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Case 8:10-bk-16743-RK
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RON BENDER (SBN 143364) JACQUELINE L. RODRIGUEZ (SBN 198838) TODD M. ARNOLD (SBN 221868) JOHN-PATRICK M. FRITZ (SBN 245240) LEVENE, NEALE, BENDER, RANKIN & BRILL L.L.P. 10250 Constellation Boulevard, Suite 1700 Los Angeles, California 90067 Telephone: (310) 229-1234; Facsimile: (310) 229-1244
Email: rb@lnbrb.com; jlr@lnbrb.com; tma@lnbrb.com; jpf@lnbrb.com
Proposed Attorneys for Chapter 11 Debtors and Debtors in Possession UNITED STATES BANKRUPTCY COURT CENTRAL DISTRICT OF CALIFORNIA (SANTA ANA DIVISION) In re: WESTCLIFF MEDICAL LABORATORIES, INC., Debtor. ____________________________ BIOLABS, INC., Debtor. ____________________________ Affects Both Debtors Affects WESTCLIFF MEDICAL LABORATORIES, INC. only Affects BIOLABS, INC. only [Proposed] Lead Case No. 8:10-bk16743-RK [Proposed] Jointly Administered with Case No. 8:10-bk-16746-RK1 Chapter 11 Cases
APPLICATION OF DEBTORS AND DEBTORS IN POSSESSION TO EMPLOY KIRKLAND & ELLIS LLP AS SPECIAL CORPORATE COUNSEL PURSUANT TO 11 U.S.C. 327(e) AND 330; DECLARATION OF RYAN BENNETT IN SUPPORT THEREOF
[No Hearing Required Bankruptcy Rule 2014-1(b)]
Local
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Motion for Joint Administration pending.
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In support of this application (the Application) to employ Kirkland & Ellis LLP (K&E) as special corporate counsel pursuant to 11 U.S.C. 327(e) and 330, Westcliff Medical Laboratories, Inc. (Westcliff) and BioLabs, Inc. (BioLabs), chapter 11 Debtors and Debtors-in-Possession (collectively, the Debtors), hereby respectfully represent as follows: A. BACKGROUND. 1. On May 19, 2010 (the Petition Date), the Debtors
9 commenced their bankruptcy cases by filing voluntary petitions 10 under chapter 11 of 11 U.S.C. 101 et seq. (the Bankruptcy 11 Code). 12 13 14 15 16 17 18 19 20 21 22 23 24 alone, patient service center laboratories and STAT labs that 25 provide various services, including clinical testing, pathology, 26 27 2 their financial affairs, and operate their bankruptcy estates as debtors in possession pursuant to Sections 1107 and 1108 of the Bankruptcy Code. 2. BioLabs is the parent company to Westcliff, which is Biolabs was organized for the purposes of The Debtors continue to operate their business, manage
the operating company.
acquiring 100% of the capital stock and other equity interests of Westcliff. The only material asset owned by BioLabs is its stock
interest in the Debtor. 3. Westcliff was founded in 1964 as a community-based
laboratory and is headquartered in Santa Ana, California. Westcliff is the operator of approximately 170 branded, stand-
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reporting and support services for the benefit of thousands of out-patients throughout California. 1,000 employees. 4. The Debtors main clinical hub is an 80,000 square foot The Debtors have nearly
facility located in Santa Ana, California that opened in 2006. The Debtors primary anatomical pathology lab is a 12,800 square foot facility located in Monrovia, California that opened in
8 2008. 9 5. 10 payors, including United Health, Aetna, Cigna, Blue Cross, Medi11 Cal and Medicare, Westcliff has grown and become a leading out12 13 14 15 16 17 18 19 20 21 22 23 24 the largest in the nation, with estimated revenues of 25 approximately $2 billion. 26 27 3 Approximately 8% of the nations tests patient laboratory service company. Westcliffs lab operations Working directly with patients and with contracted
demonstrate industry-leading results, with low testing turnaround times, high quality control scores, and a strong and experienced sales and marketing team. 6. Westcliff averages approximately 8,500 clinical
requests per day and approximately 1,200 pathology requests per day, and performs approximately 250,000 cytology and 70,000 biopsy tests on an annual basis. Based on this performance, the
Debtors had approximately $97 million in net revenue in 2009 and are the third largest clinical laboratory in California. 7. The California clinical laboratory testing market is
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are performed in California, and over 200 million of Californias tests are conducted by independent labs (excluding hospital based labs). Based on current volume, the Debtors account for
approximately 5% of the California market. 8. Much of the Debtors growth has come from the
acquisition of other labs, which caused the Debtors to incur a substantial amount of debt. The Debtors owe approximately $56
8 million to GE Business Financial Services, Inc. (GE), which is 9 secured by a senior priority lien against all or substantially 10 all of the Debtors assets. 11 Debtors is relatively small in nature and relates to liens 12 13 14 15 16 17 18 19 20 21 22 23 24 million. 25 million in 2009 (including expenses and write offs of 26 27 4 The Debtors suffered a net loss of approximately $13 against only certain of the Debtors equipment. have a substantial amount of unsecured debt. B. THE NECESSITY FOR FILING BANKRUPTCY. 9. While the Debtors revenue is significant, due to the The Debtors also Any other secured debt of the
small profit margins in this business, despite significant and continuing cost cutting measures undertaken by the Debtors, the Debtors are simply not able to operate sufficiently profitably to enable the Debtors to repay their debts. 10. The Debtors suffered a net loss of approximately $87
million in 2008 (including expenses and write offs of approximately $171 million) on net revenue of approximately $84
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approximately $110 million) on net revenue of approximately $97 million. 11. While the Debtors instituted as many expense reductions
as were reasonably possible, the Debtors losses continued. Since the beginning of 2009, the Debtors have been unable to make any debt service payments to GE, and the Debtors have been unable to remain current with their other debt obligations, including
8 payments owing to former owners of companies the Debtors 9 previously purchased as part of the Debtors overall growth 10 strategy. 11 financially over the past approximately seventeen months because 12 13 14 15 16 17 18 19 20 21 22 23 24 option available to the Debtors to avoid a shut down of their 25 business and the loss of employment by all of the Debtors 26 27 5 GE agreed to provide the Debtors with additional funding. 12. The only way the Debtors can survive as a stand alone Indeed, the Debtors were only able to survive
going concern business would be for the Debtors to raise many millions of dollars of additional equity which is not possible given the Debtors debt structure. 13. While the Debtors anticipate growth in Westcliffs
business operations and reducing per patient costs and increasing profits in the years to come, the Debtors realized that they needed additional time and funding to accomplish such results. The Debtors were not able to obtain such funding. It therefore
became clear to the Debtors in early 2009 that the only viable
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employees would be for the Debtors to sell their business as a going concern to the highest bidder. Therefore, as set forth in
numerous concurrently filed pleadings, the Debtors determined that an expedited sale of substantially all of the Debtors assets in bankruptcy followed by a liquidating plan was in the overwhelming best interests of the Debtors estates and their creditors.
8 C. 9 14. 10 been engaged in an active sale process since early 2009. 11 assist the Debtors with this sale process, the Debtors engaged 12 13 14 15 16 17 18 19 20 21 22 23 24 the optimal buyer of the Debtors business for three primary 25 26 27 6
2 The Debtors had used other professionals for this same purpose in the past.
THE PROPOSED SALE. In consideration of the foregoing, the Debtors have To
MTS Health Partners, LP (MTS) in October 2009 as a financial advisor to assist the Debtors with their sale process.2 MTS,
working closely with the Debtors, conducted an exhaustive sale process, having prepared detailed sale materials and having had extensive discussions and interactions with numerous prospective buyers, both strategic buyers and financial buyers. 15. After having engaged in substantial due diligence and
negotiations with a number of different prospective buyers over the past many months, MTS and the Debtors collectively concluded that Laboratory Corporation of America (Lab Corp) and its wholly-owned subsidiary Wave Newco, Inc. (the Purchaser) was
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reasons.
First, Lab Corp, which is in the same business as
Westcliff but is a much larger company, expressed the greatest interest in purchasing the Debtors business. Second, it was
clear that Lab Corp as a strategic buyer was willing to pay a substantially higher price for the Debtors business than any other prospective buyer. Third, Lab Corp clearly has the
financial means to consummate its purchase of the Debtors 8 business.3 9 16. 10 multiple drafts of asset purchase agreements over an extended 11 period of time, the Debtors and the Purchaser entered into an 12 13 14 15 16 17 18 19 20 21 22 23 24 and the APA, as well as the drafting of the APA. 25 26 27 7
3 Lab Corp has established Purchaser as a wholly-owned subsidiary of Lab Corp solely for the purpose of acquiring the Purchased Assets.
After arms-length negotiations, including exchanges of
Asset Purchase Agreement (the APA) to effectuate a sale (the Sale) of substantially all of the Debtors assets to Purchaser, or an overbidder. Motions to approve the bidding procedures and
sale contemplated by the APA have already been, or soon will be, filed with the Court. The purchase price under the APA is $57.5
million, subject to certain adjustments. D. THE EMPLOYMENT OF K&E. 17. K&E has served as the Debtors general corporate
counsel since 2008, and is familiar with the Debtors businesses, including their capital and debt structure. K&E also was
extensively involved in the negotiation of the terms of the Sale
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18.
Based on the foregoing, and after taking into account
firm size, experience, skill level and cost, the Debtors have determined that K&E is the ideal special corporate counsel to continue representing the Debtors in corporate matters in their bankruptcy cases. Therefore, the Debtors seek to employ K&E as
their special corporate counsel pursuant to Sections 327(e) and 330 of the Bankruptcy Code, at the expense of the Debtors
8 bankruptcy estates, and to have the Debtors employment of K&E be 9 deemed effective as of the Petition Date. 10 19. 11 special corporate counsel to render, among others, the following 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 8 types of professional services: a. Rankin & to assist the Debtors and Levene, Neale, Bender, Brill L.L.P. (LNBRB), the Debtors proposed In particular, the Debtors seek to employ K&E as their
general bankruptcy counsel, in drafting documents and taking actions that may be necessary to consummate the Sale; b. to assist the Debtors preparing all documents and
taking all actions necessary for the Debtors to maintain their Corporate status in good standing; c. to assist and advise the Debtors and LNBRB
regarding corporate matters that arose prior to the Petition Date and that arise after the Petition Date;
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d.
to provide corporate information to LNBRB that may
be required to move the Debtors bankruptcy cases forward; and e. to perform any other services which may be
appropriate in K&Es representation of the Debtors as their special cases. corporate counsel during the Debtors bankruptcy
8 20. 9 services in which rates are driven by multiple factors relating 10 to the individual lawyer, his or her area of specialization, the 11 firms expertise, performance, and reputation, the nature of the 12 13 14 15 16 17 18 19 20 21 22 23 24 21. 25 compensate K&E fairly for the work of its attorneys and 26 27 9 K&Es hourly rates are set at a level designed to work involved, and other factors. A copy of K&Es general firm K&E operates in a national marketplace for legal
resume is attached as Exhibit 2 to the Declaration of Ryan Bennett, Esq. (the Bennett Declaration) annexed hereto. Because the sub-markets for legal services are fragmented and are affected by a variety of individualized and interdependent factors, K&E has no one rate for an individual biller that applies to all matters for all clients. K&Es rates for an
individual biller may vary as a function of the type of matter, geographic factors, the nature of certain long term client relationships, and various other factors, including those stated above.
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paralegals and to cover fixed and routine overhead expenses. Hourly rates vary with the experience and seniority of the individuals assigned. These hourly rates are subject to periodic
adjustments to reflect economic and other conditions and are consistent with the rates charged elsewhere. In particular,
K&Es current hourly rates for matters related to these chapter 11 cases range as follows:
8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 actually incurred by K&E in connection with such items. 26 27 10 Examples 22. The following professionals presently are expected to Billing Category Partners Associates Paraprofessionals Range $550-$995 $320-$660 $155-$280
have primary responsibility for providing services to the Debtors: Jason Osborn ($590) and Ryan Bennett ($690). In
addition, as necessary, other K&E professionals and paraprofessionals will provide services to the Debtors. Copies
of the professional rsums for the foregoing professionals are attached as Exhibit 3 to the Bennett Declaration. 23. It is K&Es policy to charge its clients in all areas
of practice for identifiable, non overhead expenses incurred in connection with the clients case that would not have been incurred except for representation of that particular client. is also K&Es policy to charge its clients only the amount It
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of such expenses include postage, overnight mail, courier delivery, transportation, overtime expenses, computer-assisted legal research, photocopying, outgoing facsimile transmissions, airfare, meals, and lodging. 24. To ensure compliance with all applicable deadlines in
these chapter 11 cases, from time to time K&E may utilize the services of overtime secretaries. In addition, K&E professionals
8 also may charge their overtime meals and overtime transportation 9 to the Debtors consistent with pre-petition practices. 10 25. 11 duplication in its offices in the United States. 12 13 14 15 16 17 18 19 20 21 22 23 24 Rules, the Guidelines of the Office of the United States 25 26 27 11 charge its clients for facsimile transmissions. K&E has K&E does not K&E currently charges $0.15 per page for standard
negotiated a discounted rate for Westlaw computer-assisted legal research. Computer-assisted legal research is used whenever the
