case 15-10104-lss doc 79 filed 02/04/15 page 1 of 10 a johnson associates principal will testify at...

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT Or DELAWARE

In re: ) Chapter I 1

HIPCRICK~T, INC., ) Case No. 15-10104 (LSS)

Debtor. )

Tlearing Date: (7'13D~Objection Deadline: (T'I3ll]

APPLICATION OF THE DEBTOR FOR ENTRY

OF AN ORDER AUTHORIZING THE RETENTION OF

JOHNSON ASSOCIATES, INC. TO PROVIDE EXPERT WITNESS

SERVICES TO THE DEBTOR NUNC PRO TUNC TO THE PETITION llAT~

Hipericket, Inc. (the "Debtor" or "Hipericket") hereby applies (the

"Application") for entry of an order (the "Order") pursuant to sections 327(a) and 328(a) of

Title l 1 of the United States Lode (the ̀ Bankruptcy Code"), Rule 2014(a) of the Federal Rules

of Bankruptcy Procedure (the ̀ Bankruptcy Rules"), and Rules 2014-1 and 2016-1 of the Local

Rules of Bankruptcy Practice and Procedure of the United States Bankruptcy Court for the

District of Delaware (the "Local Bankruptcy Rules"), authorizing the retention of Johnson

Associates, Inc. ("Johnson Associates") to provide expert witness services to the llebtoi• none

pro tune to January 20, 2015 (the "Petition Date"). 1n support of the Application, the Debtor

relies upon the Declaration of Jeff Visithpanich in Support of Application of the Deblor,fof° En1.ry

of~ an Oder Authorizing the Retention of Johnson Associates, Inc. to Provide Ex~~ert Witness

Services to the DebtoN Nunc PNo Tunc to the Petition Date (the "Visithpanich Declaration"),

attached hereto as Exhibit A.

1 The last four digits of the Debtor's tax identification number are 2076. The location of the Debtor's

headquarters and the service address for the Debtor is 110 110th Avenue NE, Suite 410, Bellevue, WA 98004.

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Case 15-10104-LSS Doc 79 Filed 02/04/15 of 10

PRELIMINARY STATEMENT

1. By this Motion, Hipericket seeks to retain a Johnson Associates' principal

to provide expert testimony regarding the reasonableness of Hipericicet's proposed 1<ey employee

incentive program. For its expert witness services, Johnson Associates will be compensated at

the hourly rates that are in effect from time to time, not to exceed $7,500 in the aggregate.

Pursuant to a prepetition engagement letter, Johnson Associates received a retainer of $15,000

for its services rendered prepetition. Johnson Associates will roll the balance of the prepetition

retainer, if any, to a new postpetition retainer from which postpetition fees will be paid in

accordance with the Bankruptcy Code, the Bankruptcy Rules, the Local Bankruptcy Rules, and

any applicable Orders of the Court.

JURISllICTION AND VENUE

2. This Court has jurisdiction to consider the Application pursuant to 28

U.S.C. §§ 157 and 1334. This is a core proceeding under 28 U.S.C. § 157(b)(2). Venue of this

case and the Application in this District is proper under 28 U.S.C. §§ 1408 and 1409.

3. The legal predicates for the relief requested herein are sections 327(a) and

328(a) of the Bankruptcy Code, Bankruptcy Rule 2014(a), atld Local Bankruptcy Rules 2014-1

and 2016-1.

4. Pursuant to Local Bankruptcy Rule 9013-1(~, the Debtor consents to the

entry of a final judgment or order with respect to the Application if it is determined that this

Court would lack Article III jurisdiction to enter such final order or judgment absent the consent

of the parties.

2DOCS SP:87062.3


BACKGI20UND

5. On January 20, 2015 (the "Petition Date"), the Debtor filed with this

Court a voluntary petition for relief under chapter I 1 of the Bankruptcy Code.

6. On January 2l, 2015, the Debtor filed a motion [Docket No. 12] (the ̀ Bid

Procedures Motion") for the entry of an order approving, among other things, bid procedures i»

connection with the sale of substantially all assets of the Debtor.

7. On January 28, 2015, the Debtor filed its Motion,foN the Apps°ov~rl of Key

F,rnployee Incentive Plan and Authorizing Payments Thereunder [Docket No. 66] (the "KEIP

Motion"). The KEIP Motion seeks approval of a compensation plan (the "Incentive Plan") that

incentivizes certain key employees to maximize the sale price of Hipericket's assets for tha

benefit of its estate and creditors.

