Assets, (Ii) Proposed Purchase Agreement In Connection
- Date
- 2024-06-09
Summary
A notice of successful bidder for the sale of certain of the debtors' ventilation assets, filed August 15, 2024 as Doc 388 in In re: Vyaire Medical, Inc., et al., Case No. 24-11217 (BLS), in the United States Bankruptcy Court for the District of Delaware. The notice states that after an auction held August 12-14, 2024 the Debtors selected Zoll Medical Corp. as Successful Bidder, with cash consideration of $37.00 million plus assumption of certain liabilities, and Vent Portfolio, LLC as Back-Up Bidder at $24.24 million. It sets a Post-Auction Objection Deadline of August 16, 2024, at 4:00 p.m. and a Sale Hearing on August 19, 2024 before Judge Brendan L. Shannon. Exhibit A is a draft Zoll Asset Purchase Agreement with its table of contents and interpretive provisions, and Exhibit B, the Proposed Sale Order, is marked to be filed separately. The filing runs 92 pages.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
Full text
Case 24-11217-BLS Doc 388 Filed 08/15/24 Page 1 of 92
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
)
In re: ) Chapter 11
)
VYAIRE MEDICAL, INC., et al., 1 ) Case No. 24-11217 (BLS)
)
Debtors. ) (Jointly Administered)
)
)
NOTICE OF (I) SUCCESSFUL BIDDER FOR THE
SALE OF CERTAIN OF THE DEBTORS’ VENTILATION
ASSETS, (II) PROPOSED PURCHASE AGREEMENT IN CONNECTION
THEREWITH, AND (III) PROPOSED SALE ORDER IN CONNECTION THEREWITH
PLEASE TAKE NOTICE that, on June 9, 2024, each of the above-captioned debtors and
certain of its subsidiaries (collectively, the “Debtors”) filed a petition with this Court under
chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”).
PLEASE TAKE FURTHER NOTICE that, on July 11, 2024, the United States
Bankruptcy Court for the District of Delaware (the “Court”) entered the Order (I) Approving
Bidding Procedures in Connection with the Sale of Substantially All of the Debtors’ Assets,
(II) Authorizing the Debtors to Enter Into a Stalking Horse Agreement and Provide Bid
Protections, (III) Approving the Form and Manner of Notice Thereof, (IV) Scheduling an Auction
and Sale Hearing, (V) Approving Procedures for the Assumption and Assignment of Contracts,
(VI) Approving the Sale of the Debtors’ Assets Free and Clear, and (VI) Granting Related Relief
[Docket No.249] (the “Bidding Procedures Order”), authorizing the Debtors to solicit and select
the highest or otherwise best offer(s) for a sale (or sales) (each, a “Sale Transaction”) of (a) all or
substantially all of the assets or (b) one or more, or any combination of, assets of one or more
Debtors. 2
PLEASE TAKE FURTHER NOTICE that on August 12-14, 2024, in accordance with
the terms of the Bidding Procedures Order, the Debtors conducted an auction virtually through an
online platform.
PLEASE TAKE FURTHER NOTICE that, upon the conclusion of the Auction, the
Debtors, in the exercise of their reasonable and good-faith business judgment, have selected
1
The last four digits of Debtor Vyaire Medical, Inc.’s federal tax identification number are 6495. A complete list
of each of the Debtors in these chapter 11 cases and each such Debtor’s federal tax identification number may be
obtained on the website of the Debtors’ claims and noticing agent at https://omniagentsolutions.com/Vyaire. The
location of Debtor Vyaire Medical, Inc.’s principal place of business and the Debtors’ service address in these
chapter 11 cases is 26125 North Riverwoods Boulevard, Mettawa, Illinois, USA 60045.
2
Capitalized terms used but not defined herein have the meanings given to them in the Bidding Procedures Order.
Case 24-11217-BLS Doc 388 Filed 08/15/24 Page 2 of 92
(a) Zoll Medical Corp. (“Zoll”) as a Successful Bidder (the “Purchaser”), and
(b) Vent Portfolio, LLC (and React Health Holdings, LLC as guarantor), as a Back-Up Bidder, in
connection with the sale of certain of the Debtors’ Ventilation Assets.
PLEASE TAKE FURTHER NOTICE that, as set forth more fully in that certain asset
purchase agreement, attached hereto as Exhibit A (the “Zoll Asset Purchase Agreement”), entered
into with Zoll in connection with the sale of such Ventilation Assets (the “Acquired Assets”),
between the Debtors (collectively, the “Sellers”) and the Purchaser, the Successful Bid provides,
among other things and as set forth in the Zoll Asset Purchase Agreement, cash consideration in
the amount of $37.00 million and the assumption of certain liabilities in exchange for the Acquired
Assets. Further, the Back-Up Bid submitted by the Back-Up Bidder provides for, among other
things, cash consideration in the amount of $24.24 million and the assumption of certain liabilities
in exchange for certain of the Ventilation Assets.
PLEASE TAKE FURTHER NOTICE that the Debtors have determined to effectuate the
Sale Transaction as reflected in the Zoll Asset Purchase Agreement.
PLEASE TAKE FURTHER NOTICE that the proposed form of order that the Debtors
will seek to have the Court enter to authorize the Sale Transaction under the Zoll Asset Purchase
Agreement is attached hereto as Exhibit B. The Debtors reserve the right to modify such proposed
order prior to the Sale Hearing.
PLEASE TAKE FURTHER NOTICE that the Debtors will seek approval of the Sale
Transaction of these Assets to the Purchaser at the Sale Hearing scheduled to commence on
August 19, 2024, at 11:00 a.m. (prevailing Eastern Time) before the Honorable Judge
Brendan L. Shannon, United States Bankruptcy Judge for the Bankruptcy Court for the District of
Delaware, at 824 North Market Street, 6th Floor, Courtroom No. 1, Wilmington, Delaware 19801.
The Sale Hearing may be adjourned by announcement in open Court or on the Court’s calendar
without any further notice required.
PLEASE TAKE FURTHER NOTICE that, pursuant to the Bidding Procedures Order,
the Debtors, with the consent of the Required DIP Lenders, and in consultation with the
Committee, may adjourn any key dates and deadlines in the Bidding Procedures Order by filing a
notice with the Court reflecting any such changes.
PLEASE TAKE FURTHER NOTICE that objections specific to the Auction, but solely
as to (i) the conduct of the Auction, (ii) the particular terms of any proposed Sale Transaction of a
Successful Bid, or (iii) the identify of a Successful Bidder or Back-Up Bidder are due on or before
August 16, 2024, at 4:00 p.m. (prevailing Eastern Time) (the “Post-Auction Objection
Deadline”). Any such objection must be made in writing, state the basis of such objection with
specificity, and shall be filed with the Court, with a courtesy copy to chambers, and must be filed
no later than the Post-Auction Objection Deadline and must be served on the following parties:
(i) the Debtors, 26125 North Riverwoods Boulevard, Mettawa, Illinois, 60045; (ii) co-counsel for
the Debtors, Kirkland & Ellis LLP, 601 Lexington Avenue, New York, New York 10022,
Attn.: Joshua A. Sussberg, P.C. (joshua.sussberg@kirkland.com), Chris Ceresa
(chris.ceresa@kirkland.com), and Tiffani Chanroo (tiffani.chanroo@kirkland.com), and Kirkland
& Ellis LLP, 333 West Wolf Point Plaza, Chicago, Illinois 60654, Attn.: Spencer A. Winters, P.C.
2
Case 24-11217-BLS Doc 388 Filed 08/15/24 Page 3 of 92
(spencer.winters@kirkland.com) and Yusuf U. Salloum (yusuf.salloum@kirkland.com);
(iii) co˗counsel to the Debtors, Cole Schotz P.C., 500 Delaware Avenue, Suite 1410, Wilmington,
Delaware 19801, Attn: Patrick J. Reilley, Esq. (preilley@coleschotz.com), and Cole Schotz P.C.,
Court Plaza North, 25 Main Street, Hackensack, New Jersey 07601, Attn.: Michael D. Sirota, Esq.
(msirota@coleschotz.com); and (iv) the Debtors’ investment banker, PJT Partners LP, 280 Park
Avenue, New York, New York 10017, Attn: Michael Schlappig (schlappig@pjtpartners.com),
Jaimie Baird (baird@pjtpartners.com), and Dylan Friesner (friesner@pjtpartners.com). (v) counsel
to the 1L Ad Hoc Group, (i) Gibson, Dunn & Crutcher LLP, 200 Park Avenue, New York, NY
10166-0193, Attn.: Scott J. Greenberg (sgreenberg@gibsondunn.com), Jason Zachary Goldstein
(jgoldstein@gibsondunn.com), Joshua Brody (jbrody@gibsondunn.com), and Kevin Liang
(kliang@gibsondunn.com) and (ii) Pachulski Stang Ziehl & Jones LLP, 919 North Market Street,
17th Floor, Wilmington, DE 19801, Attn.: Laura Davis Jones (ljones@pszjlaw.com); (vi) counsel
to the Committee, McDermott Will & Emery LLP, One Vanderbilt Avenue, New York, NY
10017-3852, Attn: Darren Azman (dazman@mwe.com) and Kristin Going (kgoing@mwe.com)
and McDermott Will & Emery LLP, The Brandywine Building, 1000 N. West Street, Suite 1400,
Wilmington, Delaware 19801, Attn.: David Hurst (dhurst@mwe.com) and Maris Kandestin
(mkandestin@mwe.com); (vii) the Office of the United States Trustee, 844 King Street, Suite
2207, Lockbox 35, Wilmington, Delaware 19801, (viii) the United States Trustee, 844 King Street,
Suite 2207, Lockbox 35, Wilmington, Delaware 19801, Attn.: Benjamin A. Hackman
(benjamin.a.hackman@usdoj.gov); and (ix) any other party that has requested notice pursuant to
Bankruptcy Rule 2002 (such parties, collectively, the “Notice Parties”).