researcher determines that using Westlaw is more cost effective than using traditional (non-computer-assisted legal research) techniques. 26. K&E intends to apply for compensation for professional
services rendered and reimbursement of expenses incurred in connection with these chapter 11 cases, subject to the Courts approval and in compliance with applicable provisions of the Bankruptcy Code, the Bankruptcy Rules, the Local Bankruptcy
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Trustee, and any other applicable procedures and orders of the Court, on an hourly basis. 27. During the one-year period prior to the Petition Date,
the Debtors paid the total sum of $369,588.02 to K&E, including a retainer in the amount of $50,000 (the Retainer). As of the
Petition Date, the balance of the Retainer was approximately $45,000. The Debtors advised K&E that the source of these
8 payments was the Debtors funds. 9 28. 10 retainer payment as defined in In re Production Assocs., Ltd., 11 264 B.R. 180, 18485 (Bankr. N.D. Ill. 2001), and In re McDonald 12 13 14 15 16 17 18 19 20 21 22 23 24 29. 25 authority to be paid from the Debtors estates for any and all 26 27 12 In addition to the Retainer, K&E will seek Court Bros. Construction, Inc., 114 B.R. 989, 99799 (Bankr. N.D. Ill. 1990). As such, K&E earned the classic retainer upon receipt The foregoing Retainer payment constitutes a classic
and, consequently, K&E placed the amounts into its general cash account. To assist K&E with its own cash flow needs, K&E
requests Court authority to apply the remaining Retainer balance on a post-petition basis for any fees and expenses incurred during the Debtors chapter 11 cases. For efficiency purposes,
K&E will bill all of its post-petition fees and expenses to Westcliff. If it subsequently becomes necessary to do so, K&E
can reallocate its fees and expenses for any work which was done solely for the bankruptcy estate of BioLabs.
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fees incurred and expenses advanced by K&E in excess of the Retainer. K&E recognizes that the payment of any such additional
fees and expenses will be subject to further Court order after notice and a hearing. 30. K&E has not received any lien or other interest in
property of the Debtors or of any third party to secure payment of K&E fees or expenses.
8 31. 9 for representing the Debtors with any other person or entity, 10 except among its members. 11 32. 12 13 14 15 16 17 18 19 20 21 22 23 24 respect to the matter on which K&E is to be employed, as required 25 by section 327(e) of the Bankruptcy Code, or for any other 26 27 13 Debtors that will set forth the amount of fees incurred and expenses advanced by LNBRB during the previous month. 33. K&E understands the provisions of 11 U.S.C. 327, 330 K&E will provide monthly billing statements to the K&E has not shared or agreed to share its compensation
and 331 which require, among other things, Court approval of the Debtors employment of K&E as special corporate counsel and of all legal fees and reimbursement of expenses that K&E will receive from the Debtors and the Debtors estates. 34. 35. K&E is not a creditor or an insider of the Debtors. To the best of the Debtors knowledge and as otherwise
disclosed herein and in the Bennett Declaration, (a) K&E does not hold an interest adverse to the interests of the estates with
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reason, and (b) K&E has no connection to the Debtors, their creditors, any other party in interest, their respective attorneys or accountants, the United States Trustee, or any person employed in the Office of the United States Trustee except as may be disclosed above or in the Bennett Declaration. 36. K&E will review its files periodically during the
pendency of these chapter 11 cases to ensure that no conflicts or 8 other disqualifying circumstances exist or arise. 9 relevant facts or relationships are discovered or arise, K&E will 10 use reasonable efforts to identify such further developments and 11 will file promptly a supplemental declaration, as required by 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 14 Bankruptcy Rule 2014(a). 37. Neither K&E nor any member of K&E is, nor was, within If any new
two years before the Petition Date, a director, officer or employee of the Debtors. 38. The Debtors believe that their employment of K&E upon
the terms and conditions set forth above is in the best interest of the Debtors estates.
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DECLARATION OF RYAN BENNETT, ESQ. I, RYAN BENNETT, hereby declare as follows: 1. I am over 18 years of age. Except where otherwise
stated, I have personal knowledge of the facts set forth below and, if called to testify, I could and would testify competently thereto. 2. I am duly licensed to practice law in the state of
Illinois, in the United States District Courts for the Northern 9 District of Illinois and Western District of Michigan, and before 10 the United States Courts of Appeals for the Seventh and Federal 11 Circuits, and the Supreme Court of the United States. 12 3. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 (K&E), proposed special corporate counsel to Levene, Neale, Bender, Rankin & Brill L.L.P. (LNBRB), counsel to Westcliff Medical Laboratories, Inc. (Westcliff) and BioLabs, Inc. (BioLabs), chapter 11 Debtors and Debtors-in-Possession (collectively, the Debtors). 4. I make this declaration in support of the Application I am a partner in the law firm of Kirkland & Ellis, LLP
(the Application) to which this declaration is attached. Unless otherwise stated, all capitalized terms herein have the same meanings as in the Application. Except as otherwise noted, I have personal knowledge of the matters set forth herein.
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K&Es Qualifications K&E has served as the Debtors general corporate More recently, K&E was extensively involved
counsel since 2008.
in the negotiation of the terms of the Sale and APA, as well as the drafting of the APA. 6. K&E has been actively involved in many chapter 11 cases
and has represented debtors in many such cases, including, among others, In re Citadel Broadcasting Corp., No. 09-17442 (BRL)
9 (Bankr. S.D.N.Y. Feb. 3, 2010); In re Stallion Oilfield Servs. 10 Ltd., No. 09-13562 (BLS) (Bankr. D. Del. Nov. 16, 2009); In re 11 Readers Digest Assoc., No. 09-23529 (RDD) (Bankr. S.D.N.Y. Sept. 12 17, 2009); In re Lear Corp., No. 09-14326 (ALG) (Bankr. S.D.N.Y. 13 14 15 16 17 18 19 20 21 22 23 24 25 chapter 11 cases in an efficient and timely manner. 26 27 2 July 31, 2009); In re ION Media Networks, Inc., No. 09-13125 (JMP) (Bankr. S.D.N.Y. June 23, 2009); In re Visteon Corp., No. 09-11786 (CSS) (Bankr. D. Del. June 19, 2009). 7. K&E began representing the Debtors in 2008 with respect
to general corporate and refinancing matters, and more recently with respect to the pending sale. In preparing for its
representation of the Debtors in these bankruptcy cases, K&E has become familiar with the Debtors businesses and many of the potential legal issues that may arise or be relevant in the context of the proposed sale transaction. K&E is both well-
qualified and uniquely able to represent the Debtors in these
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Services to Be Provided Based on the foregoing, and after taking into account
firm size, experience, skill level and cost, the Debtors have determined that K&E is the ideal special corporate counsel to continue representing the Debtors in corporate matters in their bankruptcy cases. Therefore, the Debtors seek to employ K&E as
their special corporate counsel pursuant to Sections 327(e) and 330 of the Bankruptcy Code, at the expense of the Debtors bankruptcy estates, and to have the Debtors employment of K&E be
10 deemed effective as of the Petition Date. 11 9. 12 with that certain engagement letter (the Engagement Letter), 13 dated May 18, 2010, a copy of which is attached to this 14 15 16 17 18 19 20 21 22 23 24 25 26 27 3 declaration as Exhibit 1, the Debtors seek to retain K&E to render the following types of professional services: a. Rankin & to assist the Debtors and Levene, Neale, Bender, Brill L.L.P. (LNBRB), the Debtors proposed Subject to further order of the Court and consistent
general bankruptcy counsel, in drafting documents and taking actions that may be necessary to consummate the Sale; b. to assist the Debtors in preparing all documents
and taking all actions necessary for the Debtors to maintain their corporate status in good standing;
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c.
to
assist
and
advise
the
Debtors
and
LNBRB
regarding corporate matters that arose prior to the Petition Date and that arise after the Petition Date; d. to provide corporate information to LNBRB that may
be required to move the Debtors bankruptcy cases forward; and e. to perform in K&Es any other services of which the may be as
8 appropriate 9 special 10 cases. 11 10. 12 13 14 15 16 17 18 19 20 21 22 23 24 relationships, and various other factors, including those stated 25 above. 26 27 4 services in which rates are driven by multiple factors relating to the individual lawyer, his or her area of specialization, the firms expertise, performance, and reputation, the nature of the work involved, and other factors. A copy of K&Es general firm Because K&E operates in a national marketplace for legal corporate counsel during the Debtors bankruptcy representation Debtors
resume is attached as Exhibit 2 to this declaration.
the sub-markets for legal services are fragmented and are affected by a variety of individualized and interdependent factors, K&E has no one rate for an individual biller that applies to all matters for all clients. K&Es rates for an
individual biller may vary as a function of the type of matter, geographic factors, the nature of certain long term client
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11.
K&Es hourly rates are set at a level designed to
compensate K&E fairly for the work of its attorneys and paralegals and to cover fixed and routine overhead expenses. Hourly rates vary with the experience and seniority of the individuals assigned. These hourly rates are subject to periodic
adjustments to reflect economic and other conditions and are consistent with the rates charged elsewhere. In particular,
8 K&Es current hourly rates for matters related to these chapter 9 11 cases range as follows: 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 incurred except for representation of that particular client. 26 27 5 It 12. Billing Category Partners Associates Paraprofessionals Range $550-$995 $320-$660 $155-$280
The following professionals presently are expected to
have primary responsibility for providing services to the Debtors: Jason Osborn ($590) and Ryan Bennett ($690). In
addition, as necessary, other K&E professionals and paraprofessionals will provide services to the Debtors. Copies
of the professional rsums for the foregoing professionals are attached as Exhibit 3 to this declaration. 13. It is K&Es policy to charge its clients in all areas
of practice for identifiable, non overhead expenses incurred in connection with the clients case that would not have been
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is also K&Es policy to charge its clients only the amount actually incurred by K&E in connection with such items. of such expenses include postage, overnight mail, courier delivery, transportation, overtime expenses, computer-assisted legal research, photocopying, outgoing facsimile transmissions, airfare, meals, and lodging. 14. To ensure compliance with all applicable deadlines in Examples
8 these chapter 11 cases, from time to time K&E may utilize the 9 services of overtime secretaries. 10 also may charge their overtime meals and overtime transportation 11 to the Debtors consistent with pre-petition practices. 12 13 14 15 16 17 18 19 20 21 22 23 24 approval and in compliance with applicable provisions of the 25 Bankruptcy Code, the Bankruptcy Rules, the Local Bankruptcy 26 27 6 15. K&E currently charges $0.15 per page for standard K&E does not K&E has In addition, K&E professionals
duplication in its offices in the United States. charge its clients for facsimile transmissions.
negotiated a discounted rate for Westlaw computer-assisted legal research. Computer-assisted legal research is used whenever the
researcher determines that using Westlaw is more cost effective than using traditional (non-computer-assisted legal research) techniques. 16. K&E intends to apply for compensation for professional
services rendered and reimbursement of expenses incurred in connection with these chapter 11 cases, subject to the Courts
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Rules, the Guidelines of the Office of the United States Trustee, and any other applicable procedures and orders of the Court, on an hourly basis. 17. During the one-year period prior to the Petition Date,
the Debtors paid the total sum of $369,588.02 to K&E, including a retainer in the amount of $50,000 (the Retainer). As of the
Petition Date, the balance of the Retainer was approximately 8 $45,000. 9 payments was the Debtors funds. 10 No Adverse Interest 11 18. 12 Debtors in these chapter 11 cases, K&E undertook to determine 13 14 15 16 17 18 19 20 21 22 23 24 25 able to ascertain that K&E has been retained within the last 26 27 7 whether it had any conflicts or other relationships that might cause it to hold or represent an interest adverse to the Debtors with respect to the scope of K&Es proposed services as special corporate counsel. Specifically, K&E obtained from the Debtors In connection with its proposed retention by the The Debtors advised K&E that the source of these
and/or their representatives the names of individuals and entities that may be parties in interest in these chapter 11 cases (the Potential Parties in Interest), and such Potential Parties in Interest are listed on Exhibit 4 to this declaration. 19. K&E has searched on its electronic database for its
connections to the entities, and to the extent that I have been
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three years to represent any of the Potential Parties in Interest (or their affiliates, as the case may be) in matters unrelated to these cases, such facts are disclosed on Exhibit 5 attached hereto. Although not relevant in concluding that K&E has no
adverse interest to the Debtors with respect to K&Es role as special corporate counsel, out of an abundance of caution, listed on Exhibit 5 to this declaration are the results of K&Es
8 9
conflicts searches of the above-listed entities.1 20. K&E and certain of its partners and associates may have
10 in the past represented, may currently represent, and likely in 11 the future will represent, parties in interest in these 12 13 14 15 16 17 18 19 20 21
1
chapter 11 cases in connection with matters unrelated (except as otherwise disclosed herein) to the Debtors and these chapter 11 cases. K&E has searched on its electronic database for its
connection to the entities listed on Exhibit 4 attached hereto. The information listed on Exhibit 4 may have changed without our knowledge and may change during the pendency of these chapter 11 cases. Accordingly, K&E will update this declaration as
necessary and when K&E becomes aware of additional material