8. The Incentive Plan was designed with assistance and input from counsel

and Johnson Associates, a premier compensation consulting arm. As set forth in the KEIP

Motion, a Johnson Associates principal will testify at the hearing on the KEIY Motion as to the

reasonableness of the Incentive Plan.

RELIEF REQUESTEll

9. By this Application, the Debtor i°equests entry of an order pursuant to

sections 327(a) and 328(a) of the ~3ankruptcy Code, Bankruptcy Rule 2014(a), and Local

Bankt•uptcy Rule 2014-1 authorizing the Debtor to employ and retain Johnson Associates to

provide expert witness services to the Debtor Hunt pro Cunc to the Petition Date, in accordance

with the terms and conditions set forth herein. Specifically, the Debtor proposes to retain

Johnson Associates for the limited purpose of providing expert testimony on the reasonableness

of the Incentive Plan in connection with the KEIP Motion and any objections and responses

3DOCS SI':87062.3


thereto. Por the reasons set forth herein, the Debtor submits that the relief requested is in the hest

interests of the Debtor, its estate, creditors, and other parties in interest, and, therefore, should be

granted.

SERVICES TO B~ RENDERED

10. The terms and conditions of the engagement for expert witness services

were negotiated at arm's length between the Debtor and Johnson Associates and t~eflcct the

parties' anutual agreement as to the efforts that will be required by this engagement. In

consideration for the compensation contemplated, Johnson Associates has agreed to (a) provide

expert testimony on the reasonableness of the Incentive Plan and (b) assist with the preparation

oP declarations and briefing filed in this chapter I 1 case, if necessary, concerning the Incentive

Plan (collectively, the "Services").

11. As compensation for these Services, the parties have agreed that .Tohnson

Associates will be compensated at the hourly rates that are in effect from time to time, not to

exceed $7,500 in the aggregate. Moreover, pursuant to a prepetition engagement letter, Johnson

Associates received a t•etainer of $15,000 for its services rendered prepetition (the "Pre~etition

Retainer"). Johnson Associates will roll the balance of the Prepetition Retainer, if any, into a

new postpetition retainer (the "Fostt~etition Retainer"). I-~ipericket will fund the Postpetition

Retainer up to $7,500 in the aggregate (r.'.e., $7,500 less the balance of the Prepetition Retainer).

In accordance with the T3anlcruptcy Code, the Bankruptcy Rules, the Local Bankruptcy Rules,

and any applicable Orders of the Court, Johnson Associates will deduct its allowed fees and

expenses from the Postpetition Retainer. To the extent there are remaining funds in the

Postpetition Retainer at the conclusion of the engagement, such funds will be returned to

Hipericket.

4ROCS SP:870(2.3


12. 1t is necessary and essential that the Debtor, as debtor in possession,

employ an expert witness to render the foregoing Services. As described below and snore fully

in the Visithpanich Declaration, Johnson Associates has extensive compensation plan experience

and Mr. Visithpanich has particular depth of experience in developing and analyzing

compensation plans in the bankruptcy context. Accordingly, Johnson Associates and Mr.

Visithpanich are well qualified to perform these services and assist the Debtor in its chapter I1

case.

BASIS FOR RELIEF

13. Hipericket intends, pursuant to a court approved auction and sale process,

to sell substantially all of its assets pursuant to the terms of that certain Asset Purchase

Agr^eervrent (the "APA") dated January 20, 2015, subject to higher and better bids at auction.

Pursuant to the APA, Hipericket is required to close the sale no later than approximately March

1~, 2015, which will require a substantial commitment of time and effort on the part of the

eligible employees. In order to maximize the value to be generated by the sale, Hipci-icket must

comply with the bid procedures approved by the Court for the Sale, market its assets, generate

interest on the part of potential purchasers, support extensive due diligence requests fi•om

interested parties, receive qualified bids, conduct an auction, obtain court approval for the sale,

and then close upon the sale. The work and effort of the eligible employees is absolutely critical

to the success of this process.