PLEASE TAKE FURTHER NOTICE that, except as otherwise set forth in the Bidding
Procedures Order, any objection to the adequate future performance of the applicable Successful
Bidder or Back-Up Bidder must: (a) be in writing, (b) state, with specificity, the legal and factual
bases thereof, and (c) be filed with the Court and served so as to be actually received by no later
than August 16, 2024 at 4:00 p.m. (prevailing Eastern Time) on the Notice Parties; provided
that, to the extent not consensually resolved, any such objection may be set for hearing at a date
and time following the Sale Hearing.
PLEASE TAKE FURTHER NOTICE that at the Sale Hearing, the Debtors will seek the
Court’s approval of the Successful Bid by the Purchaser. Unless the Court orders otherwise, the
Sale Hearing shall be an evidentiary hearing on matters relating to the Sale Transaction, and there
will be no further bidding at the Sale Hearing.
PLEASE TAKE FURTHER NOTICE that, unless an objection is timely filed regarding
the assumption or assignment to the Successful Bidder of a contract or lease, such contract or lease
shall be assumed and assigned to the Successful Bidder as of the applicable closing date of the
Sale Transaction (the “Assignment Date”).
PLEASE TAKE FURTHER NOTICE that this Successful Bidder Notice is subject to
the terms and conditions of the Bidding Procedures and the Bidding Procedures Order, with such
Bidding Procedures Order controlling in the event of any conflict, and the Debtors encourage
parties in interest to review such documents in their entirety.
3
Case 24-11217-BLS Doc 388 Filed 08/15/24 Page 4 of 92
PLEASE TAKE FURTHER NOTICE that you may obtain additional information
concerning the above-captioned chapter 11 cases at the website maintained in these
chapter 11 cases at https://omniagentsolutions.com/Vyaire.
4
Case 24-11217-BLS Doc 388 Filed 08/15/24 Page 5 of 92
Dated: August 15, 2024
Wilmington, Delaware
/s/ Patrick J. Reilley
COLE SCHOTZ P.C. KIRKLAND & ELLIS LLP
Patrick J. Reilley, Esq. (DE Bar No. 4451) KIRKLAND & ELLIS INTERNATIONAL LLP
500 Delaware Avenue, Suite 1410 Joshua A. Sussberg, P.C. (admitted pro hac vice)
Wilmington, Delaware 19801 601 Lexington Ave
Telephone: (302) 652-3131 New York, New York 10022
Facsimile: (302) 652-3117 Telephone: (212) 446-4800
Email: preilley@coleschotz.com Facsimile: (212) 446-4900
Email: joshua.sussberg@kirkland.com
- and -
- and -
Michael D. Sirota, Esq. (admitted pro hac vice)
Warren A. Usatine, Esq (admitted pro hac vice) Spencer A. Winters, P.C. (admitted pro hac vice)
Court Plaza North, 25 Main Street Yusuf U. Salloum (admitted pro hac vice)
Hackensack, New Jersey 07601 333 West Wolf Point Plaza
Telephone: (201) 489-3000 Chicago, Illinois 60654
Facsimile: (201) 489-1536 Telephone: (312) 862-2000
Email: msirota@coleschotz.com Facsimile: (312) 862-2200
wusatine@coleschotz.com Email: spencer.winters@kirkland.com
yusuf.salloum@kirkland.com
Co-Counsel to the Debtors Co-Counsel to the Debtors
and Debtors in Possession and Debtors in Possession
Case 24-11217-BLS Doc 388 Filed 08/15/24 Page 6 of 92
Exhibit A
Zoll Asset Purchase Agreement
Case 24-11217-BLS Doc 388 Filed 08/15/24 Page 7 of 92
DRAFT
ASSET PURCHASE AGREEMENT
DATED AS OF [●], 2024
BY AND AMONG
ZOLL MEDICAL CORPORATION, AS PURCHASER,
AND
VYAIRE HOLDING COMPANY
AND ITS SUBSIDIARIES NAMED HEREIN, AS SELLERS
305035101 v23
Case 24-11217-BLS Doc 388 Filed 08/15/24 Page 8 of 92
TABLE OF CONTENTS
Page
ARTICLE I PURCHASE AND SALE OF THE ACQUIRED ASSETS;
ASSUMPTION OF ASSUMED LIABILITIES ............................................................. 6
Section 1.1 Purchase and Sale of Acquired Assets ........................................................ 6
Section 1.2 Excluded Assets .......................................................................................... 8
Section 1.3 Assumption of Certain Liabilities ............................................................. 10
Section 1.4 Excluded Liabilities .................................................................................. 11
Section 1.5 Assumption/Rejection of Certain Contracts ............................................. 13
Section 1.6 Certain Non-Debtors. ................................................................................ 17
ARTICLE II CONSIDERATION; PAYMENT; CLOSING.................................................. 17
Section 2.1 Consideration; Payment ............................................................................ 17
Section 2.2 Deposit ...................................................................................................... 18
Section 2.3 Closing ...................................................................................................... 19
Section 2.4 Closing Deliveries by Sellers .................................................................... 19
Section 2.5 Closing Deliveries by Purchaser ............................................................... 20
Section 2.6 Withholding .............................................................................................. 20
ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLERS....................... 21
Section 3.1 Organization and Qualification ................................................................. 21
Section 3.2 Authorization of Agreement ..................................................................... 21
Section 3.3 Conflicts; Consents ................................................................................... 22
Section 3.4 Equity Interests of Acquired Entities ........................................................ 22
Section 3.5 Financial Statements ................................................................................. 23
Section 3.6 Title to Properties...................................................................................... 23
Section 3.7 Contracts ................................................................................................... 24
Section 3.8 No Litigation ............................................................................................. 26
Section 3.9 Permits; Compliance with Laws; Regulatory Matters .............................. 26
Section 3.10 Environmental Matters.............................................................................. 30
Section 3.11 Intellectual Property .................................................................................. 30
Section 3.12 Data Privacy and Security ......................................................................... 32
Section 3.13 Tax Matters ............................................................................................... 33
Section 3.14 Employee Benefit Plans ............................................................................ 35
Section 3.15 Employees ................................................................................................. 36
Section 3.16 Insurance ................................................................................................... 37
Section 3.17 Affiliate Transactions................................................................................ 37
Section 3.18 Sufficiency of Assets ................................................................................ 37
Section 3.19 Brokers ...................................................................................................... 37
Section 3.20 Critical Technology .................................................................................. 37
Section 3.21 Absence of Certain Changes ..................................................................... 38
Section 3.22 No Other Representations or Warranties .................................................. 38
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PURCHASER ................ 38
Section 4.1 Organization and Qualification ................................................................. 38
305035101 v23
Case 24-11217-BLS Doc 388 Filed 08/15/24 Page 9 of 92
TABLE OF CONTENTS
(continued)
Page
Section 4.2 Authorization of Agreement ..................................................................... 39
Section 4.3 Conflicts; Consents ................................................................................... 39
Section 4.4 Financing................................................................................................... 40
Section 4.5 Brokers ...................................................................................................... 40
Section 4.6 No Litigation ............................................................................................. 40
Section 4.7 Investment Representation; Investigation ................................................. 40
Section 4.8 Certain Arrangements ............................................................................... 40
Section 4.9 Solvency .................................................................................................... 41
Section 4.10 WARN Act and Mass Layoffs .................................................................. 41
Section 4.11 No Additional Representations or Warranties .......................................... 41
ARTICLE V BANKRUPTCY COURT MATTERS ............................................................... 41
Section 5.1 Bankruptcy Actions .................................................................................. 41
Section 5.2 Cure Costs ................................................................................................. 43
Section 5.3 Sale Order ................................................................................................. 43
Section 5.4 Approval ................................................................................................... 43
ARTICLE VI COVENANTS AND AGREEMENTS.............................................................. 44
Section 6.1 Conduct of the Business of Sellers ........................................................... 44
Section 6.2 Access to Information ............................................................................... 47
Section 6.3 Employee Matters ..................................................................................... 49
Section 6.4 Regulatory Approvals ............................................................................... 51
Section 6.5 Reasonable Efforts; Cooperation .............................................................. 51
Section 6.6 Further Assurances.................................................................................... 52
Section 6.7 Insurance Matters ...................................................................................... 52
Section 6.8 Receipt of Misdirected Assets; Liabilities ................................................ 52
Section 6.9 Acknowledgment by Purchaser ................................................................ 53
Section 6.10 Guaranty .................................................................................................... 55
Section 6.11 Releases..................................................................................................... 56
Section 6.12 Vyaire Guarantees ..................................................................................... 57