As referenced in Exhibit 5, the term current client means a client to whom time was posted in the 12 months preceding the Petition Date. As referenced in Exhibit 5, the term former client means a client to whom time was posted between 12 and 36 months preceding the Petition Date. As referenced in Exhibit 5, the term closed client means a client to whom time was posted in the 36 months preceding the Petition Date, but for which the client representation has been closed. As a general matter, K&E discloses connections with former clients or closed clients for whom time was posted in the last 36 months, but does not disclose connections if time was billed more than 36 months before the Petition Date.
22 23 24 25 26 27
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information. has searched: Exhibit 4(a) 4(b) 4(c) 4(d) 4(e) 4(f) 4(g) 4(h) 4(i) 4(j) 4(k)
The following is a list of the categories that K&E
Category Current and Recent Former Debtor Affiliates Current and Recent Former Directors and Officers Equity Holders Insurers Landlords Litigation Parties Professionals Purchaser Secured Lenders Top 20 Unsecured Creditors United States Trustee and Court Personnel for the Central District of California Based on the conflicts search conducted to date and
21. 12 13 14 15 16 17 18 19 20 21 22 23 24 25
described herein, to the best of my knowledge, neither I, K&E, nor any partner or associate thereof, insofar as I have been able to ascertain, have any connection with the Debtors, its creditors, or any other parties in interest, their respective attorneys and accountants, the Office of the United States Trustee for the Central District of California (the U.S. Trustee), or any person employed in the Office of the U.S. Trustee, any Bankruptcy Judge currently serving on the United States Bankruptcy Court for the Central District of California, except as disclosed or otherwise described herein. 22. K&E will review its files periodically during the
pendency of these chapter 11 cases to ensure that no conflicts or other disqualifying circumstances exist or arise. If any new
26 27 9
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relevant facts or relationships are discovered or arise, K&E will use reasonable efforts to identify such further developments and will file promptly a supplemental declaration, as required by Bankruptcy Rule 2014(a). 23. Generally, it is K&Es policy to disclose clients in For
the capacity that they first appear in a conflicts search. example, if a client already has been disclosed in this
8 declaration in one capacity (e.g., a customer), and the client 9 appears in a subsequent conflicts search in a different capacity 10 (e.g., a vendor), K&E does not disclose the same client again in 11 supplemental declarations, unless the circumstances are such in 12 13 14 15 16 17 18 19 20 21 22 23 24 25 equity security holders, or other parties in interest in ongoing 26 27 10 26. the latter capacity that additional disclosure is required. 24. From time to time, K&E has referred work to other
professionals to be retained in these chapter 11 cases. Likewise, certain such professionals have referred work to K&E. 25. clients. Certain insurance companies pay the legal bills of K&E Some of these insurance companies may be involved in None of these insurance companies,
these chapter 11 cases.
however, are K&E clients as a result of the fact that they pay legal fees on behalf of K&E clients. Specific Disclosures As specifically set forth below and in the attached
exhibits, K&E represents certain of the Debtors creditors,
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matters unrelated to the Debtors proposed engagement of K&E as special corporate counsel. Indeed, none of the representations
described herein are materially adverse to the interests of the Debtors estates. A. Equity Security Holder Relationships. 27. As disclosed in Exhibit 5 attached hereto, K&E
currently represents, and formerly has represented, certain 8 equity security holders of the Debtors. 9 below, all prior and current K&E representations of these equity 10 security holders have been in matters unrelated to the Debtors 11 and these chapter 11 cases. 12 13 14 15 16 17 18 19 20 21 22 23 24 caution. 25 Debtors and Parthenon with respect to K&Es role as special 26 27 11 If a matter arises that creates adversity between the 28. K&E currently or has formerly represented Parthenon Except as set forth
Capital and its affiliated funds (Parthenon) in matters that do not create an adverse interest between K&E and the Debtors with regards to K&Es proposed role as special corporate counsel to the Debtors. Parthenon is the portfolio parent of the Debtors.
Pursuant to the terms of the Engagement Letter, the Debtors have provided a waiver with respect to K&Es representation of Parthenon in matters unrelated to K&Es proposed role as special corporate counsel to the Debtors. K&Es representation of
Parthenon does not constitute a conflict of interest in these chapter 11 cases, but K&E has disclosed it out of an abundance of
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corporate counsel to the Debtors, the Debtors will use LNBRB for such matter. B. Connections to Significant Counterparties. 29. K&E represents Madison Dearborn Partners (Madison
Dearborn) in matters unrelated to the Debtors and these chapter 11 cases. K&Es representations of Madison Dearborn accounted
for 1.05% of K&Es fee receipts for the twelve month period 8 ending April 30, 2010. 9 of VWR International, one of the Debtors 20 largest unsecured 10 creditors. 11 with these chapter 11 cases. 12 13 14 15 16 17 18 19 20 21 22 23 24 has not represented and will not represent any such professionals 25 26 27 12 representation of Madison Dearborn presents a conflict, but has disclosed it out an abundance of caution. C. Relationships with Other Professionals. 30. As disclosed in Exhibit 5 attached hereto, K&E K&E does not believe that its K&E will not represent Madison Dearborn in connection Madison Dearborn is the portfolio parent
currently represents, and formerly has represented, certain affiliates, subsidiaries, and entities associated with various professionals that the Debtors seek to retain in connection with these chapter 11 cases. All prior and current K&E
representations of these professionals have been in matters unrelated to the Debtors, these chapter 11 cases, and K&Es proposed role as special corporate counsel to the Debtors. K&E
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in connection with any matter in these chapter 11 cases or K&Es proposed role as special corporate counsel to the Debtors. D. K&E Attorney and Employee Investments. 31. From time to time, K&E partners, of counsel,
associates, and employees personally invest in mutual funds, retirement funds, private equity funds, venture capital funds, hedge funds, and other types of investment funds (the Investment
8 Funds), through which such individuals indirectly acquire a debt 9 or equity security of many companies, one of which may be the 10 Debtors, often without K&Es knowledge. 11 person(s) generally own substantially less than 1% of such 12 13 14 15 16 17 18 19 20 21 22 23 24 Such Passive-Intermediary Entity is composed only of persons who 25 were K&E partners and of counsel at the time of the Passive26 27 13 Investment Fund, do not manage or otherwise control such Investment Fund, and have no influence over the Investment Funds decision to buy, sell, or vote any particular security. The The investing K&E
Investment Fund is generally operated as a blind pool, meaning that when the K&E person(s) make an investment in the Investment Fund, he, she, or they do not know what securities the blind pool Investment Fund will purchase or sell, and have no control over such purchases or sales. 32. From time to time one or more K&E partners and of
counsel voluntarily choose to form an entity (a PassiveIntermediary Entity) to invest in one or more Investment Funds.
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Intermediary Entitys formation (although some are now former K&E partners and of counsel). Participation in such a Passive-
Intermediary Entity is wholly voluntary and only a portion of K&Es partners and of counsel choose to participate. The
Passive-Intermediary Entity generally owns substantially less than 1% of any such Investment Fund, does not manage or otherwise control such Investment Fund, and has no influence over the
8 Investment Funds decision to buy, sell, or vote any particular 9 security. Each Investment Fund in which a Passive-Intermediary 10 Entity invests is operated as a blind pool, so that the 11 Passive-Intermediary Entity does not know what securities the 12 13 14 15 16 17 18 19 20 21 22 23 24 equity security of a company which may be the Debtors. K&E has a 25 long-standing policy prohibiting attorneys and employees from 26 27 14 blind pool Investment Funds will purchase or sell, and has no control over such purchases or sales. And, indeed, the
Passive-Intermediary Entity often arranges for statements and communications from the Investment Funds to be sent solely to a blind administrator who edits out all information regarding the identity of the Investment Funds underlying investments, so that the Passive-Intermediary Entity does not learn (even after the fact) identity of the securities purchased, sold, or held by the Investment Fund. 33. From time to time, K&E partners, of counsel,
associates, and employees personally directly acquire a debt or
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using confidential information that may come to their attention in the course of their work. In this regard, all K&E attorneys
and employees are barred from trading in securities with respect to which they possess confidential information. E. Other Disclosures 34. Intercompany Relationships. Certain interrelationships
exist among the Debtor entities. 8
Nevertheless, the Debtors have
advised K&E that the Debtors entities relationships to each 9 other do not pose any conflict of interest because of the general 10 unity of interest among the Debtor entities. 11 been able to ascertain, I know of no conflict of interest that 12 13 14 15 16 17 18 19 20 21 22 23 24 employed by K&E between 1986 and 1999, and Mr. Tresnowski briefly 25 returned to K&E for a period of time in 2004. 26 27 15 As noted above, would preclude K&Es joint representation of the Debtors in these chapter 11 cases. 35. Ethical Wall. Prior to joining the firm, K&E partner Insofar as I have
Albert Cho represented numerous clients adverse to K&Es current and former restructuring clients, including debtors in chapter 11. Out of an abundance of caution, K&E has instituted formal
screening procedures to screen Mr. Cho from all K&E restructuring matters. 36. Former Employee Relationship. A former K&E partner,
Mark Tresnowski, is currently Managing Director and General Counsel of Madison Dearborn. Mr. Tresnowski was previously
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Madison Dearborn is the portfolio parent of VWR International, one of the Debtors 20 largest unsecured creditors. Mr. Tresnowskis work at K&E was unrelated to the Debtors or these chapter 11 cases, but K&E has disclosed it out of an abundance of caution. 37. Outside Director Relationship. George Stamas, a
partner with K&E in its Washington, D.C. office, is an outside 8 director of FTI Consulting, Inc. ("FTI"), a New York stock 9 exchange listed company and restructuring advisors to the 10 Debtors. 11 minimis percentage (less than 1/10 of one percent) of the 12 13 14 15 16 17 18 19 20 21 22 23 24 K&Es representation of the Debtors in a manner that avoids 25 contact with the screened K&E attorneys; (c) to take all measures 26 27 16 company's ownership. This includes 4,938 shares of FTI's common Mr. Stamas owns 12,357 shares of FTI, which is a de
stock over which Mr. Stamas and his spouse share voting and investment power and 7,419 shares of FTI's common stock issuable upon exercise of stock options. Mr. Stamas will have no role in
the representation of the Debtors in these chapter 11 cases. 38. K&E Screening Procedures. Under K&Es screening
procedures, K&Es conflicts department distributes a memorandum to all K&E attorneys and legal assistants directing them as follows: (a) not to discuss any aspects of K&Es representation
of the Debtors with the screened K&E attorneys; (b) to conduct meetings, phone conferences, and other communications regarding
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necessary or appropriate to prevent access by the screened K&E attorneys to the files or other information related to K&Es representation of the Debtors; and (d) to avoid contact between the screened K&E attorneys and all K&E personnel working on the representation of the Debtors unless there is a clear understanding that there will be no discussion of any aspects of K&E's representation of the Debtors. Furthermore, K&E already
8 has implemented procedures to block the screened K&E attorneys 9 from accessing files and documents related to the Debtors that 10 are stored in K&Es electronic document managing system. 11 39. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 17 not hold or represent an interest adverse to the scope of its proposed retention as the Debtors special corporate counsel. Accordingly, and to the best of my knowledge, K&E does
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I declare under penalty of perjury that the foregoing is true and correct. Executed this 20th day of May 2010, at Chicago, Illinois. _/s/ Ryan Bennett__________ RYAN BENNETT
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EXHIBIT 1 Engagement Letter
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EXHIBIT 2 General Firm Resume
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Firmwide Introduction
Founded more than 100 years ago, Kirkland & Ellis has been called upon to handle complicated corporate, litigation, intellectual property, restructuring, tax and counseling matters for global clients. Today, Kirkland continues to work with a long-standing base of clients engaged in industries as varied as manufacturing, transportation, telecommunications, private equity, pharmaceutical, technology, energy, health care, real estate, chemicals, food products, finance, insurance, e-commerce, advertising, sales and marketing, and accounting. In every year since 1995, Kirkland has ranked as one of the most frequently used firms by Fortune 100 companies in The National Law Journal survey, Who Represents Corporate America. In recognition of the Firms superior service across practice areas, Chambers & Partners, a respected international rating firm, named Kirkland the 2006 USA Law Firm of the Year.
Representative Clients