14. In order to incentivize the eligible employees to maximize value with

respect to the sale, Hipericket engaged in appropriate due diligence in formulating the incentive

Plan under the facts and circumstances of this chapter l 1 case. As discussed above, the Debtor

formulated the Incentive Plan with counsel and engaged Johnson Associates, a compensation

5DOGS S}:870623


consulting arm, to benchmark the Incentive Plan and overall compensation package for senior

employees, to compensation plans implemented by companies comparable to IIipericicet.

15. In anticipation of a contested hearing on the KEIP Motion, the Debtor

seeks to retain Johnson Associates to provide expert witness services in support of the KCIP

Motion.

16. As evidenced by the Visithpanich Declaration, Mr. Visithpanich is a

Managing Director at Johnson Associates in New Yorlc, New Yorlc. Ike has extensive experience

designing executive compensation programs and providing advice on compensation levels across

American industry. Mr. Visithpanich is particularly familiar with designing and analyzing

competitive executive compensation plans across professional services firms, manufactut•ing

companies, technology businesses, and related firms. In addition, Mr. Visithpanich has

pet•formed these services for the last 18 years in his capacity as a compensation consultant.

DISINTERESTEDNESS OF PROFESSIONALS

l7. To the best of the Debtor's knowledge, as set forth in the Visithpanich

Declaration: (i) Johnson Associates and Mr. Visithpanich are "disinterested persons" within the

meaning of section 101(14) of the Bankruptcy Code, as modified by section 1107(b) of the

Bankruptcy Code, and do not hold or represent an interest materially adverse to the Debtor's

estate with respect to the matters for which Johnson Associates and Mr•. Visithpanich are being

retained; and (ii) Johnson Associates and Mr. Visithpanich have no connection to the Debtor•

(other than this engagement), its creditors, or other parties in interest in this chapter 11 case.

18. As set forth in further detail in the Visithpanich Declaration, and subject to

ongoing due diligence, Johnson Associates does not believe that it has any connections with

parties in interest in this chapter ll case that represent an interest materially adverse to the

6DOCS SI~:87062.3


Debtor's estate or otherwise create a conflict of interest ~~egarding the Debtor or this chapter 11

case.

19. As set forth in the Visithpanich Declaration, to the extent that any naw.

relevant facts or relationships bearing on the matters described herein are discovered or anise,

Johnson Associates and Mr. Visithpanich will use reasonable efforts to promptly ale a

supplemental declaration, as required by Bankruptcy Rule 2014(a).

PROFESSIONAL CONiPrNSATION

20. Johnson Associates and Mr. Visithpanich intend to seek compensation fot~

services rendet~ed and expenses incurred in accordance with the Bankruptcy Code, the

Bankruptcy Rules, the Local Bankruptcy Rules, and any applicable Orders of the Court.

21. The Debtor proposes to compensate Johnson Associates and Mi•.

Visithpanich for services rendered at the hourly rates that are in effect from time to time, as set

forth in the Visithpanich Declaration, and to reimburse Johnson Associates and Mr. Visithpanich

according to Johnson Associates' customary reimbursement policies, but not to exceed $7,500 in

the aggregate. The Services will be performed primarily by Mr. Visithpanich with the limited

assistance of a minimal number of analysts. Johnson Associates' current range of standard

hourly rates in the New York office, subject to change from time to time, are: (a) $420 per hour

for Jeff Visithpanich and (b) $275 per hour (average) for analyst support.

22. As set forth in the Visithpanich Declaration, Mr. Visithpanich believes,

and the Debtor agrees, that the foregoing compensation arrangements are (a) ~•easonable, (b)

market-based, and (c) merited by Johnson Associates' and Mr. Visithpanich's extensive

knowledge and experience in designing executive compensation programs.

7DOCS SF:870623


23. As more fully described in the Visithpanich Declaration, neither Mr,

Visithpanich nor Johnson Associates a►~e prepetition creditors of the Debtor. Nn promises have

been received by Johnson Associates or Mr. Visithpanich as to compensation or payment in

connection with this retention other than in accordance with the provisions of the Bankruptcy

Lode, the Bankruptcy Rules, the Local Bankruptcy Rules, and Orders of this Court. Johnson

Associates and Mr. Visithpanich have no agreement with any non-affiliated person or entity to

share with such entity any compensation received in connection with this retention except as set

forth in the Visithpanich Declaration.