Section 6.13 Lien Releases ............................................................................................ 57
Section 6.14 401(k) Plan Termination ........................................................................... 58
Section 6.15 Acquired Intellectual Property Title ......................................................... 58
Section 6.16 Domain Names.......................................................................................... 58
Section 6.17 Acquired Cash Amount............................................................................. 58
Section 6.18 Mixed-Use Contracts ................................................................................ 58
Section 6.19 Purchase Price Allocation ......................................................................... 58
Section 6.20 Restructuring Transactions ....................................................................... 58
Section 6.21 Seller Names ............................................................................................. 58
Section 6.22 Schedule 1.6 .............................................................................................. 59
ARTICLE VII CONDITIONS TO CLOSING ........................................................................ 60
Section 7.1 Conditions Precedent to the Obligations of Purchaser and Sellers ........... 60
3
Case 24-11217-BLS Doc 388 Filed 08/15/24 Page 10 of 92
TABLE OF CONTENTS
(continued)
Page
Section 7.2 Conditions Precedent to the Obligations of Purchaser ............................. 60
Section 7.3 Conditions Precedent to the Obligations of Sellers .................................. 60
Section 7.4 Waiver of Conditions ................................................................................ 61
ARTICLE VIII TERMINATION ............................................................................................. 61
Section 8.1 Termination of Agreement ........................................................................ 61
Section 8.2 Effect of Termination ................................................................................ 63
ARTICLE IX TAXES................................................................................................................. 63
Section 9.1 Transfer Taxes .......................................................................................... 63
Section 9.2 Allocation of Purchase Price ..................................................................... 63
Section 9.3 Cooperation ............................................................................................... 64
Section 9.4 Preparation of Tax Returns and Payment of Taxes .................................. 64
Section 9.5 Intended Tax Treatment ............................................................................ 65
Section 9.6 Straddle Period .......................................................................................... 65
Section 9.7 Transferred Employees ............................................................................. 66
ARTICLE X MISCELLANEOUS ............................................................................................ 66
Section 10.1 Non-Survival of Representations and Warranties and Certain
Covenants; Certain Waivers ................................................................................. 66
Section 10.2 Expenses ................................................................................................... 66
Section 10.3 Notices ...................................................................................................... 67
Section 10.4 Binding Effect; Assignment; Designated Purchasers ............................... 68
Section 10.5 Amendment and Waiver ........................................................................... 68
Section 10.6 Third Party Beneficiaries .......................................................................... 68
Section 10.7 Non-Recourse ........................................................................................... 68
Section 10.8 Severability ............................................................................................... 69
Section 10.9 Construction .............................................................................................. 69
Section 10.10 Schedules .................................................................................................. 69
Section 10.11 Complete Agreement ................................................................................ 70
Section 10.12 Specific Performance ................................................................................ 70
Section 10.13 Jurisdiction and Exclusive Venue ............................................................. 70
Section 10.14 Governing Law; Waiver of Jury Trial ...................................................... 71
Section 10.15 No Right of Set-Off .................................................................................. 71
Section 10.16 Counterparts and PDF ............................................................................... 72
Section 10.17 Publicity .................................................................................................... 72
Section 10.18 Bulk Sales Laws ........................................................................................ 72
Section 10.19 Sellers’ Representative.............................................................................. 72
ARTICLE XI ADDITIONAL DEFINITIONS AND INTERPRETIVE MATTERS .......... 73
Section 11.1 Certain Definitions .................................................................................... 73
Section 11.2 Index of Defined Terms ............................................................................ 82
4
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TABLE OF CONTENTS
(continued)
Page
Section 11.3 Rules of Interpretation .............................................................................. 83
INDEX OF EXHIBITS
Exhibit A Form of Bill of Sale and Assignment and Assumption Agreement
Exhibit B Form of Intellectual Property Assignment Agreement
Exhibit C Form of Sale Order
Exhibit D Form of Transition Services Agreement
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (this “Agreement”), dated as of [●], 2024, is made by and
among ZOLL Medical Corporation, a Massachusetts corporation (“Purchaser” or, subject to
Section 10.4(b), “Guarantor”), and Vyaire Holding Company, a Delaware corporation (as in
existence on the date hereof, as a debtor-in-possession, and as a reorganized as a Debtor, as
applicable, “Vyaire”) and the Subsidiaries of Vyaire that are indicated on the signature pages
attached hereto (together with Vyaire, each a “Seller” and collectively “Sellers”). Purchaser and
Sellers are referred to herein individually as a “Party” and collectively as the “Parties”. Capitalized
terms used herein shall have the meanings set forth herein including Article XI.
WHEREAS, on June 9, 2024, Sellers, together with certain of Sellers’ Subsidiaries and
Affiliates, commenced voluntary cases under chapter 11 of title 11 of the United States Code, 11
U.S.C. §§ 101-1532 (the “Bankruptcy Code”), in the United States Bankruptcy Court for the
District of Delaware (the “Bankruptcy Court”), which cases are jointly administered for procedural
purposes under Case No. 24-11217 (collectively, the “Bankruptcy Cases”); and
WHEREAS, Purchaser desires to purchase the Acquired Assets and assume the Assumed
Liabilities from Sellers, and Sellers desire to sell, convey, assign, and transfer to Purchaser the
Acquired Assets together with the Assumed Liabilities, in a sale authorized by the Bankruptcy
Court pursuant to, inter alia, sections 105, 363 and 365 of the Bankruptcy Code, in accordance
with the other applicable provisions of the Bankruptcy Code and the Federal Rules of Bankruptcy
Procedure and the local rules for the Bankruptcy Court, all on the terms and subject to the
conditions set forth in this Agreement and subject to the entry and terms of the Sale Order;
WHEREAS, Sellers have certain Subsidiaries and Affiliates that are not debtors-in-
possession in the Bankruptcy Cases and not subject to the jurisdiction of the Bankruptcy Court,
but which possess certain assets (including executory Contracts) that are necessary for the
operation of the Business (collectively, the “Non-Debtors”); and
NOW, THEREFORE, in consideration of the foregoing and the mutual representations,
warranties, covenants, and agreements set forth herein, intending to be legally bound hereby, the
Parties hereby agree as follows.
5
Case 24-11217-BLS Doc 388 Filed 08/15/24 Page 12 of 92
ARTICLE I
PURCHASE AND SALE OF THE ACQUIRED ASSETS;
ASSUMPTION OF ASSUMED LIABILITIES
Section 1.1 Purchase and Sale of Acquired Assets. Pursuant to sections 105, 363 and
365 of the Bankruptcy Code, on the terms and subject to the conditions set forth herein and in the
Sale Order, at the Closing, Sellers shall sell, transfer, assign, convey, and deliver to Purchaser, and
Purchaser shall purchase, acquire, and accept from Sellers, all of Sellers’ right, title and interest in
and to, as of the Closing, the Acquired Assets, free and clear of all Encumbrances other than
Permitted Encumbrances. “Acquired Assets” means all of the properties, rights, interests and other
assets that are (i) Related to the Acquired Business, including each of the assets as are identified
below and (ii) otherwise Related to the Entire Business and specifically identified below, in each
case, held by a Seller as of the Closing, whether tangible or intangible, real, personal, or mixed,
wherever located and whether or not required to be reflected on a balance sheet prepared in
accordance with GAAP, including any such properties, rights, interests, and other assets acquired
by any Seller after the date hereof and prior to the Closing that are Related to the Acquired
Business, but excluding in all cases the Excluded Assets:
(a) (i) all Contracts Related to the Acquired Business or related to the Acquired
Intellectual Property (as defined below), in each case, that are listed on Schedule 1.1(a), which
Schedule 1.1(a) may be updated by Purchaser pursuant to Section 1.5, including all purchase
orders or similar instruments entered into under such Contracts, but, in all cases, excluding Leases
(which are addressed in Section 1.1(e)) and (ii) all Contracts that are Related to the Acquired
Business and entered into after the date hereof in accordance with Section 6.1(b) that either (a) are
previously approved by Purchaser or (b) do not include obligations in excess of $500,000 in the
aggregate (collectively, the “Assigned Contracts”) and all rights and interests of Seller (but not its
respective obligations) in, to and under any confidentiality, non-solicitation, or non-competition
or invention assignment agreements for Acquired Intellectual Property (but not employment
agreements) solely to the extent Related to the Entire Business and signed by former or current
employees of any Seller and other parties in favor of any Seller or its predecessors;
(b) the benefit of and all rights to enforce any covenants, warranties,
representations or guarantees under the Assigned Contracts;
(c) all accounts receivable, notes receivable, negotiable instruments and chattel
