makes the following

additional disclosures:

(a) Among other things, the Managed Funds are (i) active direct investors in a number of portfolio companies (the “Equity Investments”) and (ii) investors in a variety of debt instruments and mezzanine loans or similar securities (the “Income Investments” and, together with the Equity Investments, the “Portfolio Holdings”); and

(b) The fund managers of the Managed Funds maintain control over investment decisions with respect to the Portfolio Holdings. Many financial institutions and parties in interest who may be involved in these chapter 11 cases may also be investors in the Managed Funds. Moreover, the Managed Funds may invest from time to time in Portfolio Holdings relating to the Debtors or parties in interest in these chapter 11 cases. In order to comply with securities laws and to avoid any appearance of impropriety, the employees of the Managed Funds are strictly separated from the employees of Jefferies. Jefferies maintains a strict separation between its employees assigned to these chapter 11 cases and employees involved in the management of Jefferies’ investment banking division, on the one hand, and

7 Case 20-31840-sgj11 Doc 104-3 Filed 07/17/20 Entered 07/17/20 21:33:28 Page 9 of 18

other employees of Jefferies (e.g., sales and trading employees) and its affiliates (including the employees of the Managed Funds), on the other hand. This separation is maintained through the use of information walls. These information walls include physical and technological barriers, compliance, and surveillance mechanisms, and policies and procedures designed to prevent confidential information from being shared improperly. Consequently, as no confidential information concerning the Debtors is permitted to be communicated to any persons working for the Managed Funds, Jefferies does not believe that the relationships outlined above constitute interests adverse to the estates or render Jefferies not disinterested in these chapter 11 cases.

16. In addition, as part of its regular business operations, Jefferies may trade securities

and other instruments of the Debtors on behalf of third parties (some of whom may be parties in

interest in these chapter 11 cases). Jefferies may also trade securities and other instruments of the

Potential Parties in Interest on behalf of itself and/or its affiliates or third parties. Any and all such

trading operations and market making activities are separated from Jefferies’ investment banking

department, and its managing directors and employees (including the investment banking

professionals working on these chapter 11 cases), by an information barrier, and no Jefferies

professionals providing services to the Debtors will be involved with such trading operations and

market making activities in any capacity.3 Jefferies does not own or hold securities of the Debtors

on behalf of itself and/or its affiliates and shall not own or hold securities of the Debtors on behalf

of itself and/or its affiliates while employed by the Debtors.

17. The Debtors have numerous creditors and relationships with a large number of

individuals and entities that may be parties in interest in these chapter 11 cases. Consequently,

although every reasonable effort has been made to discover Jefferies’ connections with the Potential

Parties in Interest, Jefferies is unable to state with certainty whether any of its clients or an affiliated

3 These information barriers include physical and technological barriers, compliance and surveillance mechanisms and policies and procedures designed to prevent confidential information from being shared improperly.

8 Case 20-31840-sgj11 Doc 104-3 Filed 07/17/20 Entered 07/17/20 21:33:28 Page 10 of 18

entity of a client holds a claim or otherwise is a party in interest in these chapter 11 cases.

If Jefferies discovers any information that is contrary or pertinent to the statements made herein,

Jefferies will promptly disclose such information to the Court. Additionally, as noted above,

Jefferies is part of a global investment banking firm and thus has several legally separate and

distinct foreign and domestic affiliates. Although employees of certain affiliates may sometimes

assist Jefferies in connection with a restructuring engagement, as Jefferies is the only entity being

retained in these chapter 11 cases, we have researched only the electronic client files and records

of Jefferies, not of all of its affiliates, to determine connections with any Potential Parties in

Interest.

18. Jefferies does not advise, has not advised, and will not advise any entity other than

the Debtors in matters related to these chapter 11 cases. Jefferies will, however, continue to provide

professional services to entities or persons that may be creditors of the Debtors or parties in interest

in these chapter 11 cases, provided that such services do not relate to, or have any direct connection

with, these chapter 11 cases or the Debtors.

19. Except as otherwise set forth herein, to the best of my knowledge, information, and

belief, Jefferies: (a) is not a creditor, equity security holder, or an insider of the Debtors; and

(b) was not, within two years before the Petition Date, a director, officer, or employee of any of

the Debtors. In addition, none of the Jefferies’ professionals expected to assist the Debtors in these

chapter 11 cases are related or connected to any United States Bankruptcy Judge for the Northern

District of Texas, the U.S. Trustee, or any person employed by the U.S. Trustee.