APPLICABLE AUTHORITY

24. Under section 327 of the. Bankruptcy Code, a debtor in possession may

employ one or more professionals that do nat hold or represent an intierest adverse to the estate

and that are disinterested persons, to assist the debtor in possession in carrying nut its duties

under the Bankruptcy Code. 11 U.S,C. § 327(a).

25. Section 328(a) of the Bankruptcy Code, in turn, provides that employment

of a professional person under section 327 of the I3anki~uptcy Code may be "on any t•easonable

terms and conditions of employment, including on retainer, on an hourly basis, nn a fixed ot•

percentage fee basis, or on a contingent fee basis" subject to later re-evaluation by the court. 11

U.S.C. § 328(a).

26. Bankruptcy Rule 2014 requires that an application for retention of a

professional person include:

[S]peci~c facts showing the necessity for the employment,

the name of the person to be employed, the reasons for theselection, the professional services to be rendeeed, any

proposed arrangement for compensation, and to the best ofthe applicant's knowledge, all of the person's connections

with the debtor, creditors, any other party in interest, their

8vocs sr:s~o6a.3


respective attorneys and accountants, the United States

trustee, or any person employed in the office of the United

States trustee.

Fed. R. Banlcr. Y. 201~(a). Local Bankruptcy Rule. 2014-1 further requires that "[a]ny entity

seeking approval of a professional person pursuant to 11 11.S.C. § 327 ... shall ale with the

Court a motion, a supporting affidavit or verified statement of the professional person and a

proposed order for approval." Del. Bankr. L.R. 2014-1(a).

27. Based on the foregoing and as further supported by the Visithpanich

Declaration, the Debtor believes that the retention of Johnson Associates and Mr. Visithpanich to

provide expert witness services is necessary and appropriate, and in the best interests of the

Debtor, its estate, and its creditors.

NOTICE

28. Notice of the Application will be given to: (i) the United States Trustee;

(ii) counsel to the agent under the debtor in possession financing; (iii) counsel to the Official

Committee of [Jnsecured Creditors; and (iv) all parties entitled to notice pursuant to Bankruptcy

Rule 2002. The Debtor submits that no other or further notice need be provided.

NO PREVIOUS REQUEST

29. No previous request for the relief sought herein has been made by the

Debtor to this Court or any other court.

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CONCLUSION

WHEREFORE, the Debtor respectfully requests that the Court enter an order,

substantially in the form annexed hereto as E~chibit B, granting the relief requested an the

Application and such other and further relief as may be just and proper.

Dated: February 4, 2015 PACHULSKI STANG ZTEHL &JONES LLP

/s/James O'NeillIra D. I~harasch (CA Bar No. 109084)Linda F. Cantor (CA Bar No. 153762)James O'Neill (DE Bar No. 4042)919 North Market Street, l 7th FloorP.O. Box 8705Wilmington, DE 1-9899-8705 (Courier 19801)Telephone: (302) 652-4100Facsimile: (302) 652-4400E-mail: [email protected]

[email protected]@pszjlaw.com

[Proposed] Counsel to Debtor andDebtor in Possession

10DOC;S SF:870623


EXHIBIT A

Visithpanich Declaration

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Case 15-10104-LSS Doc 79-1 Filed 02/04/15 Page 1 of 10

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF DELAWARE

In re: ) Chapter 11

HIPCRICKET, INC., ) Case No. 15-10104 (LSS)

Debtor. )

DECLARATION OF JEFF VISITHPANICH IN SUPPORT OF APPLICATION OF THE

DEBTOR FOR ENTRY OF AN ORDER AUTI~ORIZING THE RETENTION OI'

JOHNSON ASSOCIATES, INC. TO PROVIllE EXPERT WITNESS

SERVICES TO THE ll~BTOR NUNCPRO TU1VC TO THE PETITION DATA

I, Jeff Visithpanich, make this Declaration under 28 U.S.C. § 1746:

1. I am a Managing Director at Johnson Associates, Inc. ("Johnson

Associates"), which is located at 19 West 44th Street, Suite Sll, New York, New Yorlc 10036. I

submit this declaration ("Declaration") in support of the Application ("Application")~ of

Hiperieket, Inc., the above-captioned debtor and debtor in possession ("Debtor") for• entry of an

order, pursuant to sections 327(a) and 328(a) of the Bankruptcy Code, Bankruptcy Kule 2014(a),

and Local Bankruptcy Rule 2014-1, authorizing the employment of Johnson Associates to

provide expert witness services to the Debtor nunc pro tunc to the Petition Date.