paper owing from Persons other than Sellers and their Affiliates in each case to the extent Related
to the Acquired Business, together with any unpaid interest or fees accrued thereon or other
amounts due with respect thereto;
(d) copies of all Documents that are Related to the Entire Business (including
copies of the Transferred Employee Records), but excluding from the foregoing any credit card
numbers or related customer payment sources, social security numbers, or other information to the
extent prohibited by Law;
(e) the Leased Real Property listed on Schedule 1.1(e) (the “Acquired Leased
Real Property” and the Lease governing any Acquired Leased Real Property, an “Acquired
6
Case 24-11217-BLS Doc 388 Filed 08/15/24 Page 13 of 92
Lease”), including any Leasehold Improvements and all permanent fixtures, improvements, and
appurtenances thereto;
(f) all tangible assets (including Equipment) of Sellers that are Related to the
Acquired Business, including the tangible assets of Sellers located at any Acquired Leased Real
Property and any such tangible assets on order to be delivered to any Seller; provided that, with
respect to any such tangible asset that is leased to any Seller, the lease agreement covering such
leased tangible asset is an Assigned Contract;
(g) all Equity Interests that any Seller owns in the Persons set forth on
Schedule 1.1(g) (the “Transferred Subsidiaries” and, together with the Subsidiaries of any
Transferred Subsidiary, the “Acquired Entities”);
(h) all rights against third parties (including customers, suppliers, vendors,
merchants, manufacturers and counterparties to any Assigned Contract) that are Related to the
Acquired Business or related to the Acquired Intellectual Property, including causes of action,
claims, counterclaims, defenses, credits, rebates (including any vendor or supplier rebates),
demands, allowances, refunds (other than Tax refunds or Tax attributes), causes of action, rights
of set off, rights of recovery, rights of recoupment or rights under or with respect to express or
implied guarantees, warranties, representations, covenants or indemnities made by such third
parties;
(i) to the extent transferable under applicable Law, all of the rights, interests
and benefits (if any) accruing under all Permits and Governmental Authorizations that are Related
to the Acquired Business, and all pending applications therefor;
(j) all Intellectual Property owned by the Sellers that is Related to the Entire
Business, all rights to collect royalties and proceeds in connection with such Intellectual Property
with respect to the period from and after the Closing, all rights to sue and recover for past, present
and future infringements, dilutions, misappropriations of, or other conflicts with, such Intellectual
Property and any and all corresponding rights that, now or hereafter, may be secured throughout
the world, including the Intellectual Property identified as being owned by Sellers and the
Acquired Entities and set forth on Schedule 3.11(a) (collectively, the “Acquired Intellectual
Property”);
(k) all Inventory and supplies of the Sellers that are Related to the Acquired
Business (other than any iX5 Inventory);
(l) all Inventory and supplies of the Sellers that relate specifically to the
following product lines of Sellers: Avea, Enve, ReVel, SiPap, and Vela;
(m) Product Names;
(n) all medical devices Related to the Acquired Business, including all FDA
premarket approvals and 510(k) clearances related thereto;
(o) (i) all other rights, claims, causes of action, rights of recovery, rights of set-
off, and rights of recoupment as of the Closing of any Seller, in each case, arising out of or relating
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to events occurring on or prior to the Closing Date to the extent related to any other Acquired
Assets; and (ii) all demands, credits, statements, allowances, refunds, rebates (including any
vendor or supplier rebates), rights (including under or with respect to express or implied
guarantees, warranties, representations, covenants and indemnities), claims, counterclaims,
defenses, credits, causes of action, rights of set-off, rights of recovery or rights of recoupment
relating to or arising against suppliers, vendors, merchants, manufacturers and counterparties to
leases, licenses or any Contract, arising out of or relating to events occurring on or prior to the
Closing Date to the extent related to any Acquired Assets (collectively, the “Transferred Claims”);
and
(p) all goodwill, payment intangibles and general intangible assets and rights
of Sellers that are Related to the Acquired Business.
Section 1.2 Excluded Assets. Notwithstanding anything to the contrary in this
Agreement, in no event shall Sellers be deemed to sell, transfer, assign, convey or deliver, and
Sellers shall retain all right, title and interest to, in and under (x) all properties, rights, interests and
other assets of Sellers that are not Related to the Acquired Business or the Acquired Intellectual
Property (unless expressly Scheduled as an Acquired Asset under Section 1.1) and (y) (without
duplication) the following properties, rights, interests and other assets of Sellers (including those
that are Related to the Entire Business) (collectively, the “Excluded Assets”):
(a) any properties, rights, interests and other assets expressly excluded pursuant
to Section 1.1;
(b) all Cash and Cash Equivalents of Sellers, all bank accounts, and all deposits
(including maintenance deposits, and security deposits for rent, electricity, telephone or otherwise)
or prepaid or deferred charges and expenses, including all lease and rental payments, that have
been prepaid by any Seller, and any retainers or similar amounts paid to Advisors or other
professional service providers in the Bankruptcy Cases;
(c) subject to Section 1.5, all Contracts that are not Assigned Contracts,
including the Contracts of Sellers listed on Schedule 1.2(c) (collectively, the “Excluded
Contracts”), which Schedule 1.2(c) may be updated by Purchaser pursuant to Section 1.5;
(d) except (solely in the cases of clauses (i) and (ii) below) with respect to any
Acquired Entity, all Documents (including information stored on the computer systems, data
networks or servers of any Seller) (i) to the extent they relate to any of the Excluded Assets or
Excluded Liabilities, (ii) that are Sellers’ financial accounting Documents, all minute books,
Organizational Documents, stock certificates or other Equity Interests instrument, stock registers
and such other books and records of any Seller, in each case, pertaining to the ownership,
organization or existence of such Seller, Tax Returns and records (and any related work papers),
corporate seal, checkbooks, and canceled checks, (iii) that any Seller is required by Law to retain
or (iv) that are governed under applicable Information Privacy and Security Laws that prohibit the
transfer or sale of Personal Information; provided that Purchaser shall have the right to make copies
of any reasonably relevant portions of such Documents (other than for Excluded Tax Returns) to
the extent not prohibited by applicable Law;
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(e) all documents prepared or received by any Seller or any of its Affiliates or
on their behalf in connection with the sale of the Acquired Assets, this Agreement or the other
Transaction Agreements, the Transactions, or the Bankruptcy Case and all documents that are
subject to attorney client privilege and the transfer of which to Purchaser would result in the waiver
of any such privilege;
(f) all Employee Benefit Plans of Seller and its Affiliates, and all rights,
interests, policies, and assets associated with all Employee Benefit Plans, including for the
avoidance of doubt all director and officer insurance policies (the “Excluded Insurance Policies”),
and all rights and benefits of any nature of Sellers or its Affiliates with respect thereto, including
all insurance recoveries thereunder and rights to assert claims with respect to any such insurance
recoveries;
(g) all Equity Interests of any Seller or any of their respective Subsidiaries or
any other Person, in all cases, other than any of the foregoing issued by any Acquired Entity;
(h) all Leased Real Property that is not Acquired Leased Real Property (the
“Excluded Leased Real Property”), including any Leasehold Improvements and all permanent
fixtures, improvements, and appurtenances thereto and all of the Leases underlying such Excluded
Leased Real Property (each such Lease, an “Excluded Lease”);
(i) (i) all preference or avoidance claims or actions arising under the
Bankruptcy Code or applicable Law, (ii) all other rights, claims, causes of action, rights of
recovery, rights of set-off, and rights of recoupment related to Excluded Assets as of the Closing
of any Seller or its Affiliates, in each case, arising out of or relating to events occurring on or prior
to the Closing Date, and (iii) all claims that any Seller or any of its Affiliates may have against any
Person with respect to any other Excluded Assets or any Excluded Liabilities;
(j) Sellers’ claims, causes of action or other rights under this Agreement,
including the Purchase Price hereunder, or any agreement, certificate, instrument, or other
document executed and delivered between any Seller or its Affiliates and Purchaser in connection
with the Transactions, or any other agreement between any Seller or its Affiliates and Purchaser
entered into on or after the date hereof;
(k) all Tax refunds, Tax attributes and Tax assets, other than Tax attributes that
transfer to Purchaser by automatic operation of law as a result of Purchaser acquiring the Acquired
Assets or Tax refunds solely to the extent such refunds relate to the Assumed Taxes;
(l) every asset of Sellers or their Affiliates that would otherwise constitute an
Acquired Asset (if owned immediately prior to the Closing) if conveyed or otherwise disposed of
during the period from the date hereof until the Closing Date (i) as inventory in the Ordinary
Course, (ii) as authorized by the Bankruptcy Court, and with the express consent of Purchaser, or
(iii) as permitted by Section 6.1 of this Agreement;
(m) solely with respect to Excluded Contracts, and except as set forth in
Section 1.1(k) and other than the Transferred Claims, all demands, credits, statements, allowances,
refunds, rebates (including any vendor or supplier rebates), rights (including under or with respect
to express or implied guarantees, warranties, representations, covenants and indemnities), claims,
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counterclaims, defenses, credits, causes of action, rights of set off, rights of recovery or rights of
recoupment relating to or arising against suppliers, vendors, merchants, manufacturers and
counterparties to Leases, licenses or any Contract, arising out of or relating to events occurring on
or prior to the Closing Date;
(n) all Permits that are not assignable or that are not permitted to be transferred
to Purchaser, in each case under applicable Law;
(o) Seller Names;
(p) the properties, rights, interests and assets set forth on Schedule 1.2(p);
(q) all iX5 Inventory; and
(r) Internet domain names that include or incorporate Seller Names.