3M The AES Corporation Abbott Laboratories Agere Systems Alcon Laboratories Alpharma Amazon.com, Inc. Aon Corporation Apple B. Braun Medical BP America Inc. Bain Capital Bank of America Barr Laboratories Biomet Boehringer Ingelheim Boeing Boston Scientific Calpine Corporation CIVC Partners Code Hennessy & Simmons Constellation Energy Collins & Aikman DIRECTV Dow Chemical Ernst & Young Forstmann Little GTCR General Motors Golden Gate Capital Gryphon Investors Honeywell International Infineon Technologies AG International Game Technology Kellogg Company Konica Minolta Group Kraft Lucent Technologies Madison Dearborn Partners MidOcean Partners Molson Coors Brewing Company Morgan Stanley Motorola NRG Energy Nationwide Insurance Oaktree Capital Oracle PricewaterhouseCoopers R.J. Reynolds Tobacco Company Raytheon Repsol YPF S.A. S.C. Johnson & Son Samsung Sara Lee Schering-Plough ServiceMaster Siemens Solutia Starwood Hotels & Resorts Worldwide Sun Capital Partners Tenet Healthcare Terra Industries Time Warner United Airlines Verizon Vestar Capital Partners William Blair & Company Willis Stein & Partners
Chicago
Hong Kong
London
Los Angeles
Munich
New York
Palo Alto
San Francisco
Shanghai
Washington D.C.
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Corporate
Kirklands corporate practice covers the full spectrum of corporate transactions important to businesses in todays global marketplace and is known for its ability to negotiate and close highly sophisticated transactions. Kirklands extensive experience in the areas of private equity, finance, real estate, tax, labor and ERISA, environmental and intellectual property law, among other specialty areas, gives the Firm an aptitude for developing novel, creative and constructive solutions to assist its corporate clients myriad transactional needs. Kirkland is consistently ranked as one of the law firms most often selected to represent public and private companies and private equity investors. Called a leading light in the buyout arena by Chambers & Partners in 2008, Kirkland received top tier ratings for both Private Equity and Fund Formation in the United States in Chambers Global 2008. For the past several years, Kirkland has been ranked as the top law firm by number of private equity transactions in Mergermarkets annual league tables. Kirkland also ranks as the top law firm representing borrowers in both leveraged and M&A loan transactions in Reuters Loan Pricing Corporations 2008 league tables. The following are a few significant matters handled by our corporate group. Kirkland represented: Clearwire Corporation in its $14.5 billion joint venture with Sprint Nextel Corporation to combine the companies WiMAX businesses in 2008. Madison Dearborn Partners, LLC in its $7.3 billion leveraged buyout of CDW Corporation in 2007. Dade Behring Holdings, Inc. in its $7.0 billion sale to Siemens Medical Solutions in 2007. Community Health Systems, Inc. in its $6.8 billion acquisition of Triad Hospitals, Inc. in 2007. Molson Coors Brewing Company in its $6.6 billion joint venture with Miller Brewing Company, forming MillerCoors LLC, in 2008. NRG Energy in connection with Exelon Corporations approximately $6.2 billion unsolicited bid for the company (pending). Management of The ServiceMaster Company in its $5.5 billion leveraged buyout by Clayton, Dubilier & Rice in 2007. Constellation Energy Group in the $4.5 billion sale of half of its nuclear power business to EdF Development (pending). Bain Capital, LLC in its R25 billion leveraged buyout of Edgars Consolidated Stores, Ltd. in 2007. Apax Partners, Barclays Capital and The Tchenguiz Group, as part of a private equity consortium, in their 1.6 billion sale of Somerfield to The Co-operative Group in 2009.
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Litigation
Kirkland has earned a reputation as trial lawyers (not just litigators) by successfully representing companies involved in business-critical lawsuits and class actions in such diverse legal areas as securities, defamation, antitrust, mass torts, product liability, insurance coverage, construction, environmental and commercial, handling the trial, appellate and Supreme Court phases. This trial-ready reputation has been the impetus for favorable and prompt results for our clients through settlements, as well as the various alternative dispute resolution mechanisms we employ whenever practicable and desired by the client. Kirkland was chosen as The American Lawyers 2008 Litigation Department of the Year. According to the publication, What sets Kirkland apart and the reason the firm is this years winner is the number of high-stakes, high-impact trials its lawyers have won since the start of 2006. Kirkland tried 30 cases to verdict, winning more significant trials than any other firm in our contest. Kirkland was also chosen as a finalist for this award in The American Lawyers 2010 survey. In 2009, Kirkland was named a go-to firm for litigation in the Corporate Counsel survey, Who Represents Americas Biggest Companies? for the eighth consecutive year. The following matters highlight the diversity of cases and challenges faced by the Firms litigation practice: Kirkland successfully defended Honeywell International Inc. in a case brought against its predecessor, AlliedSignal, by Breed Technologies Inc. The dispute arose from Breeds 1997 purchase of a safety restraint business from AlliedSignal. Breed claimed that AlliedSignal had misrepresented the fiscal health of the division, and that its subsequent underperformance was to blame for Breeds current financial woes. Breed sought hundreds of millions of dollars plus punitive damages in the civil suit, accusing AlliedSignal of fraud, misrepresentation and fraudulent transfer. The suit was filed and tried near Breeds base of operations. Faced with the difficulty of representing a large corporate client against a major hometown employer, Kirkland decided on a strategy that would put a human face on AlliedSignal and present the case as clearly as possible, helping the jury keep its focus on the facts. Kirkland represented Buckeye Check Cashing Co. at the U.S. Supreme Court in a case related to the enforceability of an arbitration clause under the Federal Arbitration Act. Three months after oral arguments, the Court ruled in favor of Buckeye and reversed an adverse Florida Supreme Court decision. Kirkland obtained a $147 million jury verdict on behalf of SC Johnson in Wisconsin State Court. After a four-week trial, the jury found that eight defendants had conspired to commit fraud and engaged in racketeering activity in connection with transportation services that had been provided to SC Johnson since 1997. SC Johnson had been seeking a $101 million in damages. Under Wisconsin racketeering law, this verdict is automatically doubled. This is the largest jury verdict in Wisconsin history. Kirkland successfully defended NL Industries in the second-ever personal injury trial against a former lead paint manufacturer. Plaintiffs alleged that brain damage, an increased risk of cardiovascular and kidney disease, as well as peripheral neuropathy, were the byproducts of lead poisoning at the hands of NL Industries lead paint in their Jackson, Mississippi
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apartments. Plaintiffs sought more than $125 million in damages. A federal jury returned a unanimous verdict for NL Industries, rejecting plaintiffs negligence claims and awarding no damages. Kirkland obtained a significant trial victory for Price Waterhouse LLP in an accountant liability case brought by Arlin Adams, Trustee for Coram Healthcare Corporation. The plaintiff asserted accounting negligence claims against Price Waterhouse and sought damages in excess of $300 million, claiming Price Waterhouse auditors failed to detect a significant overstatement in assets, which led to a disputed sales transaction with Coram. Within hours of closing arguments, the jury returned a complete defense verdict. Plaintiff Boca Raton Community Hospital, Inc. brought claims under the federal RICO statute and Californias unfair competition law alleging that Kirkland client Tenet hospitals, through their charging practices, received too many outlier payments from Medicare, and thereby stole outlier payments from the plaintiff and other hospitals. The U.S. District Court for the Southern District of Florida denied the plaintiffs motion to certify a nationwide class of acute care hospitals. The plaintiff sought to appeal the District Courts ruling to the U.S. Court of Appeals for the Eleventh Circuit, but was denied. Kirkland represented General Motors against claims by the United Auto Workers and retirees in response to GMs announcement that, due to its financial challenges, it was going to reduce its retiree health care obligations. Kirkland helped GM reach a settlement with the plaintiffs and withstand a challenge to the settlement in the U.S. District Court of the Eastern District of Michigan. The court approved the settlement, enabling GM to reduce its harddollar retiree health care obligations by in excess of $15 billion in total. Kirkland secured a major victory for Morgan Stanley in an arbitration against Sears, Roebuck & Co. The dispute centered around the allocation of tax refunds and liabilities under a tax sharing agreement entered into between Sears and Dean Witter, one of Morgan Stanleys predecessor companies. At arbitration, the panel of three former federal judges ruled in favor of Morgan Stanley and awarded it damages of roughly $20 million. Sears filed a post-hearing application to reverse the award, which the panel denied. Sears then filed a motion to vacate the panels award, which was rejected by the New York Supreme Court. A federal judge ruled in favor of Kirkland client Nationwide Mutual Insurance Company in the first Hurricane Katrina insurance coverage case to go to trial. The U.S. District Court for the Southern District of Mississippi upheld the validity and enforceability of the water damage exclusion in Nationwides homeowners insurance policy and ruled that Nationwide was not obligated to pay for any storm surge damage to the property of plaintiffs, who were Pascagoula, Mississippi residents. Kirkland recognizes the terrible hardships inflicted by Hurricane Katrina and has made substantial contributions to the victims recovery efforts, including pro bono service and monetary aid. After hearing seven weeks of testimony and deliberating for three days, a New Jersey jury decided that Lyondell Chemical Company must pay Kirkland client BASF $170 million due to overcharging BASF for propylene oxide, a chemical used in products ranging from mattresses to gym floors, over a period of eight years. Throughout the case, Lyondell denied
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any liability. BASF sought damages between $110 million and $286 million. The jury ultimately awarded damages of $170 million. Kirkland successfully defended Abbott Laboratories against a class action lawsuit alleging that the weight-loss drug Meridia caused increases in blood pressure, strokes, heart attacks and other injuries. Focusing on key weaknesses in the plaintiffs claim, Kirkland pushed for an early and comprehensive resolution of the key causation issues in the case. Abbott was granted summary judgment on all of the plaintiffs claims, and the decision was affirmed on appeal. The Firm handled Chiquitas libel and slander claims against the Gannett Company, Inc. and The Cincinnati Enquirer, which resulted in repeated front-page apologies to Chiquita, the payment of more than $10 million in damages and termination of the investigative reporter in charge of the story.
Intellectual Property
Our lawyers are recognized for their ability to understand the value, nature and importance of all forms of intellectual property rights and how those rights impact the businesses of our clients. In Chambers Global 2010, Kirkland was listed as a first-tier firm for the fifth consecutive year in the area of intellectual property. In the September 2009 IP Law & Business survey, A Little Less Buzz, Kirkland placed first for the most defense cases filed and second for total district court cases filed in 2008. And, in June 2009, the group was honored with the Award for Excellence in IP Litigation from international legal rating firm Chambers & Partners. Chambers said, The huge commitment [Kirkland] has made to its national IP litigation practice is very much in evidence. The following are cases exemplifying Kirklands intellectual property litigation capabilities. Kirkland represents The Associated Press in the highly publicized declaratory judgment suit brought by graphic artist and merchandiser Shepard Fairey arising out of Mr. Faireys unauthorized use of the APs photo of President Barack Obama to create a poster and related commercial merchandise, including t-shirts, sweatshirts and tote bags. In January 2010, Fairey was denied a motion for a protective order postponing his deposition pending the outcome of an investigation by the U.S. Attorneys Office into Faireys admitted spoliation and fabrication in the case. Fairey was also denied of his request to seal the courtroom during the hearing on Faireys motion, which led to the first public disclosure of the fact that Faireys admitted conduct was the subject of a criminal investigation. In a case watched closely by the pharmaceutical industry, a Kirkland-led team secured victories for client Amgen and affiliated companies at both the trial and appellate levels in a case involving a patent on the intracellular transcription factor NF-B. Amgen and affiliated companies filed suit against ARIAD in 2006, seeking a declaratory judgment that Amgens ENBREL (etanercept), FDA-approved to treat rheumatoid arthritis, psoriasis, ankylosing spondylitis, psoriatic arthritis, and juvenile rheumatoid arthritis, did not infringe U.S. Patent No. 6,410,516, and that the patent was invalid and unenforceable. Kirkland secured a victory in 2008 in the District of Delaware, in which the Court held on summary judgment that Enbrel did not infringe ARIADs patent. In June 2009, Kirkland argued the appeal before the