2. The statements set forth below are based upon my personal knowledge.

RETENTION TO PROVIDE EXPERT WITNESS

SERVICES TO THE DEBTOR

3. On the Petition Date, the Debtor, subject to Court approval, retained

Johnson Associates to provide expert witness services on the terms set forth herein.

1 T'he last four digits of the Debtor's tax identification number are 2076. The location of the Debtor's

headquarters and the service address for the Debtor is 110 110th Avenue NE, Suite 410, Bellevue, WA 98004,

2 Capitalized terms not otherwise defined het•ein shall have the meanings ascribed to them in the Application.

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4. I am currently a Managing Director at Johnson Associates in New Yorl<,

New York. I have extensive experience designing senior executive compensation plans. Yam

particularly familiar with designing and analyzing senior executive compensation plans for

companies in chapter 11 proceedings. In addition, I have previously been qualified as a

compensation expert in the United States Bankruptcy Court for the District of Delaware.

5. I have a particular depth of experience in designing senior executive

compensation plans and providing advice on compensation levels for companies across

American industry. I am particularly familiar with designing and analyzing competitive

executive compensation plans across professional services firms, manufacturing companies,

technology businesses, and related firms. In addition, I have performed these services for the last

18 years in my capacity as a compensation consultant.

6. Johnson Associates and Twill (a) provide expert testimony on the

reasonableness of the Incentive Plan and (b) assist with the preparation of declarations and

briefing filed in this chapter 11 case, if necessary, concerning the Incentive Plan (collectively, the

"Services").

7. 1 will use the services of Johnson Associates' analysts for research

assistance and related support services to assist me with the performance of the Services,

8. The Debtor proposes to retain Johnson Associates for the limited purpose

of providing expert testimony on the reasonableness Incentive Plan in connection with the KI;IP

Motion and any objections and responses thereto.

DOGS SP:87062.3

2


DISINTERESTEDNESS OF PROFESSIONALS

9. Johnson Associates' conflicts database includes matters on which I and

Johnson Associates are, or at one time were, retained and, in each instance, to the extent known,

includes the identity of adverse parties. Johnson Associates regularly updates this database.

10. In connection with its proposed retention by the Debtor, I undertook to

determine whether Johnson Associates (and I) had any conflicts ot~ other connections that might

cause me or Johnson Associates to hold or represent an interest advel•se to the Debtor with

respect to the matters on which we are to be employed. I obtained from the Debtor a conflicts

checklist with names of individuals and entities that should be searched in Johnson Associates'

conflicts database ("Potential Parties in Interest"), a copy of which is annexed hereto as

Schedule 1.

I1. In preparing this Declaration, I and others at Johnson Associates have

reviewed Schedule 1. Based on this review, to the best of my knowledge and except as

otherwise set forth herein, it appears that Johnson Associates and I: (a) do not hold or represent

any interest adverse to the Debtor's estate in any matter in respect of the Services to be provided

to the Debtor; (b) are "disinterested persons" as that term is defined in section 101(14) ~f tihe

Bankruptcy Code, as modified by section 1107(b) of the Bankruptcy Lode; and (c) have no

connection with the Debtor, its creditors, the U. S. Trustee or any of the other Potential Parties in

Interest in any matter in respect of the Services to be provided to the Debtor.

12. As provided in more detaij below, Johnson Associates and I have reviewed

our connections with the Potential Parties in Interest. Based on such review, and subject to

ongoing due diligence, Johnson Associates does not believe that it has any connections with

parties in inter°est in this Chapter 11 Lase which represent an interest materially adverse to the

3nocs sr:a~o~a.3


Debtor's estate or otherwise create a conflict of interest regarding the Debtor or the Chapter 11

Case.

13. Based on the foregoing and except as otherwise set forth herein, neither

Johnson Associates nor any shareholder or employee thereof, including myself; (a) represents

any adverse interest to the Debtor's estate in connection with matters upon which Johnson

Associates and I are to be employed; (b) is or was a creditor or insider of the Debtor; or (c) is or

was, within two (2) years before the Petition Date, a director, officer, or employee of the Debtor.

Accordingly, I submit that Johnson Associates and I are "disinterested persons" as such term is

defined in section 101(14) of the Bankruptcy Code, as modified by section 1107(b) of the

Bankruptcy Code.