Section 1.3 Assumption of Certain Liabilities. On the terms and subject to the
conditions set forth herein and in the Sale Order, effective as of the Closing, in addition to the
payment of the Cash Payment in accordance with Section 2.1, Purchaser shall irrevocably assume
from each Seller (or with respect to Taxes, if applicable, from such Seller’s applicable Affiliate)
(and from and after the Closing pay, perform, discharge, or otherwise satisfy in accordance with
their respective terms), and Sellers (or with respect to Taxes, if applicable, Sellers’ applicable
Affiliate) shall irrevocably transfer, assign, convey, and deliver to Purchaser, only the following
Liabilities, without duplication and only to the extent not paid prior to the Closing (collectively,
the “Assumed Liabilities”):
(a) all Liabilities and obligations of any Seller under the Assigned Contracts
that become due from and after the Closing;
(b) all cure costs required to be paid pursuant to Section 365 of the Bankruptcy
Code in connection with the assignment and assumption of the Assigned Contracts (the “Cure
Costs”) up to an amount not to exceed $5,000,000 (the “Cure Cost Cap”), with Seller to pay any
necessary Cure Costs in excess of the Cure Cost Cap;
(c) all Liabilities (including all government charges or fees) arising out of the
ownership or operation of the Acquired Assets or the Business, from and after the Closing Date;
(d) all Liabilities relating to amounts required to be paid, or actions required to
be taken or not to be taken, by Purchaser under this Agreement and all Transfer Taxes allocated to
Purchaser under Section 9.1;
(e) one hundred percent (100%) of all current Liabilities set forth on Schedule
1.3(e), but in no event exceeding an aggregate sum of $8,000,000, such payments to be made after
consultation with Purchaser;
(f) without duplication: (i) all Liabilities for Taxes of or with respect to the
Acquired Assets, the Assumed Liabilities, or the Business for any Post-Closing Tax Period; and
(ii) all accrued but not yet paid employee wage withholding, payroll Tax, and other ordinary course
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operational Liabilities in respect of Taxes relating to or arising in respect of the Transferred
Employees solely to the extent such wages relate to any Post-Closing Tax Period (such Taxes
described in prongs (i) through (ii), “Assumed Taxes”);
(g) all Liabilities under Environmental Law that are Related to the Acquired
Business or otherwise related to the Acquired Assets and that arise or occur on or after the Closing
Date;
(h) all Liabilities arising under Section 503(b)(9) of the Bankruptcy Code that
are Related to the Acquired Business;
(i) all Liabilities relating to the Transferred Employees arising following the
Closing, as well as all pre-Closing accrued unused vacation, sick days and personal days of such
Transferred Employees and all final payroll amounts accrued since the preceding regular payroll
period date and owed as of the Closing for such Transferred Employees together with the employer
portion of any payroll or other employment Tax in respect of such amounts;
(j) all Liabilities relating to the Inventory in-transit to Vyaire B.V. to the extent
set forth on Schedule 1.3(j);
(k) all Liabilities relating to the non-Tax related accounts payable outside of the
United States to the extent set forth on Schedule 1.3(k); and
(l) all Liabilities agreed to be assumed by Purchaser or for which Purchaser has
agreed to be responsible, in each case, pursuant to the express terms of this Agreement.
Section 1.4 Excluded Liabilities. Notwithstanding any other provision of this
Agreement to the contrary, Purchaser is only assuming the Assumed Liabilities and is not assuming
any other claim against or Liability or other obligation of Sellers or any predecessor of any Seller
of whatever nature, whether presently in existence or arising hereafter. Purchaser shall not assume,
be obligated to pay, perform or otherwise discharge or in any other manner be liable or responsible
for any Liabilities of, or Action against, any Seller of any kind or nature whatsoever, whether
absolute, accrued, contingent or otherwise, liquidated or unliquidated, due or to become due,
known or unknown, currently existing or hereafter arising, matured or unmatured, direct or
indirect, and however arising, whether existing on the Closing Date or arising thereafter as a result
of any act, omission, or circumstances taking place prior to the Closing, other than the Assumed
Liabilities (all such Liabilities that are not Assumed Liabilities being referred to collectively herein
as the “Excluded Liabilities”). Purchaser hereby acknowledges and agrees that no Liability of any
Acquired Entity following the Restructuring Transactions shall be an Excluded Liability and that
all Liabilities of any Acquired Entity following the Restructuring Transactions as of the Closing
shall continue to be the Liabilities of such Acquired Entity following the Closing. Without limiting
the generality of the foregoing, the Excluded Liabilities shall include the following Liabilities of
Sellers:
(a) all Liabilities related to any Excluded Assets;
(b) (i) all Liabilities for Taxes of or with respect to the Acquired Assets, the
Assumed Liabilities, or the Business for any Pre-Closing Tax Periods; (ii) all Taxes of or with
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respect to the Excluded Assets or Excluded Liabilities for any taxable period (for the avoidance of
doubt, including without duplication (A) any Taxes of any Seller relating to a Pre-Closing Tax
Period (for the avoidance of doubt, calculated in accordance with Section 9.6 and including any
such Taxes the payment of which has been deferred until a Post-Closing Tax Period), and (B)
Taxes of any Seller that becomes a Liability of Purchaser under any common law doctrine of de
facto merger or transferee or successor liability, by operation of Contract or Law or otherwise, and
(iii) all accrued but not yet paid employee wage withholding, payroll Tax, and other ordinary
course operational Liabilities in respect of Taxes relating to or arising in respect of the Transferred
Employees for any Pre-Closing Tax Periods;
(c) all Liabilities relating to the Transferred Employees other than the
Liabilities provided for in Section 1.3(i) and (except to the extent attributable to an Acquired
Entity) all other employees of Sellers and their Subsidiaries arising prior to Closing, including
Liabilities relating to such Transferred Employees employment with any Seller or otherwise
arising under Employee Benefit Plans, all Liabilities arising prior to Closing that could transfer to
Purchaser under the Transfer Regulations and Liabilities arising under Seller’s failure to comply
with information and consultation obligations under the Transfer Regulations;
(d) all Liabilities relating to any Person currently or formerly engaged or
employed by Sellers other than the Liabilities provided for in Section 1.3(i), including all such
Liabilities of Sellers with respect to Employee Benefit Plans (exclusive of Acquired Entity Benefit
Plan) and all Liabilities thereunder, accrued and unpaid wages, accrued and unused vacation, sick
days, and personal days, any severance pay or benefits arising with respect to such Person(s), other
payments earned but not paid under any incentive or bonus plan or arrangement of Sellers, and
any such Person (other than a Transferred Employee or an employee of an Acquired Entity)
alleging that their employment or engagement has or should have transferred to Purchaser or an
Affiliate of Purchaser;
(e) all obligations under COBRA with respect to each current or former
Business Employee (or their eligible spouses or dependents) other than solely to the extent required
by 26 C.F.R. § 54.4980B-9, any M&A qualified beneficiaries in respect of the Transactions within
the meaning of 26 C.F.R. § 54.4980B-9;
(f) all Liabilities under Environmental Law that are Related to the Entire
Business to the extent first arising or existing prior to the Closing Date;
(g) all Liabilities relating to any claims for infringement, dilution,
misappropriation, unfair or deceptive trade practices or any other violation of or by Sellers’ or the
operation of the Business or any international businesses and Intellectual Property rights arising
from Sellers’ operation of the Business, or ownership or use of the Acquired Assets or Excluded
Assets, prior to the Closing Date, including all causes of actions or claims against Sellers in respect
of any violation, infringement or misappropriation of any Intellectual Property rights, whether
arising under a Contract or otherwise
(h) except with respect to Cure Costs up to the Cure Cost Cap, all Liabilities
arising as a result of any claim initiated at any time, to the extent Related to the Acquired Business
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or the Acquired Assets on or prior to the Closing Date, including any stockholder or shareholder
Actions, Actions for breach of contract, or any tort Actions;
(i) all Liabilities with respect to any costs and expenses (including all legal,
accounting, financial advisory, valuation, investment banking and other third-party advisory or
consulting fees and expenses) incurred by or on behalf of each Seller or its Affiliates in connection
with the Bankruptcy Cases or the Transactions;
(j) all Liabilities incurred in the businesses of Sellers prior to the Closing and
all Liabilities under, arising out of or relating to the Acquired Assets on or prior to the Closing, or
the use, ownership, operation, or lease of the Acquired Assets on or prior to the Closing, in each
case, other than the Cure Costs up to the Cure Cost Cap (whether or not set forth on any disclosure
schedule to this Agreement or otherwise), including any Liabilities related to items disclosed on
Schedule 3.6(c), Schedule 3.7(a), Schedule 3.7(b), Schedule 3.8, Schedule 3.9(j), and
Schedule 3.16;
(k) all Liabilities of Sellers for any funded indebtedness or indebtedness for
borrowed money;
(l) all Liabilities of Sellers based on successor liability theories, including
product liability claims;
(m) all Liabilities of Sellers related to, or arising out of, any Excluded Contracts
and Excluded Leases;
(n) all Liabilities of Sellers for Encumbrances related to utilities;
(o) all Liabilities of Sellers related to the Worker Adjustment and Retraining
Notification Act of 1988 or any similar Laws (“WARN Act”), to the extent applicable, for any
action resulting from separation of employment of any of the Business Employees by Sellers; and
(p) all Liabilities of Sellers based on any personal injury claims;
provided that in the event of any conflict between the terms of Section 1.3 and this Section 1.4,
the terms of Section 1.3 shall control.