PROFESSIONAL COMPENSATION

20. During the 90-day period prior to the commencement of these chapter 11 cases,

Jefferies was paid in the ordinary course certain Monthly Fees and expense reimbursements.

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Specifically, (i) on May 14, 2020 Jefferies was paid $100,000 on account of its April 2020 Monthly

Fee, (ii) on May 27, 2020 Jefferies was paid $100,000 on account of its May 2020 Monthly Fee,

and (iii) on June 19, 2020 Jefferies was paid $100,000 on account of its June 2020 Monthly Fee

and $25,000 on account of an expense advance. Jefferies will apply any expense advance received

first to expenses incurred but not reimbursed prepetition, and second to any expenses incurred after

the Petition Date.

21. The Fee and Expense Structure set forth in the Application is consistent with

Jefferies’ typical fee for work of this nature. The fees are set at a level designed to compensate

Jefferies fairly for the work of its professionals and assistants and to cover fixed and routine

overhead expenses. It is Jefferies’ policy to charge its clients for all disbursements and expenses

incurred in the rendition of services.

22. It is not the general practice of investment banking firms to keep detailed time

records similar to those customarily kept by attorneys. Jefferies’ restructuring professionals, when

formally retained in chapter 11 cases, and when required by local rules, do, and in these chapter

11 cases will, keep time records in half-hour increments describing their daily activities and the

identity of persons who performed such tasks. Jefferies will also supplement this information with

a list of the non-restructuring professionals who assist the restructuring department on this matter

but who do not, as a matter of general practice, keep records in the same manner.

23. The Fee and Expense Structure is comparable to those generally charged by

investment banking firms of similar stature to Jefferies and for comparable engagements, both in

and out of court, and reflect a balance between a fixed, monthly fee, and a contingency amount

which are tied to the consummation and closing of a transaction as contemplated in the

Engagement Letter.

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24. The Engagement Letter was negotiated at arm’s length and in good faith, and I

believe that the provisions contained therein are reasonable terms and conditions of Jefferies’

employment by the Debtors. With respect to the Engagement Letter’s indemnification provisions,

unlike the market for other professionals that a debtor or committee may retain, indemnification is

a standard term of the market for investment bankers. The indemnity, moreover, is comparable to

those generally obtained by investment banking firms of similar stature to Jefferies and for

comparable engagements, both in and out of court.

25. Other than as set forth above and in the Engagement Letter, there is no proposed

arrangement between the Debtors and Jefferies for compensation to be paid in these chapter 11

cases. Jefferies has no agreement with any other entity to share any compensation received, nor

will any be made, except as permitted under section 504(b)(1) of the Bankruptcy Code.

26. The foregoing constitutes the statement of Jefferies pursuant to section 504 of the

Bankruptcy Code and Bankruptcy Rules 2014(a) and 5002.

[Remainder of page intentionally left blank]

11 Case 20-31840-sgj11 Doc 104-3 Filed 07/17/20 Entered 07/17/20 21:33:28 Page 13 of 18

In accordance with 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing

is true and correct.

Dated: July 17, 2020 Respectfully submitted,

/s/ Richard Morgner Richard Morgner Managing Director and Joint Global Head of Debt Advisory & Restructuring Jefferies LLC