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U.S. Court of Appeals for the Federal Circuit, and the Court of Appeals affirmed the trial courts ruling. In January 2009, a team of Kirkland lawyers won a hard-fought victory for Limelight Networks. The case was tried to a 10-person jury before recently appointed Judge Mark Davis. Level 3 had filed the case in December 2007, asserting that Limelight, the secondlargest content delivery service provider in the world, infringed more than 200 claims in three patents. Kirkland succeeded in knocking out one of the three patents before trial, but two patents remained. The jury returned a verdict that found that those patents did not cover any services Limelight provides. The verdict eliminated the threat of an injunction and the more than $100 million in past damages Level 3 sought. Kirkland represents Cisco Systems, Inc., Scientific-Atlanta, Inc., Motorola, Inc., Thomson, Inc., NETGEAR, Inc., and Ambit Microsystems -- major manufacturers of cable modems and cable modem termination systems used for high speed Internet -- in an antitrust, unfair competition and declaratory judgment patent action against Rembrandt. In more than a dozen different lawsuits spanning Texas, New York and Delaware, Rembrandt alleged that the entire cable industry infringed eight patents Rembrandt acquired from Paradyne. The matters against our clients customers were consolidated as MDL proceedings in the U.S. District Court for the District of Delaware, where our clients then sued Rembrandt. In August 2009, after discovery finished and the Delaware Court had granted our clients requests for permission to file summary judgment and sanctions motions against Rembrandt, Rembrandt moved to dismiss all of its lawsuits against our clients and the cable industry and granted Kirklands clients and their customers covenants not to sue any of their current or former products or services under the eight patents. We obtained a supplemental covenant not to sue that broadened the scope of the covenant, and the case was in turn dismissed. Our clients are now pursuing a motion for an exceptional case attorneys fees award against Rembrandt. In October 2008, the Court of Appeals for the Federal Circuit for issued a decision in favor of our clients Motorola and Samsung. Broadcom filed a patent infringement action against Qualcomm at the International Trade Commission, alleging that Qualcomm induced infringement of the Broadcom patents by selling semiconductor chips to cell phone manufacturers, including Motorola and Samsung, and that the cell phone manufacturers were direct infringers. The Initial Determination at the ITC found that Broadcoms patents were both valid and infringed, but the judge refused to provide Broadcom with a downstream product exclusion order covering the Samsung or Motorola phones. Later, the full ITC reversed the ALJ finding and imposed a broad LEO that included downstream product relief and that would have barred our clients from importing cell phones with the infringing Qualcomm chips. Before the Order could go into effect, Kirkland successfully obtained a stay of the LEO from the Federal Circuit. The Federal Circuit then issued its decision on the merits, reversing the ITC and securing a complete victory for our clients. In September 2007, Kirkland won the battle for Biedermann Motech with a favorable federal jury verdict. Concluding that Medtronic Sofamor Danek infringed, the jury ordered it to pay $226.3 million to Biedermann and Johnson & Johnsons DePuy unit. The suit was first filed in 2001 by Biedermann and Johnson & Johnson, and involves Medtronics Vertex screw which is used to correct spinal defects. The verdict was reportedly the largest jury award in
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Massachusetts history. Following the trial, the court entered a permanent injunction against Medtronic and later sanctioned Medtronic in the amount of $10 million plus part of plaintiffs attorneys fees for litigation misconduct. Kirkland lawyers successfully represented Dr. David Goldfarb and medical device manufacturer C.R. Bard in the latest chapter in their 36-year patent dispute against W.L. Gore & Associates, Inc. After 28 years of litigation, the PTO awarded the patent related to vascular grafts made from expanded Teflon to Dr. Goldfarb in 2002. During that time Bard took an exclusive license from Dr. Goldfarb and became involved in the interference. Following the issuance of the patent to Dr. Goldfarb, Gore refused to pay to license the technology from Bard and claimed that the patent it had sought for 28 years was invalid and not infringed. Dr. Goldfarb and Bard sued for patent infringement in 2003. Four years later, a jury found that Gore had willfully infringed and awarded damages of $185 million. Kirkland represented Bard during the post-trial motions before the U.S. District Court for the District of Arizona in 2009. Gores motion for a new trial and its claim that the jury award was excessive and contradictory to the evidence were denied and the court doubled the damages plus attorneys fees and pre-judgment interest. In 2009, Kirkland obtained the dismissal of W.L. Gores appeal to the U.S. Court of Appeals for the Federal Circuit after Bard won its patent infringement case (and a verdict and enhanced damages of hundreds of millions), W.L. Gore attempted to take an interlocutory appeal under 28 U.S.C. 1292(c)(2), while a post-trial motion for a compulsory license was still pending. The Federal Circuit dismissed the appeal in its entirety. Kirkland won more than $580 million in compensatory and punitive damages for clients Karlin Technology and Dr. Gary K. Michelson against Memphis-based Medtronic Sofamor Danek. The federal court jury in Memphis, Tennessee, found that Medtronic Sofamor Danek materially breached purchase and license agreements between the parties, engaged in wrongful conduct, infringed the six asserted patents owned by Dr. Michelson, and intentionally underpaid royalties. The case settled for $1.35 billion. In October 2007, a preliminary injunction was granted in favor of Kirkland client GlaxoSmithKline, enjoining the PTOs sweeping changes to the regulations governing patent prosecution from going into effect on November 1, 2007. The rule changes would have drastically altered prosecution practice, including limiting the number of continuing applications and requests for continued examination and the number of claims an applicant can seek. Shortly after hearing argument on the familiar preliminary injunction factors, the court granted GSK its requested relief from the bench enjoining the rules until final resolution on the merits. In the opinion, the court found that all four factors favored granting the preliminary injunction and denied the PTOs motion to strike. Kirklands intellectual property transactional lawyers have been involved in many transactions of major significance. Kirklands experience includes acting for clients in the following matters: Assisted service provider with a 10-year business process outsourcing transaction. According to the terms of the deal, the client, as a subcontractor, will provide customer contact services, sales services and billing and remittance activities to a large U.S. utility company. This is the client's first deal in the United States.
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Kirkland represented the world's largest derivatives exchange operator, CME Group Inc., in a transaction in which CME will acquire a 90 percent stake in the Dow Jones indexes business valued at $675 million. The transaction also involved the contribution by CME of a $600 million market data business to the joint venture, resulting in an overall valuation of more than $1.2 billion. The venture creates and licenses more than 130,000 indexes that investors and analysts use to measure the performance of such markets as stocks, bonds and real estate. Kirkland represented a leading wireless and wireline communications service provider in Virginia, West Virginia and other states, in connection with an outsourcing and resale agreement valued at approximately $1 billion. Kirkland has represented Sun Microsystems in a number of outsourcings, including a worldwide outsourcing of logistics functions to DHL and a worldwide outsourcing of real estate and project management covering Suns real estate portfolio in more than 70 countries. Kirkland represented an energy firm with more than a million residential, commercial and industrial natural gas customers, in a multiyear BPO and technology enhancement services agreement. It was projected that this transaction will result in savings of approximately $170 million over the 10-year term for our client. The Firm represented a major automotive manufacturer in the development of its form agreements for all types of IT outsourcing and the negotiation of agreements for several such transactions, including two of the largest outsourcing transactions in history. A Kirkland team represented Myogen, Inc. in its $2.5 billion acquisition by Gilead Sciences, Inc., a San Francisco-based biotechnology company. At the time of the transaction, Coloradobased Myogen did not have any drugs on the market, but had a well-regarded experimental drug in an advanced stage of development. The Firm represented a world-class entertainment and resort complex under construction in China, in connection with a joint venture and license agreement with a major U.S. brand. For a leading Internet research portal, Kirkland negotiated a multiyear, multimillion-dollar partnership with a major investment bank to co-develop global research and information systems for transmission of real-time investment strategy and securities research across multiple delivery platforms.
Restructuring
In the restructuring area, Kirkland provides a broad range of business advisory and crisis management skills with extensive experience in U.S. and international insolvency matters to navigate clients through the turmoil of situations involving financially troubled companies. In the 2008 and 2009 editions of Chambers Global, an independent review of international legal talent, Kirkland received a first-tier global ranking in the area of bankruptcy/restructuring. Additionally, in June 2008, Kirklands Restructuring Group was selected for an Award for Excellence by Chambers & Partners, a highly respected international rating firm, in the Bankruptcy Team category for providing superior service to its clients. Some of Kirklands recent headline-making representations include:
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Kirkland represented Calpine Corporation in its chapter 11 case. Calpine is the worlds largest producer of geothermal electricity, operates the largest fleet of natural gas-fired power plants in North America, and supplies approximately 3.5 percent of the electricity consumed in the United States. With more than 270 debtors and approximately $18 billion of funded debt, Calpines chapter 11 filing was the second largest case filed in 2005. Calpines restructuring involved the unique and complex intersection of bankruptcy, financing, energy, regulatory, labor and benefits, cross-border and other legal issues. Calpine emerged from bankruptcy in January 2008. Kirkland represented United Airlines and 27 of its affiliates and subsidiaries in its chapter 11 cases. These cases are among the largest ever filed, with assets and liabilities in excess of $20 billion. Kirkland attorneys assisted the company to restructure every aspect of its business, including its labor, retiree medical and pension costs, aircraft financing arrangements, airport and off airport leases, express carrier operations and thousands of supply contracts. United successfully emerged from bankruptcy in February 2006. Kirkland represented Sea Containers Ltd. and certain of its affiliates in its chapter 11 cases which were filed in October 2006. Sea Containers, a Bermuda company with headquarters in London, is a leading marine container leasing company that has engaged in a variety of other businesses, including passenger transport, container manufacturing and repairing facilities, fruit farming, and perishable freight forwarding and logistics. Kirkland represented Visteon Corporation, a Fortune 500 global automotive supplier that designs and manufactures climate, interior, electronic and lighting products for vehicle manufacturers, in its chapter 11 reorganization. Located in 27 countries, Visteon reported $9.5 billion in revenue in 2008 with approximately 31,000 employees. Kirkland represented Charter Communications, Inc., the fourth largest cable operator in the United States, with approximately $21.7 billion in debt, in its prearranged bankruptcy that reduced debt by approximately $8 billion. Kirkland represented Hawaiian Telcom Communications, Inc., the state of Hawaii's incumbent telecommunications provider, which filed for chapter 11 protection in December 2008. Hawaiian Telcom offers a variety of telecommunications products and services, including local and long distance services, managed services, highspeed Internet, and wireless services. Kirkland represented Tropicana Entertainment, LLC and 33 of its affiliated entities in their chapter 11 cases in the United States Bankruptcy Court for the District of Delaware. Tropicana and its non-debtor affiliates are a leading domestic casino operator, with approximately 540,000 square feet of gaming space and more than 8,300 hotel rooms, and employ more than 11,000 individuals on a full- or part-time basis. Tropicana and its nondebtor affiliates operate eleven casinos across five states, including the Tropicana Resort and Casino Las Vegas, located on the "Strip" in Las Vegas, Nevada, and the Tropicana in Atlantic City, New Jersey. Kirkland represented Masonite Corporation and its affiliates, one of the largest manufacturers of interior doors and entry door systems in the world with 11,000 employees and annual revenue of approximately $1.8 billion, in its chapter 11 cases. Masonite operates in 70 locations throughout North America, South America, Europe, and Asia.
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Kirkland represents Readers Digest Association, Inc., publisher of books, magazines, and entertainment products with more than 130 million customers in 78 countries, in its prearranged chapter 11 cases. Readers Digest has more than 3,000 employees and annual sales of approximately $2.2 billion. Kirkland represented Conseco, Inc. and certain of its subsidiaries in the seventh largest bankruptcy filing in history. Conseco operated in the heavily regulated finance, banking, and insurance industries. As part of the restructuring process, and after a lengthy and spirited auction, Kirkland gained court approval for Conseco to sell the assets of its finance subsidiaries for a cash purchase price of more than $1 billion (reportedly the largest ever cash sale in a chapter 11 case). Kirkland then went on to negotiate the restructuring of the remaining Conseco assets (comprised predominantly of Consecos insurance business), gaining confirmation of a plan of reorganization in just nine months.
Real Estate
Kirklands Real Estate Practice Group offers clients focused, multidisciplinary counsel on a wide range of real estate transactions. Kirklands ever-expanding real estate client base includes major corporations, real estate private equity funds, real estate operating companies, Real Estate Investment Trusts (REITs) and hotels. As an integrated part of the Firms renowned fund formation practice, the real estate practice regularly advises clients on cross-border and domestic real estate private equity investments and fund formations. The real estate practice served as counsel on the formation of LaSalle Asia Opportunity Fund III and Japan Logistics Fund II, real estate private equity investment funds with total capital commitments of over $3.5 billion. Kirkland also represented Red Fort Capital LLC in connection with the formation of Red Fort India Real Estate Fund I, a real estate private equity investment fund targeting investor commitments of $425 million focusing on the development of multi-family housing throughout India. Our fund formation experience also lends itself to advising on real estate operating company formations and investments including drafting and negotiation of joint ventures. We recently represented CenterPoint Properties Trust in the creation of two joint ventures between CenterPoint and Infinity Intermodal Services, LLC to acquire, develop and manage container storage facilities throughout the United States. While our hospitality practice focuses on hotel acquisitions and dispositions, development transactions and management agreements, it is also home to much of our joint venture activity. Kirkland represented Kimpton Hotels in connection with the formation of a joint venture with The John Buck Company for the acquisition and development of a high rise hotel in downtown Chicago, IL and Global Hyatt Corporation in formation of joint venture with affiliates of Goldman Sachs & Co., and the resulting joint venture in the $445 million acquisition from bankruptcy of Hyatt Regency Waikiki. Kirkland also represented Starwood Hotels & Resorts Worldwide, Inc. in connection with the formation of a strategic alliance with Istithmar Hotels, the hospitality investment arm of the Government of Dubai, and Jones Lang LaSalle Hotels to create a leasing vehicle to develop Starwood-branded hotels throughout Europe, covering more than 50 countries. Kirklands real estate practice maintains its relationships with its fund and real estate operating clients by skillfully handling their single asset and portfolio acquisitions and dispositions. Kirkland represented CenterPoint Properties Trust in the disposition of a premier portfolio of industrial buildings located at OHare International Airport to CalEast Air Cargo, LLC. We also represented Lazard Freres Strategic Real Estate Fund in $728 million sale of its portfolio company Intown Suites Management, Inc. and