14. Johnson Associates is currently engaged in further inquiry regarding its

conflict ehecic of the Potential Parties in Inte~•est. Johnson Associates will promptly file a

supplemental declaration should the results of this inquiry or any further inquiries reveal material

facts not disclosed herein.

PROFESSIONAL COMPENSATION

15. Subject to the Court's approval, I will charge for my services and the

services of 3ohnson Associates' professionals on an hourly basis in one-tenth hour (U.1)

increments, in accordance with Johnson Associates' hourly rates in effect on the date services are

rendered. The Services to be provided will be performed primarily by me with the limited

assistance of a minimal number of analysts as necessary. Johnson Associates' current range of ;

standard hourly rates in the New York office, subject to change from time to time, are: (a) $420

per hour for Jeff Visithpanich and (b) $275 per hour (average) for analyst support,

4ROCS S1~:870623


16. Pursuant to a prepetition engagement letter, Johnson Associates received a

retainer of $15,000 for its services rendered prepetition (the "Prepetition Retainer"). Johnson

Associates will roll the balance of the Prepetition Retainer, if any, into a new postpetition retainer

(the "Postpetition Retainer"). Hipericket will fund the Postpetition Retainer up to $7,500 in the

aggregate (i.e., $7,500 less the balance of the Prepetition Retainer). In accordance with the

Bankruptcy Code, the Bankruptcy Rules, the Local Bankruptcy Rules, and any applicable Orders

of the Court, Johnson Associates will deduct its allowed fees and expenses from the Postpetition

Retainer. To the extent there are remaining funds in the Postpetition Retainer at the conclusion

of the engagement, such funds will be returned to Hipericket.

17. I also intend to seek reimbursement for reasonable expenses incurred in

connection with the services provided to the Debtor. However, total fees and expense shall not

exceed $7,500 in the aggregate.

18. Johnson Associates and I intend to seek compensation in accordance with

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

Orders of the Court.

19. No promises have been received by me, or any shareholder or employee of

,Tohnson Associates, as to payment or compensation in connection with this chapter 11 case other

than in accordance with the provisions of the Bankruptcy Code.

20. Neither I nor Johnson Associates has shared or agreed to share any of its

compensation from the Debtor with any other person, other than with shareholders or employees

of Johnson Associates as permitted by section 504 of the Bankruptcy Code.

5DOGS 51:87062.3


~~?i, C cleula~•c t~ncicr ~~en~~ity c~{' pci~jur•y ih~t, tc~ tl~c l~c~t of r~~r~ h~~oF~:~lud~~e. ~ii~d

4~i~te-r r~~son~ble ir~c~uiry~, thu fbr~„~ait7g is trGtG ar~t~ cC~~•~•~;ct.

.r--~: ~._ ~~a,,,..~ -s=~~

l~~xc~-~~ted this ~t17 ci4t~r ai~ i~~:I~~•utzr~y 2(}1 S, ~` ~ ,~_..-~-

r1~~t~ ' Visit(~pariic}t

6I~c.x.~s sr•.>7c~c~


SCHEDULE 1

Potential Parties in Interest

UOCS SI~:870623


Hipericket Conflicts ListLast Updated: 2/4/2015

DebtorHipericket, Inc.

Counsel to Creditor Committee

Pepper I-Iamilton LLP

Secured CreditorsMitel LeasingtJS Equipment Finance

Fast Pay, LLC

DIP LenderSITO Mobile, Ltd.

OfficersTodd Wilson, CEO

Doug Stovall, President &LOO

David Hostetter, CTO

Kate Parley, SVP Business Operations

ProfessionalsPachulski Stang Ziehl &Jones LLP

Rust/OmniPerkins Coie LLPCanaccord tenuity Inc.