12 Case 20-31840-sgj11 Doc 104-3 Filed 07/17/20 Entered 07/17/20 21:33:28 Page 14 of 18

Schedule 1

Potential Parties in Interest

Debtors Neels, Guido J. CVD/RMS Acquisition Corporation Norwalk, Leslie V. Endologix Canada, LLC O’Quinn, Shari L. Endologix, Inc. Onopchenko, John Nellix, Inc. Pinto, Cindy RMS/Endologix Sideways Merger Corp. Tansley, Valarie LS TriVascular Sales LLC Thompson, Matthew TriVascular Technologies, Inc. Thunen, Shelley TriVascular, Inc. Waller, Gregory D. Wilder, Thomas C. Non-Debtor Affiliates Zehren, John ELGX International Holdings GP Zenty III, Thomas F. Endologix International Holdings B.V. ELGX South Korea Ltd. Significant Equity Holders Endologix International B.V. ArrowMark Colorado Holdings, LLC Endologix New Zealand Co. Blackrock, Inc. Endologix Bermuda L.P. Brown Capital Management LLC Endologix Italia S.r.l. Camber Capital Management LLC Endologix Singapore Private Ltd. Columbia Wanger Asset Management, LLC Endologix Poland sp. zo.o Corrib Master Fund, Ltd. (Hedge Fund) TriVascular Germany GmbH Pinnacle Ventures III Equity Holdings TriVascular Switzerland Sarl Saints Ventures II, L.P. TriVascular Italia Sarl The Vanguard Group Wellington Management Co. LLP Current and Former Directors and Officers Abraham, Todd Bankruptcy Professionals Benner, Tim DLA Piper LLP (US) Brown, Jeff FTI Consulting, Inc. Chavez, Christopher G. Jefferies Group, LLC Chobotov, Michael Omni Agent Solutions De John, Joseph Ernst & Young Elting, Kimberly Fecho, Jeffry Ordinary Course Professionals Fernandez, Reyna Aon Consulting Inc Hayden, Jeremy B. Bowman and Brooke LLP Hebb, Elisa Brentwood IP Law, P.C. Jayaramen, Viver Christopher Robert LaQuay Jennings, David CPA Global Limited Kiernan, Jane E. Dentons US LLP Kramer, Michael Ernst & Young Krist, Robert FieldFisher LLP Lemaitre, Dan Fish & Richardson P.C. Lima, Jose Foley & Lardner LLP Mahboob, Vaseem King & Spalding McDermott, John Knobbe, Martens, Olson & Bear Mott, Richard KPMG US LLP

1 Case 20-31840-sgj11 Doc 104-3 Filed 07/17/20 Entered 07/17/20 21:33:28 Page 15 of 18

Law Office of David M. Griff Kentucky Department of Revenue Ropes & Gray, LLP Louisiana Department of Revenue Thompson Hine LLP Maine Secretary of State Minnesota Revenue Banking Institutions Missouri Department of Revenue Bank of America, N.A. Nevada Dept of Taxation Bank of Montreal New Mexico Taxation and Revenue Piper Jaffray Companies New York State Corporation Tax Commission Piper Sandler Companies North Carolina Department of Revenue Silicon Valley Bank Oklahoma Tax Commission Wells Fargo Bank Pennsylvania Department of Revenue Secretary of State Secured Lenders and Creditors South Carolina Dept of Revenue Bank of America, N.A. State of Rhode Island BTIG, LLC Tennessee Department of Revenue Deerfield ELGX Revolver, LLC Texas Secretary of State Deerfield Partners, L.P. Utah State Tax Commission Deerfield Private Design Fund III, L.P. Virginia Department of Taxation Deerfield Private Design Fund IV, L.P. Wisconsin Department of Revenue Japan Lifeline Co., Ltd Konica Minolta Premier Finance Top 30 Unsecured Creditors US Bank Equipment Finance Baker & McKenzie Wells Fargo Bank, N.A Bank of America, N.A. Wilmington Trust, N.A. Begala, David Demo Arts Second Lien Creditors and Noteholders FedEx Blackwell Partners-LLC Series B Fogarty, Dr. Thomas J. Citadel Equity Fund, Ltd. Griffin, Robert C. Corrib Master Fund, Ltd. Hayes, James LMAP Kappa Limited Heuser, Richard Long Ball Partners, LLC Japan Lifeline Co. Ltd NPB Manager Fund, SPC. Kaiser Permanente PCH Manager Fund, SPC. Kerr, Dr. Andrew PFM Healthcare Master Fund, L.P. Lakey, Michael Silverback Opportunistic Credit Master Fund LinkedIn Corporation Limited Maine Medical Center Merit Medical System Taxing Authorities Millennium Research Group Alabama Department of Revenue Neve, Sr. Kevin Arizona Department of Revenue OSCOR, Inc. Arkansas Department of Finance Qualtech Consulting Corp. Board of Equalization Reed, Donald Colorado Department of Revenue Salinas, Robert Commissioner of Revenue Service Santoro, Ronald D.C. Treasurer Silversteen, Charles Department of Revenue Stockton, Raymond Hawaii Department of Taxation Stradling, Yocca, Carlson & Rauth Indiana Department of Revenue Ventois, Inc. Inland Revenue Authority of Singapore Wells Fargo Bank, N.A., as Indenture Trustee of Internal Revenue Service the 3.25% Convertible Senior Notes due 2020