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related portfolio of 125 extended stay hotels. Kirkland also represented a joint venture composed of affiliates of GEM Realty Capital and Whitehall Street Global Real Estate Limited Partnership 2005 in acquiring a majority interest in three Sofitel hotels located in Los Angeles, New York and Philadelphia, adding to a portfolio already including Sofitels located in the Chicago, Miami, Minneapolis, San Francisco and Washington, D.C., markets. On the corporate side of the real estate spectrum, Kirkland lawyers are skilled in all aspects of the representation of corporate real estate users. In addition to our participation in corporate acquisition and disposition transactions frequently involving multi-state real estate assets and related acquisition and financing issues, we are regularly involved in a wide variety of leasing, build-to-suit and other transactions for corporate real estate users of office, manufacturing and industrial properties. For example, Kirkland represents Whirlpool Corporation in conjunction with a structured build-to-suit program for multiple warehouse and distribution centers throughout the United States, Mexico and Canada.
Tax
Kirklands Tax Practice provides its clients the most creative tax planning available in a responsive and cost-efficient manner. Kirklands Tax Practice is divided broadly into two areas: (i) tax planning in connection with mergers, acquisitions, buyouts, restructurings, financings, executive compensation plans, and other sophisticated transactions; and (ii) contested tax matters. Kirklands goal in both types of matters is the same: to achieve the best possible tax results in the most efficient manner. Our tax practice has achieved national and international acclaim, and has been consistently ranked by Chambers USA and Chambers Global. Mergers and Acquisitions: Kirklands Tax Practice represents numerous corporations involved in acquisitions and divestitures, as well as private equity and investment banking firms. We are frequently involved in the formation and syndication of entities created to make capital investments in leveraged buyouts, start-up companies, workout transactions, real estate interests, or other types of transactions. Spin-Offs and Split-Offs: The Tax Practice has broad experience in advising on and effecting tax-free spin-offs and split-offs. Among successful representations are the multibillion-dollar split-offs of DirecTV, Delphi Corporation, Hughes Defense by General Motors. IRS Private Rulings: The Tax Practice has been very successful in recent years in obtaining IRS rulings for clients who desired certainty regarding the tax consequences of their transactions. For example, we have obtained favorable IRS rulings for United Airlines, Conseco, General Motors, Chicago Board of Trade, Bcom3, Pioneer Telephone, and KanOkla Telephone Association. Restructuring: Kirkland is one of the premier firms in the country in representing debtors in restructuring situations. The Tax Practice has represented many troubled companies or their creditors in planning the tax aspects of these restructurings. For example, the Tax Practice helped develop the restructuring plan for United Airlines, Calpine, Collins & Aikman, Charter Communications, Wellman, Movie Gallery, Solutia, Dura Automotive, Conseco, NRG Energy, TWA, Chiquita Brands, and AmeriServe.
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Contested Tax Matters: Kirkland has long had a nationwide reputation as a premier litigation law firm. The Tax Practice has enhanced that reputation by achieving a remarkable level of success in trying and winning complex and high-profile tax disputes. The Tax Practice has acted as lead counsel in recent tax disputes for companies such as United Airlines, AT&T, American Airlines, Qwest Communications, General Motors, Bayer, Pactiv, W.R. Grace and many others. Kirklands Tax Practice has always been diversified in the types of cases it handles, believing that the most sophisticated tax advice is based on a full understanding of applicable tax laws and the interaction and analogies that exist between different taxing schemes.
Office Locations
As client needs have expanded geographically, so has Kirkland, with approximately 1,500 lawyers in office locations throughout the United States in Chicago, Los Angeles, New York, Palo Alto, San Francisco, Washington, D.C., and abroad in Hong Kong, London, Munich and Shanghai. Chicago: Kirklands oldest and largest office is in Chicago, where approximately 650 lawyers provide a full spectrum of litigation, corporate, intellectual property, restructuring, real estate and tax services to publicly and privately held companies and financial service institutions. Hong Kong: Kirklands Hong Kong office is in the Gloucester Tower of The Landmark building, in the heart of Hong Kongs Central financial district. The Hong Kong team, consisting of 10 attorneys, concentrates in the Firms internationally recognized private equity and mergers and acquisitions practice in Greater China and the rest of Asia. London: The London office assists international clients with their U.S. operations and investments and helps U.S.-based clients in European transactions. Kirklands London office has approximately 80 lawyers practicing U.S., English and international law. The office is active in cross-border transactions, private equity, international arbitration and litigation, intellectual property, corporate restructuring and insolvency, and tax. Los Angeles: Kirklands Los Angeles office was established to meet the legal service needs of the Firms national and international clients on the West Coast. Today, Kirklands Los Angeles office has approximately 75 lawyers handling a wide range of complex commercial and intellectual property litigation, restructuring, corporate transactions and financings, and white collar criminal defense. Munich: Kirklands Munich office, opened in January 2005, enhances our service to existing and prospective clients in Germany and across Europe. Established with a core group of approximately 20 attorneys, the Munich office focuses on private equity and mergers and acquisitions work, and tax and restructuring matters. New York: The New York office opened in 1990 with a team of Kirkland-trained legal professionals and has expanded to approximately 335 lawyers, with special competence in complex U.S.-based and international corporate and risk capital transactions, financings, real estate, commercial litigation, intellectual property, restructuring and tax services. Palo Alto: In August 2008, to enhance our ability to serve our expanding Northern California
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client base, Kirkland established its ninth office in Palo Alto, the heart of Silicon Valley and home to the most vibrant and growing technology sector. Our Palo Alto office will initially focus on intellectual property and private equity representations with a team of approximately 15 attorneys. San Francisco: The San Francisco office opened in January 2003. This location, which includes approximately 90 lawyers, focuses on corporate transactions, particularly in the private equity area, complex commercial litigation, intellectual property litigation and transactions, and corporate reorganizations and restructurings. Shanghai: Kirkland's Shanghai office, opened in January 2010, is the Firm's tenth worldwide and second in Asia. The Shanghai office focuses on complex mergers and acquisitions, fund formation, and restructuring transactions for global and regional private equity funds and corporations, and also represents Chinese companies active abroad. The office is located in the International Financial Center complex in the Pudong business district of Shanghai. Washington, D.C.: Established in 1930, the Washington, D.C. office, located one block from the White House, and with easy access to Capitol Hill, has approximately 180 lawyers. These professionals have a diverse corporate counseling, white collar criminal defense, environmental transactions, energy, defamation, antitrust and trial practice, with a special focus on legislative, regulatory and administrative law, and issues of public policy.
Integrated Teams
Lawyers in all of Kirklands offices work together as integrated, multidisciplinary teams to provide the full service capabilities our clients need for the complex litigation, corporate, intellectual property, restructuring, and tax as well as other interdisciplinary matters they retain Kirkland to handle.
Training
Effective training is critical to the professional development of Kirkland lawyers. For this reason, Kirkland emphasizes attorney training that combines a cutting-edge legal practice with a year-round series of training programs including mock exercises, lectures and presentations. From their first days at our Firm, junior Kirkland lawyers typically have front-line opportunities to take and defend depositions, draft transaction documents, argue motions in court and draft securities filings. By performing such work under the guidance of senior colleagues, Kirkland lawyers learn through hands-on experience. Formal programs covering all of the Firms practice areas ensure that each of the Firms lawyers have the opportunity to develop a broad set of basic skills that are critical to his or her practice.
Diversity
Recognizing that talent comes from all backgrounds, Kirkland is committed to recruiting diverse attorneys and ensuring that the work environment is conducive to their retention and promotion. Diversity is an issue of prime importance to Kirkland and is evident in various programs and initiatives. Initiatives include the Kirkland & Ellis LLP Diversity Fellowship Program, the Womens Leadership Initiative, and various pipelining programs. The Kirkland & Ellis Foundations contributions to various nonprofit organizations, foundations and programs that directly or indirectly benefit diversity-related initiatives
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totaled more than $1.6 million in 2008.
Pro Bono
To help contribute to their communities, Kirkland attorneys pursue pro bono matters ranging from child welfare to protecting the rights of Americans with disabilities. In 2009, Kirkland received the Pro Bono Initiative award from the Public Interest Law Initiative at the organizations annual awards luncheon in Chicago. The award acknowledges a single entity for its significant pro bono work in the community. Kirkland also received the first ever Equality for Kids Community Service Award at the organizations annual benefit. Kirkland has partnered with Equip for Equality for 24 years through pro bono representation and financial support.
Results-Oriented
Kirkland stresses and its clients rightly expect results. To that end, Kirkland employs innovative, pragmatic strategies and hard work. Kirkland recognizes that its success depends upon close coordination with and the satisfaction of its clients. Kirkland initiates periodic review sessions with its clients to measure progress against objectives and to ensure that the clients objectives and needs are being met. Kirkland works with clients to develop mutually beneficial alternatives to the standard hourly rate system that most of the Firms clients historically have preferred.
The Firm seeks long-term, partnering relationships with clients, to the end of providing the best total solution to the clients multidisciplined and industry-specific legal service needs. The Firms goal is to be an instrumental part of each clients success.
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Founded over 100 years ago, Kirkland & Ellis has been called upon to handle complicated litigation, corporate, intellectual property, restructuring, tax, and counseling matters for global clients.
Chicago
300 North LaSalle Street Chicago, IL 60654 t: +1 (312) 862-2000 f: +1 (312) 862-2200
Hong Kong
26th Floor, Gloucester Tower The Landmark 15 Queens Road Central Hong Kong t: +852-3761-3300 f: +852-3761-3301
London
30 St Mary Axe London EC3A 8AF United Kingdom t: +44 20 7469 2000 f: +44 20 7469 2001
Los Angeles
777 South Figueroa Street Los Angeles, CA 90017 t: +1 (213) 680-8400 f: +1 (213) 680-8500
Munich
Maximilianstrasse 11 80539 Munich Germany t: +49 89 2030 6000 f: +49 89 2030 6100
New York
Citigroup Center 153 East 53rd Street New York, NY 10022-4611 t: +1 (212) 446-4800 f: +1 (212) 446-4900
Palo Alto
950 Page Mill Road Palo Alto, CA 94304 t: +1 (650) 859-7000 f: +1 (650) 859-7500 Mailing Address: P.O. Box 51827 Palo Alto, CA 94303
San Francisco
555 California Street San Francisco, CA 94104 t: +1 (415) 439-1400 f: +1 (415) 439-1500
Shanghai
11th Floor, HSBC Building Shanghai IFC 8 Century Avenue Pudong New District Shanghai 200120 Peoples Republic of China t: +8621-3857-6300 f: +8621-3857-6301
Washington, D.C.
655 Fifteenth Street, N.W. Washington, D.C. 20005 t: +1 (202) 879-5000 f: +1 (202) 879-5200
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EXHIBIT 3 Osborn & Bennett Resumes
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Jason D. Osborn
Partner, Corporate
Chicago, Illinois t: +1 312-862-2491 f: +1 312-862-2200 jason.osborn@kirkland.com Education University of Michigan School of Law, J.D. (2002) cum laude New York University, B.A., Politics & History (1999) Professional Profile Jason Osborn is a partner in the corporate department of Kirkland & Ellis LLPs Chicago office. Admissions/Qualifications 2003, New York 2004, Illinois Memberships And Affiliations New York State Bar Association Prior Employment Experience 2003-2004, Linklaters, London
Chicago
Hong Kong
London
Los Angeles
Munich
New York
Palo Alto
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Shanghai
Washington D.C.
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Ryan Blaine Bennett