Top 20 Unsecured Creditors

MobilefuseTapit MediaLumobi, Inc.Perl<itls CoieShaub &Williams LLP

Mobilewalla, Inc.Adap.ty, Inc.Stril<eAd, Inc.AIM Consulting Group

Richardson &Patel LLP

Goodwin Proctor, LLP

NYS Department of Taxation and Finance

Drawbridge, -Inc.Gordon Rees, LLPMobile Posse, Inc.Yahoo! Inc.Boehringer IngelheimGo2Mobi

ROCS I.,n:284999.1 36480/001


Hipericket Conflicts ListLast Updated: 2/4/2015

Acuity Ads, Inc.Live Rail

Utilities1 10 Atrium PlaceConcourse Owner V/VI, I,LCComcastTW TelecomCitrix OnlineCogenti CommunicationsInfiniteVe~•izanHardwellVitelilty CommunicationsWLBF,XXO One and XO Commtulications

Landlords485 Properties, LLC c/o Cousins Properties Services LLC

Talon Portfolio Services LLCPitcher, Nichols &Meeksl~~ardwell Acquisition LLCTDC Canada Corp. and Wacker GP, lnc. c/o DUS Management, Inc.

High Water Systems

I3an1<sSilico~~ Valley BankWells Fargo Bank

Ordinar~Cour•se ProfessionalsF,pic Strategic CommunicationsRichard M. Howe, Howe &AssociatesNoam J. Cohen, PAJessica Kenney, Richard James &Associates

ROCS Ln284999.1 36480/001


EXHIBIT B

Proposed Order

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IN THE UNITED STATES BANKRUPTCY COt1RT

FOR THE DISTRICT OF DELAWARE

In re: ) Chapter 11

I~IPCRtCICET, INC., ) Case No. 15-10104 (LSS)

Debtor. ) Related llocket No.

ORDER AUTHORIZING THE RETENTION OF

JOHNSON ASSOCIATES, INC. TO PROVIDE ~XPEItT WITNESS

SERVICES TO THF. DEBTOR NUNC PRO TUNC TO THE P~'TITION DATE

Upon the application (the "Application")2 of the Debtor for entry of an order (the

"Order"), under sections 327(a) and 328(a) of the Bankruptcy Code, Bankruptcy Rule 2014, and

Local Bankruptcy Rules 2014,-1 and 2016-1, authorizing the employment and retention of

Johnson Associates, Inc. ("3ohnson Associates") to provide expert witness services to the

Debtor nunc pNo tunc to the Petition Date; and upon consideration of the Visithpanich

Declaration; and the Court having reviewed the Application and Visithpanich Declaration; and

the Court being satisfied with the representations made in the Application and the Visithpanich

Declaration that Johnson Associates and Mr. Visithpanich represent nn interest adverse to t11e

Debtor or its estate, that Johnson Associates and Mr. Visithpanich are "disinterested persons" as

that teY-m is defined under section 101(14) of the Bankruptcy Code, as modified by section

1107(b) of the Bankruptcy Code, and that their employment is necessary and in the best interests

of the Debtor's estate, creditors, and other parties in interest; and it appearing that the Court has

jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and 1334; and it further appearing that

1 The last four digits of the Debtot•'s tax identification number• are 2076. The location of the Debtor's

headquarters and the service addf•ess for the Debto~~ is 110 110th Avenue NE, Suite 410, Bellevue, WA 98004.

2 Capitalized Perms used but defined herein shall have the meanings ascribed them in the Application.

ROCS S1~:870623


this matter is a core proceeding pursuant to 28 U.S.C. ~ l 57(b); and it appearing that proper and

adequate notice of the Application has been given and that no other or further notice is

necessary; and upon the record herein; and after due deliberation thereon; and good and

sufficient cause appearing therefor,

IT IS HERBY ORDERED THAT:

1. The Application is GRANTF,D as set forth herein.

2. Pursuant to sections 327(a) and 328(a) of the Bankruptcy Code, the

Debtor, as debtor and debtor in possession, is authorized to employ and retain ,Tohnson

Associates effective as of the Petition Date, in accordance with the Application and the Order, to

perform expert witness services as described therein.

3. Johnson Associates shall be compensated in accordance with the

applicable provisions of the Bankruptcy Code, the Bankruptcy Rules, and the Local Bankruptcy

Rules, and any orders entered in this case governing professional compensation and

reimbursement for services rendered and charges and disbursements incurred.

4. Notwithstanding any stay that might be imposed by Bankruptcy Rule

6004(h) or otherwise, the Ot•der shall be effective and enforceable immediately upon enhy

hereof.

5. The Court retains ;jurisdiction with respect to all matters arising from ot~

related to the implementation, interpretation, and enforcement of the Order.

Dated: , 2015

The Honorable Laurie Selber Silverstein

United States Bankruptcy Judge

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