Section 1.5 Assumption/Rejection of Certain Contracts.
(a) Assumption and Assignment of Executory Contracts. Schedule 1.5(a) sets
forth a list of all executory Contracts (including all Leases with respect to Leased Real Property)
to which, to the Knowledge of Sellers, one or more Sellers are party or to which any of their assets
are bound and which are Related to the Acquired Business. From time to time as requested by
Purchaser, Sellers shall update Schedule 1.5(a) no later than three (3) Business Days prior to
Closing. Sellers shall provide timely and proper written notice of a proposed Sale Order to all
parties to any executory Contracts or unexpired Leases to which any Seller is a party and take all
other actions reasonably necessary or otherwise required to cause such Contracts to be assumed
by Sellers and assigned to Purchaser pursuant to Section 365 of the Bankruptcy Code to the extent
that such Contracts are Assigned Contracts at Closing, including (x) serving on all non-Seller
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counterparties to all of their Contracts a notice specifically stating that Sellers are or may be
seeking the assumption and assignment of such Contracts and of the deadline for objecting to the
Cure Costs or any other aspect of the proposed assumption and assignment of their Contracts to
Purchaser and (y) taking, as promptly as practicable, all other actions reasonably requested by
Purchaser to facilitate any negotiations with the counterparties to such Assigned Contracts and to
obtain an Order (in accordance with the terms of the Bidding Procedures and Sale Order), resulting
in the satisfaction of all applicable requirements of section 365 of the Bankruptcy Code. The Sale
Order shall provide that as of and conditioned on the occurrence of the Closing, the applicable
Sellers shall assume and assign or cause to be assigned to Purchaser, as applicable, the Assigned
Contracts, each of which shall be identified by the name or appropriate description and date of the
Assigned Contract (if available), the other party to the Assigned Contract and the address of such
party for notice purposes, all included in a notice filed with the Bankruptcy Court. Such notice
shall also set forth Sellers’ good faith estimate of the amounts necessary to cure any defaults under
each of the Assigned Contracts as determined by Sellers based on their books and records or as
otherwise determined by the Bankruptcy Court. At the Closing, Sellers shall, pursuant to the Sale
Order, and the Assignment and Assumption Agreement(s) assume and assign to Purchaser (the
consideration for which is included in the Purchase Price), all Assigned Contracts that may be
assigned by any such Seller to Purchaser pursuant to sections 363 and 365 of the Bankruptcy Code,
subject to adjustment pursuant to Section 1.1(b). At the Closing, Purchaser shall, subject to
Section 1.3(b), (i) pay all Cure Costs up to the Cure Cost Cap and (ii) assume, and thereafter in
due course and in accordance with its respective terms pay, fully satisfy, discharge and perform
all of the obligations under each Assigned Contract pursuant to Section 365 of the Bankruptcy
Code.
(b) In the event Sellers become aware of any unexpired Contract that has not
been rejected or otherwise assumed and assigned to another party, and that was not previously
disclosed to Purchaser as required under this Agreement, at any time prior to or following Closing,
Sellers shall provide prompt notice to Purchaser of such Contract and Purchaser shall notify Sellers
in writing (email to counsel being sufficient) within ten (10) Business Days whether it intends to
designate such Contract an Assigned Contract. Seller shall take all steps necessary pursuant to the
terms of this Agreement and Sale Order for such Contract that Seller received timely notice from
Purchaser to be assumed by Seller and assigned to Purchaser, subject to the provisions of the
Bankruptcy Code and any applicable plan related to the Seller’s Bankruptcy Case.
(c) Between the date of the entry of the Sale Order and the Closing (or earlier
termination of this Agreement), Sellers shall use reasonable efforts to facilitate introductions for
Purchaser to the relevant contact persons at the counterparties to the Assigned Contracts to the
extent reasonably requested by Purchaser.
(d) Mixed-Use Contracts. The Parties acknowledge that Sellers or their
respective Subsidiaries are parties to certain Contracts listed on Schedule 1.5(a) and designated
with an asterisk are Mixed-Use Contracts. Sellers and Purchaser shall cooperate and use their
respective commercially reasonable efforts to obtain from the unaffiliated counterparty to any
Mixed-Use Contract, on terms that are reasonably acceptable to Sellers, Purchaser, and, to the
extent applicable, the purchaser of any Excluded Assets, an amendment (with assignment) or
consent to separate such Mixed-Use Contract into two separate Contracts, (i) one of which (any
such arrangement, a “Purchaser Separated Contract”) would be for the benefit of Purchaser
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containing the respective rights and obligations of the Business under such Mixed-Use Contract,
such that, at or after the Closing, Purchaser will be the beneficiary of such rights and will be
responsible for such obligations under such Mixed-Use Contract and (ii) the other one of which
would be unrelated to the Acquired Business, the Acquired Assets, or the Assumed Liabilities and
would be an Excluded Contract; provided that obtaining Purchaser Separated Contracts is not a
condition to the Closing. From and after the time in which any such Purchaser Separated Contract
is put in place (either before or after the Closing) with such unaffiliated third party, such Purchaser
Separated Contract shall be deemed an Assigned Contract. Sellers shall not be required to enter
into any Purchaser Separated Contract, or any other Contract related to a Mixed-Use Contract that
would have the effect of increasing administrative claims in the Bankruptcy Cases. This
Section 1.5(d) (and not Section 6.5 or Section 6.6) sets forth Sellers’ sole obligations with respect
to Mixed-Use Contracts and potential Purchaser Separated Contracts, and the condition set forth
in Section 7.2(b), as it applies to Sellers’ obligations with respect to Mixed-Use Contracts and
potential Purchaser Separated Agreements or under this Section 1.5(d), shall be deemed satisfied
unless the failure to obtain a material number of Purchaser Separated Contracts is a direct result of
Section 1.5(d) uncured breach of their obligations under this Section 1.5(d).
(e) Excluding or Adding Assigned Contracts Prior to Closing. Purchaser shall
have the right to notify Sellers in writing of any Assigned Contract (other than purchase orders
entered into following the date of this Agreement in accordance with Section 6.1(b)(xiv)) that it
does not wish to assume or a Contract that is Related to the Entire Business (other than any Mixed-
Use Contract) to which any Seller is a party that Purchaser wishes to add as an Assigned Contract
at any time up to two (2) Business Days prior to the Closing (as defined in the Bidding Procedures
Order), and (i) any such previously considered Assigned Contract that Purchaser no longer wishes
to assume shall be automatically deemed removed from the Schedules related to Assigned
Contracts and automatically deemed added to the Schedules related to Excluded Contracts, in each
case, without any adjustment to the Purchase Price, and (ii) any such previously considered
Excluded Contract that is Related to the Entire Business (other than any Mixed-Use Contract) that
Purchaser wishes to assume as an Assigned Contract shall be automatically deemed added to the
Schedules related to Assigned Contracts, automatically deemed removed from the Schedules
related to Excluded Contracts, and assumed by the applicable Seller to sell and assign to Purchaser,
in each case, without any adjustment to the Purchase Price. Purchaser shall be solely responsible
for the payment, performance and discharge when due of the Liabilities under the Assigned
Contracts arising or that are otherwise payable from the time of and after the Closing.
(f) Non-Assignment.
(i) Notwithstanding anything to the contrary in this Agreement, a
Contract shall not be assigned to, or assumed by, Purchaser to the extent that such Contract
is terminated by a Seller or its Affiliates in accordance with the provisions of
Section 6.1(b), or any other party thereto, or terminates or expires by its terms, on or prior
to such time as it is to be assumed by Purchaser as an Assigned Contract hereunder and is
not continued or otherwise extended upon assumption.
(ii) Notwithstanding anything to the contrary in this Agreement, to the
extent an Acquired Asset requires a Consent or Governmental Authorization (other than,
and in addition to and determined after giving effect to any Order of the Bankruptcy Court,
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including the Sale Order) in order to permit the sale or transfer to Purchaser of the
applicable Seller’s right, title and interest in and to such asset, and such Consent or
Governmental Authorization has not been obtained prior to such time as such right, title
and interest is to be transferred by Purchaser hereunder, such asset shall not be transferred
to, or received by, Purchaser at the Closing. If any Acquired Asset is deemed not to be
assigned pursuant to this clause (ii), the Closing shall nonetheless take place subject to the
terms and conditions set forth herein and, thereafter, through the earlier of (x) such time as
such Consent or Governmental Authorization is obtained and (y) six months following the
Closing (or the closing of the Bankruptcy Cases or dissolution of the applicable Seller(s),
if earlier), Sellers and Purchaser shall (A) use reasonable best efforts to secure such
Consent or Governmental Authorization as promptly as practicable after the Closing and
(B) cooperate in good faith in any lawful and commercially reasonable arrangement
reasonably proposed by Purchaser, including subcontracting, licensing, or sublicensing to
Purchaser any or all of any Seller’s rights and obligations with respect to any such Acquired
Asset, under which (1) Purchaser shall obtain (without infringing upon the legal rights of
such third party or violating any Law) the economic rights and benefits (net of the amount
of any related Tax costs imposed on Sellers or their respective Affiliates or any direct costs
associated with the retention and maintenance of such Acquired Asset incurred by any
Seller or its Affiliates) with respect to such Acquired Asset with respect to which the
Consent or Governmental Authorization has not been obtained and (2) Purchaser shall
assume and timely discharge any related burden and obligation with respect to such
Acquired Asset. Upon satisfying any requisite Consent or Governmental Authorization
requirement applicable to such Acquired Asset after the Closing, the applicable Seller’s
right, title and interest in and to such Acquired Asset shall promptly be transferred and
assigned to Purchaser in accordance with the terms of this Agreement, the Sale Order and
the Bankruptcy Code. Notwithstanding anything herein to the contrary, (x) the provisions
of this Section 1.5(f) shall not apply to any Consent or approval required under any Foreign
Competition Laws, if applicable, which Consent or approval shall be governed by
Section 6.4 and (y) no Seller will be obligated to pay any consideration therefor to any third
party from whom Consent or Governmental Authorization is requested or to initiate any
litigation to obtain any such Consent or Governmental Authorization.