Partner, Restructuring
Chicago, Illinois t: +1 312-862-2074 f: +1 312-862-2200 ryan.bennett@kirkland.com Professional Profile Ryan Blaine Bennett is a partner in Kirkland & Ellis' Restructuring Group. Mr. Bennett focuses his practice on protecting and advancing the financial interests of corporate debtors and secured and unsecured creditors in the various transactional and litigationrelated aspects of the debtor-creditor relationship. Mr. Bennett also frequently represents both strategic and financial investors with respect to purchasing and investing in distressed businesses, both in and out of court. On the transactional side, Mr. Bennett has a broad range of experience, including advising clients with respect to distressed mergers and acquisitions, negotiating assetbased lending agreements, structuring out of court workouts, DIP financing, and drafting and implementing Chapter 11 plans of reorganization. Mr. Bennett's related litigation experience includes aggressively defending his clients various interests in numerous contested matters involving Chapter 11 plan confirmation, preference actions, fraudulent transfers, involuntary Chapter 11 proceedings, executory contract rejection and assumption disputes, and several complex matters involving highrisk litigation tactics of oppositional creditors and bondholders committees. Representative Matters Automotive: Lear Corporation - Representing Lear Corporation, a leading global supplier of seating and electrical systems to the automotive industry, in achieving the first successful prearranged Chapter 11 restructuring of a tier 1 automotive supplier. Both prior to and during Lear's Chapter 11 filing, Mr. Bennett worked closely with Lear's senior management and major creditor constituents to achieve consensus, while preserving the goodwill of Lear's customers, suppliers and employees. In just four months after filing for bankruptcy in the U.S. Bankruptcy Court for the Southern District of New York, Lear and its 23 U.S. and Canadian subsidiaries emerged from Chapter 11, having eliminated approximately $3 billion in debt, preserved the supply base and positioned the Company as a highly competitive player in its market.
Chicago
Hong Kong
London
Los Angeles
Munich
New York
Palo Alto
San Francisco
Shanghai
Washington D.C.
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DURA Automotive Systems, Inc. - Representing DURA Automotive, an international tier 1 automotive supplier, and forty-one of its domestic and Canadian subsidiaries, in connection with their highly consensual and successful Chapter 11 reorganization cases in the U.S. Bankruptcy Court for the District of Delaware. Among his responsibilities, Mr. Bennett managed the day-to-day administration of the Chapter 11 process, and represented DURA in all aspects of its complex multi-billion dollar restructuring. Tower Automotive, Inc. - Representing Tower Automotive, a leading tier 1 automotive supplier, in connection with its successful Chapter 11 reorganization case in the U.S. Bankruptcy Court for the Southern District of New York. Among his responsibilities on this case, Mr. Bennett was principally charged with maintaining and ensuring the integrity of Tower's supply chain. In this context, he frequently negotiated trade and pricing agreements with Tower's vendors and customers, developed business and litigation tactics to counter stop shipment threats by sole-source vendors, and obtained court approval of several commercial initiatives designed to improve Tower's North American business model. MPI International, Inc. - Representing MPI International, a global and specialized automotive supplier, as the largest unsecured creditor and chair of the Official Committee of Unsecured Creditors, in the chapter 11 bankruptcy case of Sturgis Iron & Metal Co., Inc., in the U.S. Bankruptcy Court for the Western District of Michigan. Atlantic Equity Partners, L.P. (AEP) - Representing AEP in its capacity as prepetition secured lender and proposed chapter 11 plan sponsor in the chapter 11 cases of BHM Technologies Holdings, Inc. et al., pending in the U.S. Bankruptcy Court for the Western District of Michigan. In addition to the above-listed public matters, Mr. Bennett has also actively participated on both debtor and creditor sides in several out of court workouts, restructurings, and consensual wind-downs of various tier 1 and tier 2 automotive suppliers. International: Japan Airlines Corporation (JAL) - Representing Japan Airlines Corporation, Asia's largest air carrier with a fleet of more than 270 aircraft, as international restructuring counsel advising JAL on all aspects of the restructuring of its global operations and representing it in connection with Chapter 15 cases pending before the U.S. Bankruptcy Court for the Southern District of New York. JAL, headquartered in Tokyo, maintained $28 billion in debt at the time of its filing and operates over 900 daily flights from over 60 airports in Japan and provides international flight services to 11 million international passengers in 34 countries each year. Betcorp Ltd. - Representing the Austrailian liquidating trustee of Betcorp Ltd., a former Internet gaming company, in filing its petition for recognition under the newlyestablished Chapter 15 of the U.S. Bankruptcy Code, in the U.S. Bankruptcy Court for the District of Nevada. Betcorp's petition was highly contested, but the Bankruptcy Court ultimately ruled in Mr. Bennett's client's favor, recognizing the Australian
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liquidation as a "foreign main proceeding" under Chapter 15. The Court issued and published a 27-page opinion on the ruling, which has been frequently cited in subsequent bankruptcy court opinions and publications. See In re Betcorp Ltd., 400 B.R. 266 (Bankr. D. Nev. 2009). Cover-All Holding Corp. - Representing Cover-All Holding Corp. and its ten Canadian and U.S. subsidiaries, as the once leading global manufacturers of pre-engineered building structures, in successfully obtaining an order pursuant to Chapter 15 of the U.S. Bankruptcy Code recognizing the Cover-All debtors' pending case under the Canadian Creditors Companies Arrangement Act (CCAA) as a foreign main proceeding. The Cover-All companies were the first foreign debtors to obtain chapter 15 recognition in the U.S. Bankruptcy Court for the Eastern District of Pennsylvania. Industrial (Non-Automotive): NRG Energy, Inc. - Representing NRG Energy, a multi-billion dollar international energy services conglomerate, in connection with its Chapter 11 reorganization in the U.S. Bankruptcy Court for the Southern District of New York. Within this mega-case, Mr. Bennett was the attorney primarily responsible for negotiating and obtaining court approval of his clients sale of certain non-core assets, including the $80.4 million sale of electrical turbines to a Chinese power company and the $160 million sale of a 520 megawatt generating power facility to an Oklahoma-based energy provider. Mr. Bennetts role included, among other things, (i) advising as to the marketing and auction process; (ii) negotiating and drafting the necessary pleadings and purchase agreements; and (iii) negotiating cash collateral agreements with his clients prepetition secured lenders. Atwood Mobile Products, Inc. - Representing Atwood, a prominent manufacturer of components for the recreational and specialty vehicle industry, with respect to its chapter 11 bankruptcy case in the U.S. Bankruptcy Court for the District of Delaware, and subsequent $160 million going-concern sale to Insight Equity, pursuant to section 363 of the Bankruptcy Code. J&L Specialty Steel, Inc. - Representing J&L Specialty Steel, a leading North American manufacturer of flat rolled stainless steel, in its successful out of court restructuring and ultimate acquisition by Allegheny Ludlum Corporation. W.R. Grace & Co. - Representing W.R. Grace, an international chemical supply conglomerate, in connection with preparing and negotiating its Chapter 11 plan of reorganization in the U.S. Bankruptcy Court for the District of Delaware. National Equipment Services, Inc. - Representing National Equipment Services (n/k/a NES Rentals), a national equipment leasing corporation, in all aspects of its Chapter 11 reorganization in the U.S. Bankruptcy Court for the Northern District of Illinois. Polymer Group, Inc. - Representing Polymer Group, a large industrial manufacturer, in all aspects of its ongoing restructuring efforts both prior to, and within the context of, a
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Chapter 11 reorganization in the U.S. Bankruptcy Court for the District of South Carolina. Bank One, N.A. - Representing Bank One's interests as a secured creditor in obtaining adequate protection from debtor HAR Technologies, Inc., for the continued use and subsequent section 363 sale of his clients collateral, in the U.S. Bankruptcy Court for the Northern District of Illinois. Real Estate Development & Hospitality: Clark Realty Capital - Representing Clark Realty with respect to identifying and analyzing distressed real estate investment opportunities. Global Hyatt Corporation - Representing Hyatt in connection with its interests as a significant creditor and contract counterparty of the Cosmopolitan Resort in Las Vegas, Nevada. Starwood Capital Group - Representing Starwood Capital in connection with analysis and potential acquisitions of distressed properties. Telecommunications and Internet: Cable & Wireless (USA), Inc. - Representing Cable & Wireless, a leading Internet services provider, in drafting, negotiating, and confirming its Chapter 11 plan of liquidation in the U.S. Bankruptcy Court for the District of Delaware. Rogers Communications, Inc. - Representing Rogers Communications, a leading North American cable service provider, in protecting its interests as a creditor and cooperative high-speed Internet provider in the Excite@Home bankruptcy case in the U.S. Bankruptcy Court for the Northern District of California. Concurrently, Mr. Bennett also represented his clients Chief Executive Officer in such officers capacity as a former Director of Excite@Home. Commercial Capital Corporation - Representing Commercial Capital as a significant noteholder in connection with an assignment for the benefit of creditors of a defunct dot.com corporation. Retail: Boyds Collection, Ltd. - Representing Boyds, a leading designer, manufacturer and distributor of hand-crafted collectibles and gift products, in drafting, negotiating, and confirming its Chapter 11 plan of reorganization in the U.S. Bankruptcy Court for the District of Maryland. Quality Stores, Inc. - Representing Quality Stores, a large retail chain, as a debtor in its Chapter 11 liquidation proceedings in the U.S. Bankruptcy Court for the Western District of Michigan.
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Education University of Notre Dame Law School (J.D., 2000) Thomas J. White Scholar Issue Editor, Notre Dame Journal of Law, Ethics and Public Policy Michigan State University (B.A., Political Theory & Constitutional Democracy, 1996) Admissions/Qualifications 2000, Illinois Courts 2004, United States Supreme Court 2003, United States District Court for the Eastern District of Michigan 2002, United States Court of Appeals for the Federal Circuit 2001, United States Court of Appeals for the Seventh Circuit 2001, United States District Court for the Western District of Michigan 2000, United States District Court for the Northern District of Illinois Memberships & Affiliations American Bankruptcy Institute Turnaround Management Association Kirkland & Ellis LLP Recruiting Committee (Member, 2006 to Present; Co-chair, Summer Program, 2009) Daniel Murphy Scholarship Foundation, Associate Board Member Chicago Volunteer Legal Services Foundation Notre Dame Alumni Association, Order of St. Thomas More Notre Dame Law School, Alumni Admissions Advisor Michigan State University Alumni Association, Presidents Club
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Other Distinctions Publications: Prof. John Ayer, Michael Bernstein, Jonathan Friedland, and Ryan Blaine Bennett, Chapter 11 101 - Professional Retention and Compensation, AMERICAN BANKRUPTCY INSTITUTE JOURNAL (February 2005) Jonathan P. Friedland and Ryan Blaine Bennett, Turning Off the Lights: Safely Shutting Down an Insolvent Subsidiary, THE CORPORATE COUNSELOR, Volume 19, No. 4a 2004) Professor John Ayer, Michael Bernstein, Jonathan Friedland, and Ryan Blaine Bennett, Chapter 11 101 - What Every Unsecured Creditor Should Know About Chapter 11, AMERICAN BANKRUPTCY INSTITUTE JOURNAL (June 2004) Assistant Editor, Norton Bankruptcy Law & Practice: Use, Sale or Lease of Property Under 11 U.S.C. 363 (West Group 2004) Assistant Editor, Norton Bankruptcy Law & Practice: Use, Sale or Lease of Property Under 11 U.S.C. 363 (West Group 2003) Ryan Blaine Bennett, Safeguards of the Republic: The Professional Responsibility of the American Lawyer to Preserve the Republic Through Law-Related Education, 14 NOTRE DAME JOURNAL OF LAW, ETHICS AND PUBLIC POLICY 651 (2000)
Presentations: Professional Compensation in the Context of Chapter 11, presented at the KIRKLAND INSTITUTE OF RESTRUCTURING TRAINING, July 26, 2006. Understanding Practice Groups in Large U.S. Law Firms, co-paneled with Lane Winter Vanderslice (Mayer, Brown, Rowe & Maw), presented at the Notre Dame Law School, September 10, 2004 Sections 1113 and 1114 of the Bankruptcy Code: Terminating or Modifying Collective Bargaining Agreements, Pension Plans and Retiree Benefits, presented at the KIRKLAND INSTITUTE OF RESTRUCTURING TRAINING, January 26, 2004 Fellowships: Public Interest Law Initiative Fellow (Chicago Volunteer Legal Services Foundation)Summer 2000
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Prior Experience General Motors Corporation, Oldsmobile Division (1996-97) ADP Dealer Services - General Motors University of Automotive Management (1995-96)
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EXHIBIT 4 The following lists contain the names of reviewed entities as described more fully in the Declaration of Ryan Bennett, Esq. (the Bennett Declaration). Where the names of the entities
reviewed are incomplete or ambiguous, the scope of the search was intentionally broad and inclusive, and Kirkland & Ellis LLP reviewed each entity in its records, as more fully described in the Bennett Declaration, matching the incomplete or ambiguous
9 name. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Exhibit 4(a) 4(b) 4(c) 4(d) 4(e) 4(f) 4(g) 4(h) 4(i) 4(j) 4(k) Category Current and Recent Former Debtor Affiliates Current and Recent Former Directors and Officers Equity Holders Insurers Landlords Litigation Parties Professionals Purchaser Secured Lenders Top 20 Unsecured Creditors United States Trustee and Court Personnel for the Central District of California
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EXHIBIT 4(a) Current and Recent Former Debtor Affiliates BioLabs Inc. Westcliff Medical Laboratories Inc.