2 Case 20-31840-sgj11 Doc 104-3 Filed 07/17/20 Entered 07/17/20 21:33:28 Page 16 of 18

Wilmington Trust, N.A. as Indenture Trustee of SurModics, Inc. the 5% Mandatory Convertible Notes due 2024 Thomas L. Fogarty, M.D. Wilmington Trust, N.A. as Indenture Trustee of Trinity Health Corporation the 5% Voluntary Convertible Notes due 2024 Tucson Medical Center UC San Diego Health Key Contract Parties University of Kentucky AdventHealth University of Kentucky Medical Center Adventist Health System Sunbelt Healthcare Vidant Health Corporation Vidant Medical Center AHS Management Company, Inc. Vitoria Hospitalar Angiocor S.A. Washington Regional Medical Center Ardent Health Services Wellmont Health System Arnot Ogden Medical Center Zeus Industrial Products, Inc. Bard Peripheral Vascular, Inc. Baystate Medical Center Landlords Blanche Holdings Ltd. The Northwestern Mutual Life Insurance BSC Int'l Medical Transing (Shanghai) Co., Ltd. Company Business Services Corporation Sonoma Airport Properties, LLC Carle Foundation Hospital CarolinaEast Medical Center Utility Companies Catholic Health Services of Long Island AT&T CMS Medical AT&T Mobility Commercial Medical Chile LTDA CenturyLink DCH Regional Medical Center DirecTV Dignity Health Flexential DSM Bio Medical, Inc. Irvine Ranch Water District PG&E Freeman Health System Recology Getinge Australia Pty Ltd. Southern California Edison GF Labor Comerico e Servico Ltda. Town of Windsor H.S. S.r.l. Verizon Wireless Huntsville Hospital Health System Vista Incept LLC Waste Management Japan Lifeline Co., Ltd. Kaleida Health Employee Benefit Providers and Employment Main Line Hospitals, Inc. Agencies McLaren Health Care Corporation Aetna MedStar Health, Inc. Celergo LLC Medtronic Vascular, Inc. GeoBlue Merit Medical Systems, Inc. Great-West Life & Annuity Insurance Company Judge Technical Services, Inc. NorMedix, LLC Kaiser Owensboro Health Regional Hospital Marsh & McLennen Owensboro Health System Metlife Presifarm S.r.l. The Ultimate Software Group, Inc. Resource Optimization & Innovation, LLC Sofmedica SRL Insurers Somnotec (S) PTE, Ltd. AIG Supply Chain Value Network, LLC AIG / National Union Fire Insurance Company of Pittsburgh, PA

3 Case 20-31840-sgj11 Doc 104-3 Filed 07/17/20 Entered 07/17/20 21:33:28 Page 17 of 18

Allianz Global US Risk Insurance Company ANV – Amtrust International Underwriters Berkley Insurance Company Capitol Indemnity Corp. Chubb / Federal Insurance CNA / Continental Casualty Company Crump Insurance Services/ Chubb Custom Insurance Falvey Cargo Underwriting / Underwriters at Lloyd's London Homeland Insurance Company of New York Hudson Insurance Company National Union Fire Insurance Company of Pittsburgh, PA Old Republican Insurance Company/CUG One Beacon / Homeland Insurance Co of NY Starstone Specialty Insurance Travelers/Travelers Casualty & Surety Company of America Travelers Insurance VIKCO/Lloyd’s of London Wesco Insurance Company Westchester Surplus Lines

Office of the United States Trustee Kippes, Meredyth Lambert, Lisa L. McKitt, Stephen Resnick, Nancy S. Schmidt, Erin

Judges in the United States Bankruptcy Court Hale, Harlin D. Houser, Barbara J. Jernigan, Stacey G.C. Jones, Robert L. Morris, Edward L. Mullin, Mark X. Larson, Michele V.

4 Case 20-31840-sgj11 Doc 104-3 Filed 07/17/20 Entered 07/17/20 21:33:28 Page 18 of 18

Schedule 2

Client Match List

Allianz Capital Partners GmbH American Academy Holdings, LLC American Assets Trust American Fidelity Assurance Company American Homes 4 Rent American Tire Distributors, Inc. Ardent Health Services AT&T’s Colocation Business Bank of America Merrill Lynch BV Baystate Medical Center Inc. Blackrock Infrastructure BlackRock, Inc. Catholic Health Initiatives CenturyLink, Inc Conifer Health Solutions, L.L.C CPA Global DFP Healthcare Acquisitions Corp Exponent Private Equity LLP Flexential Freeman Spogli & Co. Incorporated Kaiser Aluminum Corporation London Central Portfolio Limited Pinnacle Property Vanguard Natural Resources LLC Vista Bancshares, Inc. Vista Proppant & Logistics Young Innovations Inc.