(iii) Upon objection by the non-debtor Contract counterparty to the
proposed Cure Costs asserted by Sellers with regard to any Assigned Contract (such
Contract, a “Disputed Contract”) Sellers shall use commercially reasonable efforts to
consensually resolve the objection of such party or litigate such objection (at Purchaser’s
expense if after Closing). In no event shall any Seller settle a Cure Costs objection with
regard to any Disputed Contract without the express written consent of Purchaser, which
shall not be unreasonably withheld (with an email consent being sufficient), provided that
Sellers shall attempt to settle Disputed Contracts in the order in which is requested by
Purchaser. Notwithstanding the foregoing, in the event that Cure Costs exceed the Cure
Cost Cap, in no event shall any Seller settle any such excess Cure Costs without first
consulting with the Purchaser (but Purchaser may not direct such Cure Costs and no
Purchaser consent shall be required to settle such Cure Costs). Upon entry of an Order
determining any Cure Costs regarding any Disputed Contract (which may be the Bidding
Procedures Order or Sale Order), Purchaser shall have the option to designate the Disputed
Contract as an Excluded Asset, in which case, for the avoidance of doubt, Purchaser shall
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not assume the Disputed Contract and shall not be responsible for the associated Cure
Costs, if any, with such Disputed Contract.
Section 1.6 Certain Non-Debtors.
(a) At the Closing, subject to the terms and subject to the conditions set forth
herein, Sellers shall cause each Non-Debtor set forth on Schedule 1.6 to sell, transfer, assign,
convey, and deliver to Purchaser, and Purchaser shall purchase, acquire, and accept from such
Non-Debtors, all of such Non-Debtor’s right, title and interest in and to, as of the Closing, the
assets set forth on Schedule 1.6 with respect to such Non-Debtor, free and clear of all
Encumbrances other than Permitted Encumbrances.
(b) On the terms and subject to the conditions set forth herein, effective as of
the Closing, Purchaser shall irrevocably assume from each Non-Debtor set forth on Schedule 1.6
(and after the Closing pay, perform, discharge, or otherwise satisfy in accordance with their
respective terms), and such Non-Debtor shall irrevocably transfer, assign, convey, and deliver to
Purchaser, the Liabilities of such Non-Debtor set forth on Schedule 1.6 with respect to such Non-
Debtor.
(c) Where applicable, the assets set forth on Schedule 1.6 shall constitute
Acquired Assets; provided that (i) no Non-Debtor is or shall in any event be a Debtor and (ii) as
such, none of the provisions of this Agreement to the extent relating to or involving the Bankruptcy
Code shall apply to the transactions contemplated by this Section 1.6.
(d) To the extent the Parties determine after the date hereof that there are
additional assets Related to the Business that may be held by one or more Non-Debtors that are
not set forth on Schedule 1.6, the Parties agree to work collaboratively to include those assets as
Acquired Assets, structure such transfer of assets in a tax efficient manner and amend Schedule
1.6 to include such assets.
ARTICLE II
CONSIDERATION; PAYMENT; CLOSING
Section 2.1 Consideration; Payment.
(a) The aggregate consideration (collectively, the “Purchase Price”) to be paid
by Purchaser for the purchase of the Acquired Assets shall be: (i) the assumption of Assumed
Liabilities including the Cure Cost Cap of $5,000,000 and (ii) a cash payment of $37,000,000 (the
“Cash Payment”).
(b) At the Closing, Purchaser shall deliver, or cause to be delivered, to Sellers
an aggregate amount equal to (i) the Cash Payment, plus (ii) the Acquired Cash Amount, less
(iii) the Deposit (collectively, the “Closing Date Payment”). The Closing Date Payment and any
payment required to be made pursuant to any other provision hereof shall be made in cash by wire
transfer of immediately available funds to such bank account as shall be designated in writing by
the applicable Party to (or for the benefit of) whom such payment is to be made at least two (2)
Business Days prior to the date such payment is to be made.
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Section 2.2 Deposit.
(a) Purchaser has, on or prior to the date hereof, made an earnest money deposit
with Acquiom Clearinghouse LLC (the “Escrow Agent”) in the amount equal to 10% of the Cash
Payment (the “Deposit”), by wire transfer of immediately available funds for deposit into a
separate, segregated, interest bearing escrow account maintained by the Escrow Agent as
contemplated under the Bidding Procedures Order. The Deposit shall not be subject to any lien,
attachment, trustee process, or any other judicial process of any creditor of any Seller or Purchaser
and shall be applied against payment of the Purchase Price on the Closing Date.
(b) If, prior to the Closing, this Agreement has been terminated by Sellers
pursuant to Section 8.1(d) or 8.1(f) (or by Purchaser pursuant to Section 8.1(b) or 8.1(c), in each
case in circumstances where Sellers would be entitled to terminate this Agreement pursuant to
Section 8.1(d) or 8.1(f)), then Sellers shall retain the Deposit together with all received investment
income, if any, and Sellers shall deliver written instructions to the Escrow Agent directing the
Escrow Agent to transfer by wire transfer of immediately available funds 100% of the Deposit
(together with any and all investment interest thereon, if any) to such account(s) as may be
designated by Sellers.
(c) If, prior to the Closing, this Agreement has been terminated by any Party,
other than as contemplated by Section 2.2(b), then the Deposit, together with all received
investment income, if any, shall be returned to Purchaser within five Business Days after such
termination, and the Seller shall deliver written instructions to the Escrow Agent directing the
Escrow Agent to transfer by wire transfer of immediately available funds 100% of the Deposit
(together with any and all investment interest thereon, if any) to such account(s) as may be
designated by Purchaser.
(d) The Parties agree that Sellers’ right to retain the Deposit, as set forth in
Section 2.2(b), is not a penalty, but rather is liquidated damages in a reasonable amount that will
compensate Sellers for their efforts and resources expended and the opportunities foregone while
negotiating this Agreement and in reliance on this Agreement and on the expectation of the
consummation of the Transactions, which amount would otherwise be impossible to calculate with
precision. Notwithstanding any other provision of this Agreement to the contrary, in the event that
this Agreement is terminated by Sellers pursuant to Section 8.1(d) or Section 8.1(f) (or by
Purchaser pursuant to Section 8.1(b) or Section 8.1(c), in each case in circumstances where Sellers
would be entitled to terminate this Agreement pursuant to Section 8.1(d) or Section 8.1(f)), the
payment of the Deposit and all interest and earnings thereon pursuant to this Section 1.3(h), shall
be Sellers’ sole and exclusive remedy for damages of any nature or kind that Sellers may suffer
under this Agreement, and Sellers shall have no further remedy against Purchaser for any claim or
damages arising out of, relating to or in connection with this Agreement or the Transactions, except
in the case of Willful Breach.
(e) If the Closing occurs, at the Closing Sellers shall deliver written instructions
to the Escrow Agent directing the Escrow Agent to transfer by wire transfer of immediately
available funds 100% of the Deposit (together with any and all investment interest thereon, if any)
to such account(s) as may be designated by Sellers.
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Section 2.3 Closing. The closing of the purchase and sale of the Acquired Assets, the
delivery of the Purchase Price and the assumption of the Assumed Liabilities in accordance with
this Agreement (the “Closing”) will take place by telephone conference and electronic exchange
of documents (or, if the Parties agree to hold a physical closing, at the offices of Kirkland & Ellis
LLP, located at 601 Lexington Avenue, New York, New York 10022) at 10:00 a.m. Eastern Time
on the later of (i) the third Business Day following full satisfaction or due waiver (by the Party
entitled to the benefit of such condition) of the closing conditions set forth in Article VII (other
than conditions that by their terms or nature are to be satisfied at the Closing, but subject to the
satisfaction or waiver of those conditions), or (ii) August 28, 2024, or at such other place and time
as the Parties may agree in writing. The date on which the Closing actually occurs is referred to
herein as the “Closing Date.”