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EXHIBIT 4(b) Current and Recent Former Directors and Officers Clark, Gregory Kessinger, Will Lynch, Casey Skelton, Jim Skinner, Michael Sloan, H. Bradley Urban, Brian Vernaglia, Kip Whalen, Robert E.
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EXHIBIT 4(c) Equity Holders Angress, Daniel Barnes, Joseph Biolabs Inc. Dalavarian, Hooshang Harrington, Douglas J&R Founders' Fund II LP Nicholson, Richard Nostadt, Gerald Parthenon Capital Parthenon Investors II LP PCIP Investors Preciado, Gayle Urban, Brian Vernaglia, Kip Whalen, Robert E. Young, Richard
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EXHIBIT 4(d) Insurers AFLAC Blue Cross of California Chubb
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EXHIBIT 4(e) Landlords
16585 Via Floresta Inc. 2287 Mowry Group LLC 575 Hardy Investors LLC 624 Medical Center LLC Accretive Laguna Partners LLC Adair Family Trust AH Rolling Oaks Associates Ammlock Real Estate Management Ang, Robert, MD Angel, Stephen, MD Apple Bear Center LLC ARP Holdings LLC Arroyo, Manuel, MD Ascension Realty & Investments Balboa Park Internal Medicine Medical Associates Inc. Balma-Road, Mildred, MD Barth, Neil M. Batavia Woods Medical Center Bhimani Family Trust Bishara, Ishak Biswas, Nanda, MD Blanscet, Laurie, DO Brink, Daniel J. Broe Cos.
Bronco Professional Park LLC BSV Medical Office Building 2 Camarillo Professional Partners Ltd. CBI Centercourt Partners LLC Central Valley Comprehensive Care Inc. Chen, Chien Fang, Dr. Chiavatti LLC Choice Medical Group Chung, Hankyu, MD College Medical Arts Inc. Community Hospital of Los Gatos Inc. Continental Skypark Corp. LLC Corwin Medical Center Cuneo Property Management LLC CVMB LLC Davis, Craig A. Daymore Development De Leon, S.R. Delakator Desert Mountain Professionals DFSCHA Anaheim General Medical Center
Case 8:10-bk-16743-RK
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Doherty, Lady Bug Eisenhower Properties Inc. Foothill Technology Center LLC Foster City Medical Center Ft.Craig LP Garfield Jackson Pristine Property Management Glancz Family LLP, The Greenlaw Laguna Hills LLC Gretchen A. Hetzler MD Inc. Grossmont Land Co. Ha & Yoo Enterprises Inc. Heacock Medical Center Healthcare Realty Services Inc. Heartwise Fitness & Longevity Center High Desert Gastro Inc. High Desert Medical Group Highland Springs Medical Arts Hoag Memorial Hospital Hooshang Dalavarian Family Trust Houghton, Robert, MD HPFGLB Oceanview Medical Cente Irvine Co. LLC, The Joudi, Souad
K&G Mission Medical LLC Kamf Tustin LLC Katzen, Robert, MD Keller, Gregory S., MD Klingbeil Capital Management Lakeside Medical Building LLC Lam, Richard, MD Lancaster Cardiology Medical Group Las Palmas Medical Plaza Lawrence D. Sher MD Inc. Lexham Tenth Street LLC LNI Investment Properties Magnolia Building Investors Inc. Maletz, Willard L., MD Manor Park LLC Martin N. Gordon MD Inc. Matharu, Joginder S., MD McClellan, Stephanie, MD MDT Investments LP Meardon, Paul H. Medical Arts Bulding LP Medical Buildings of America Medical Center, The Medical Group of Culver City
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Mehan, Ris M., as trustee Minson Co. Mission Hospital Mission Hospital Regional Medical Center Inc. Mission Ob/Gyn Medical Group Mitts, Thomas F., MD Mondkar, Avinash M., MD Montpelier One LLC Mowry Medical Partners LLC Narko, Edwin Nephron Properties LLC Newport Center Medical Building 2 Newport Lido Medical Center Newport Lido Medical Parking Newport Medical LLC Newport Pulmonary Associates Medical Group NNN Culver Medical Plaza Orange County Heart Institute Ostoya, Jola J. Ostoya, Paul W. Ouch Sport Medical Center Pacific Coast Cardiology PMB Mission Viejo LLC Pointe Perris Medical LLC
Pomona Mission Medical Clinic Porciuncula, Generoso, MD Primary Provider Manage Co. Inc. Prime A Investments LLC Procom Investments RDB LLC Retsky Family Trust Troop Real Estate Inc. Richard Lam MD Inc. Riches-Sinclair Management Group Riley-Whitwer Medical Building RJS 302 LLC RK Joint Venture Trust Account Robert G.Czako MD Inc. Rodeo Drive Health Center Roohipour, Haleh, MD Royal Development Plaza LLC RVS 110 LLC Saada, Merhej Samaritan Properties LLC San Gabriel Orthopaedic Medical Group San Juan Medical Clinic Inc. Santa Rosa Del Valle Medical Group Inc. SC Heart Specialists
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Sequoia Family Medical Center Seventh Avenue Professional Plaza Sharon McGarrity DOA Medical Corp. SI Investment Trust Siddiqui, K. Ali, MD SKB-Webster LLC SM Physicians Center LLC Smith, Samuel J., MD South Central Family Healthcare South Coast Medical Group South Coast Rehabilitation Center Inc. Stonebridge Medical Center LLC Sunbelt Enterprises Surgical Care Affiliates Temecula Valley OB/GYN Med Terracina Properties LLC
Thomas, Robert C. TSC Group LLC Univ Prop 7 LLC & GS Superior Urology Associate of Silicon Valley VDC Capital Resources LP Walaka Development Walsh Medical Arts Center Warren G Brown Properties Inc. Westchester Medical Group Westenberger, William Westlake Medical Center LLC Westside Medical Associates Windrose Desert Springs Properties LP Womens Health Center, The Yuan, William
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EXHIBIT 4(f) Litigation Parties 1st Business Bank Bayer Healthcare Beckman Coulter Becton Dickinson Biotest Diagnostic California Department of Health Care Services California Department of Justice CI Technology Cotchett Pitre & McCarthy Dell Computer Diasorin Inc. Hunter Laboratories Inc. Jules & Associates Inc. McKesson HLAB Merrill Lynch Riedel, Chris Siemens Sweden Diagnostics
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EXHIBIT 4(g) Professionals Alvarez & Marsal Garvey Schubert Barer Gordon & Rees FTI Consulting, Inc. Levine Neale Bender Brill & Rankin MTS Health Partners Winston & Strawn
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EXHIBIT 4(h) Purchaser K&L Gates LLP LabCorp
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EXHIBIT 4(i) Secured Lenders Bank of America NA Becton Dickinson & Co. BMT Leasing Inc. CapitalSource CapitalSource Finance LLC Cisco Systems Capital Corp. Clearlake CYTYC LP Diasorin Inc. GE Business Financial Services Inc. GE Capital Business Financial Services Inc. GE Healthcare Finance Harvest Jules & Associates Inc. Leasing Associates of Barrington Inc. M&I Marshall & Ilsley Bank Merril Lynch Business Financial Services Inc. Merril Lynch Capital Norlease Inc. Olympus America Inc. Phadia US Inc. Pitney Bowes Credit Corp. Pitney Bowes Global Financial Services Inc. Roche Diagnostics Corporation Sandelman Finance 2006-1 Ltd. TCF Equipment Finance Inc. Three Fields Capital
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EXHIBIT 4(j) TOP 20 Unsecured Creditors Alpha Scientific Medical Inc AT&T Atlas Development BD Becton Dickinson Biomerix Biomerieux Vitek Inc. Cytyc Hologic Limited Partnership Diasorin Inc. Fisher Healthcare Genzyme Genetics Grifols USA LLC Irvine Corporate Center LLC McKesson Info Solutions Phadia Qiagen Inc Roche Diagnostics Corporation Siemens Healthcare Diagnostics Specialty Laboratories Inc. Tripath Imaging Inc Urban Brian (Severance) VWR International VWR International
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EXHIBIT 4(k) United States Trustee and Court Personnel for the Central District of California Albert, Theodore Cadigan, Frank Goldberg, Nancy Hauser, Michael Kwan, Robert Smith, Erithe
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EXHIBIT 5 Search Results Name of Entity Searched Name of Entity and/or Affiliate of Entity, that is a K&E Client Alvarez & Marsal Europe Limited Alvarez & Marsal Inc. Ameritech Cingular Wireless LLC SBC Communications Inc. BA Equity Investors Banc of America Capital Investors Banc of America Capital Investors, L.P. Banc of America Securities LLC BancAmerica Capital Investors II, L.P. Bank of America Bank of America Capital Investors Bank of America Corporation Bank of America Merrill Lynch Bank of America NT & SA Bank of America, N.A. Fleet Equity Capital Justin Dash Merrill Lynch Merrill Lynch - Global Principal Investments Merrill Lynch Bank USA Merrill Lynch Japan Securities Co., Ltd. Bayer Corporate & Business Services, Inc. Status
Alvarez & Marsal
Closed Current Closed Former Current Former Former Former Current Current Former Current Current Current Current Current Former Closed Current Closed Closed Closed Closed
AT&T
Bank of America NA Merril Lynch Business Financial Services Inc. Merril Lynch Capital Merril Lynch
Bayer Healthcare
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Name of Entity Searched
Name of Entity and/or Affiliate of Entity, that is a K&E Client Bayer Corporation Bayer Pharmaceuticals, Inc. Bayer, Inc. Schering Berlin, Inc. Becton Dickinson and Company WellPoint, Inc. California Public Employees' Retirement System CenterPoint Properties Trust Executive Committee of California Water Districts University of California, Berkeley, Human Rights Center
Status
Closed Closed Closed Closed Current
BD Becton Dickinson Becton Dickinson & Co. Blue Cross of California California Department of Health Care Services California Department of Justice
Current Current
Current Closed
Closed
CapitalSource CapitalSource Finance LLC Cisco Systems Capital Corp. Cytyc Hologic Limited Partnership Dell Computer FTI Consulting, Inc.
CapitalSource, Inc. Dean Graham John Delaney Cisco Systems, Inc. Cisco-Linksys, LLC Third Wave Technologies, Inc. David Johnson FTI Cambio LLC FTI Consulting, Inc. Lexecon, Inc. Mark Hebers
Current Current Current Current Current Current Current Current Current Closed Current
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Desc
Name of Entity and/or Affiliate of Entity, that is a K&E Client Birchwood Power Partners, L.P. GE Capital Financial Inc. GE Healthcare General Electric Capital Corporation General Electric Company
Status
GE Healthcare Finance GE Business Financial Services Inc. GE Capital Business Financial Services Inc.
Closed Closed Closed Closed Current Closed Current Current Current Current
Harvest McKesson HLAB McKesson Info Solutions MTS Health Partners Norlease Inc.
Harvest Partners McKesson Corporation MTS Health Partners, L.P. The Northern Trust Company The Northern Trust Company-Fund of Funds Group Ascension Insurance, Inc. Captive Media Network, LLC Diversified Collection Systems, Inc. Intermedix Corporation Parthenon Capital Rackable Systems, Inc. Triad Isotopes, Inc. Pitney Bowes Inc.
Parthenon Capital
Current Current Current Current Current Closed Current Closed
Pitney Bowes Credit Corp. Pitney Bowes Global Financial Services Inc. Roche Diagnostics Corporation
Hoffmann-LaRoche Inc Roche Laboratories, Inc
Current Current
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Name of Entity and/or Affiliate of Entity, that is a K&E Client Dade Behring, Inc. Osram Middle East FZE Osram Sylvania Inc. / Osram Sylvania Products Siemens AG Siemens AG Oesterreich Siemens Audiologische Technik GmbH Siemens Audiologische Technik GmbH Siemens Building Technologies, Inc. Siemens Building Technologies, Inc. Siemens Canada Limited Siemens Communications Inc. Siemens Corporation Siemens Corporation USA Siemens Energy & Automation, Inc., Postal Automation Division Siemens Energy & Automation/Postal Division Siemens Financial Services Siemens Hearing Instruments, Inc. Siemens Medical Solutions USA, Inc. Siemens Medical Systems, Inc. Siemens Microelectronics, Inc.
Status
Siemens Siemens Healthcare Diagnostics
Current Current Current Current Current Closed Current Current Current Current Current Current Current Closed
Closed
Closed Closed Current Closed Closed
Case 8:10-bk-16743-RK
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Name of Entity and/or Affiliate of Entity, that is a K&E Client Siemens Oil and Gas Offshore AS Siemens Power Generation, Inc. Siemens Power Transmission and Distribution, LLC Siemens PSE (PSC) Techlabs Siemens S.A.A. of France Siemens S.A.S. France Siemens Sanayi ve Ticaret A.S. of Turkey Siemens Shared Services Siemens Transportation Systems Corp. Siemens Transportation Systems GmbH & Co KG Siemens Water Technologies VA Tech VA Tech American Corporation VA Tech Elin EBG VA Tech Elin USA Corporation VA Tech Hydro AG VA Technologie Voest-Alpine Services & Technology Corp.
Status
Closed Closed Current
Current Current Current Current Current Current Current Former Current Current Current Current Current Current Current Current
VWR International
Madison Dearborn Capital Partners III, L.P. Madison Dearborn Capital Partners VI
Current
Case 8:10-bk-16743-RK
Desc
Name of Entity and/or Affiliate of Entity, that is a K&E Client Madison Dearborn Partners, Inc. Madison Dearborn Special Equity III, LP Mark B. Tresnowski Patrick C. Eilers VWR Funding, Inc VWR International, LLC Winston & Strawn LLP
Status
Current Current Former Current Current Current Current
Winston & Strawn

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[No Hearing Required Bankruptcy Rule 2014-1(b)]

Motion for Joint Administration pending.

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the operating company.

interest in the Debtor. 3. Westcliff was founded in 1964 as a community-based

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THE PROPOSED SALE. In consideration of the foregoing, the Debtors have To

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First, Lab Corp, which is in the same business as

After arms-length negotiations, including exchanges of

extensively involved in the negotiation of the terms of the Sale

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Based on the foregoing, and after taking into account

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to provide corporate information to LNBRB that may

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counsel since 2008.

qualified and uniquely able to represent the Debtors in these

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resume is attached as Exhibit 2 to this declaration.

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K&Es hourly rates are set at a level designed to

The following professionals presently are expected to

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connections to the entities, and to the extent that I have been

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necessary and when K&E becomes aware of additional material

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The following is a list of the categories that K&E

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these chapter 11 cases.

exhibits, K&E represents certain of the Debtors creditors,

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associates, and employees personally directly acquire a debt or

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exist among the Debtor entities. 8

Nevertheless, the Debtors have

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EXHIBIT 1 Engagement Letter

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