Section 2.4 Closing Deliveries by Sellers. At or prior to the Closing, Sellers shall
deliver to Purchaser:
(a) a bill of sale and assignment and assumption agreement substantially in the
form of Exhibit A (the “Assignment and Assumption Agreement”) duly executed by the applicable
Sellers;
(b) a short-form Intellectual Property assignment agreement substantially in the
form of Exhibit B (the “IP Assignment Agreement”), duly executed by the applicable Sellers;
(c) instruments of transfer of the Equity Interests of the Transferred
Subsidiaries, in customary form, duly executed by the applicable Sellers;
(d) a transition services agreement in form and substance substantially similar
to Exhibit D, together with (A) such changes as the Parties may reasonably agree and (B) schedules
to such agreement in form and substance reasonably acceptable to the Parties (which the Parties
shall negotiate in good faith to finalize as promptly as practicable) (the “Transition Services
Agreement”), duly executed by the applicable Sellers, setting forth the terms and conditions upon
which certain Sellers will perform specified services to Purchaser after the Closing in order to
transition the Business to Purchaser;
(e) an IRS Form W-9, or appropriate IRS Form W-8, as applicable, executed
by each Seller or each Seller’s regarded owner for U.S. federal income Tax purposes and any other
Tax form reasonably requested by Purchaser to provide an exemption from or reduction to
withholding under applicable Law; provided that the failure to deliver such form shall not be
deemed a breach of any condition or covenant in this Agreement and Purchaser’s sole remedy for
the failure to provide any such form shall be to withhold any required amount under the Tax Code
(or other applicable Tax Law) from the consideration otherwise payable to Sellers hereunder in
accordance with Section 2.6;
(f) an officer’s certificate, dated as of the Closing Date, executed by a duly
authorized officer of Vyaire certifying that the conditions set forth in Sections 7.2(a) and 7.2(b)
have been satisfied;
(g) certificates (to the extent such Equity Interests are certificated) representing
all of the Equity Interests of the Acquired Entities, duly endorsed in blank or accompanied by
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transfer powers or such other instruments, in each case, in customary form and substance,
sufficient to transfer to the Purchaser of the Equity Interests of the Acquired Entities under
applicable Law, free and clear of any Encumbrances (other than Permitted Encumbrances), which
instruments shall not expand any representation or warranty, or any remedy or Liability, of any
Party, duly executed by the applicable Sellers or Non-Debtor; provided, however, that if any such
equity certificate (to the extent such Equity Interests are certificated) has been lost, damaged, or
destroyed, then the applicable Person shall execute and deliver to the Purchaser an affidavit and
indemnity agreement, in customary form, with respect to such lost, damaged, or destroyed stock
certificate;
(h) instruments, agreements, or other documents, in each case in customary
form that are necessary to transfer the applicable Non-Debtor’s right, title and interest in and to,
as of the Closing, the assets and the Liabilities set forth on Schedule 1.6 to Purchaser in the manner
required by applicable Law, which instruments, agreements, or documents shall not expand any
representation or warranty, or any remedy or Liability, of any Party, duly executed by the
applicable Sellers; and
(i) a written instruction, duly executed by Seller, instructing the Escrow Agent
to release to the Seller by wire transfer of immediately available funds, the Deposit.
Section 2.5 Closing Deliveries by Purchaser. At the Closing, Purchaser shall deliver
to (or at the direction of) Sellers:
(a) the Closing Date Payment;
(b) the Assignment and Assumption Agreement, duly executed by Purchaser;
(c) the Transition Services Agreement, duly executed by Purchaser;
(d) the IP Assignment Agreement, duly executed by Purchaser;
(e) an officer’s certificate, dated as of the Closing Date, executed by a duly
authorized officer of Purchaser certifying that the conditions set forth in Section 7.3(a) and 7.3(b)
have been satisfied; and
(f) instruments, agreements, or other documents, in each ease in customary
form that are necessary to transfer the applicable Non-Debtor’s right, title and interest in and to,
as of the Closing, the assets and the Liabilities set forth on Schedule 1.6 to Purchaser in the manner
required by applicable Law, which instruments, agreements, or documents shall not expand any
representation or warranty, or any remedy or Liability, of any Party, duly executed by Purchaser
(to the extent Purchaser’s execution of such instruments, agreements, or other documents is
necessary).
Section 2.6 Withholding. Purchaser shall be entitled to deduct and withhold any Taxes
from any amounts otherwise payable pursuant to this Agreement, to the extent required by
applicable Law; provided that so long as each Seller provides the applicable form described in
Section 2.4(e) properly certifying that such Seller is not subject to any withholding Tax, the Parties
acknowledge that they are not aware as of the date hereof that any withholding Tax is required;
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provided further that in the event any Purchaser intends to withhold any Taxes from the Purchase
Price, Purchaser shall exercise commercially reasonable efforts to provide at least five (5) Business
Days’ notice to such Seller of the intent to withhold and shall work together in good faith with
such Seller to determine if an exemption from or reduced rate of withholding is available. To the
extent such amounts are so deducted or withheld and timely remitted to the proper Governmental
Body, such amounts shall be treated for all purposes under this Agreement as having been paid to
the Person to which such amounts would otherwise have been paid. Prior to the Closing, in
connection with Schedule 1.6, the Parties shall mutually and reasonably agree to the Tax structure
of Purchaser, taking into consideration any applicable withholding requirements and the
Transactions.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLERS
Except as (i) disclosed in any forms, statements or other documents filed with the
Bankruptcy Court or (ii) set forth in the Schedules delivered by Sellers concurrently herewith and
subject to Section 10.10, Sellers represent and warrant to Purchaser as of the date hereof as follows.
Notwithstanding anything to the contrary in this Agreement, the statements contained in this
Article III are only made with respect to the Acquired Business, the Acquired Assets, the Acquired
Entities and the Assumed Liabilities, as applicable, and nothing in this Article III shall be
construed to pertain to any assets, Liabilities, entities or businesses other than (1) the Acquired
Business, the Acquired Assets, the Acquired Entities, or the Assumed Liabilities, or (2) to the
extent related to the Acquired Business, the Acquired Assets, the Acquired Entities, or the
Assumed Liabilities, as applicable.
Section 3.1 Organization and Qualification. Each Seller is a corporation, limited
liability company or limited partnership, as applicable, duly incorporated or organized, validly
existing, and in good standing under the Laws of the jurisdiction of its incorporation or formation,
except where the failure to be so incorporated, organized, existing or in good standing does not
adversely impact such Seller’s ability to consummate the Transactions, and has the requisite power
and authority to own, lease and operate its properties and assets, including the Acquired Assets,
and to carry on the Business as now being conducted. Each Acquired Entity is duly licensed or
qualified to do business under the Laws of each jurisdiction in which the nature of the business
conducted by it makes such licensing or qualification necessary, except where the failure to be so
licensed or qualified would not reasonably be expected to be material to such Acquired Entity.
Section 3.2 Authorization of Agreement. The execution, delivery and performance by
each Seller of this Agreement and the other Transaction Agreements to which such Seller is a
party, and the consummation by such Seller of the Transactions, subject to requisite Bankruptcy
Court approvals being granted, have been duly authorized by all requisite corporate action, limited
liability company action or limited partnership action on the part of such Seller, as applicable, and
no other organizational proceedings on such Seller’s part are necessary to authorize the execution,
delivery and performance by such Seller of this Agreement or the other Transaction Agreements
and the consummation by it of the Transactions. Subject to requisite Bankruptcy Court approvals,
this Agreement and the other Transaction Agreements to which each Seller is a party have been,
or will be, duly executed and delivered by such Seller and, assuming due authorization, execution
and delivery hereof and thereof by the other parties hereto and thereto, constitutes, or will
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constitute, legal, valid and binding obligations of such Seller, enforceable against such Seller in
accordance with its and their terms, except that such enforceability (a) may be limited by
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar Laws of
general application affecting or relating to the enforcement of creditors’ rights generally and (b) is
subject to general principles of equity, whether considered in a proceeding at law or in equity
(collectively, the “Enforceability Exceptions”).
Section 3.3 Conflicts; Consents. Assuming that (a) requisite Bankruptcy Court
approvals are obtained, (b) the notices, authorizations, approvals, Orders, Permits or consents set
forth on Schedule 3.3 are made, given or obtained (as applicable), and (c) the requirements of any
applicable antitrust, competition, foreign direct investment or “FDI”, or merger control Laws
promulgated by any Governmental Body (“Foreign Competition Laws”) are complied with and
(d) any filings required by any applicable federal or state securities or “blue sky” Laws are made,
the execution and delivery by Sellers of this Agreement or the other Transaction Agreements, and
the consummation by Sellers of the Transactions contemplated hereby and the performance or
compliance by Sellers with any of the terms or provisions hereof or thereof, do not and will not (i)
conflict with or violate any provision of a Seller’s certificate of incorporation or bylaws, certificate
of formation or limited liability company agreement, certificate of limited partnership, partnership
agreement or other governing documents, as applicable (ii) violate or constitute a breach of or
default (with or without notice or lapse of time, or both) under or give rise to a right of termination,
modification, or cancelation of any obligation or to the loss of any benefit, any of the terms or
provisions of any Material Contract or accelerate any Seller’s obligations under any such Material
Contract, (iii) violate any Law or Order applicable to Sellers or any of the Acquired Assets, or by
which any Seller or any of the Acquired Assets may be bound, or (iv) result in the creation of any
Encumbrance (other than a Permitted Encumbrance) on any Acquired Assets; except, in the case
of clauses (ii) and (iii), as would not, individually or in the aggregate, reasonably be expected to
be material to the Business.
Section 3.4 Equity Interests of Acquired Entities.
(a) The authorized and outstanding Equity Interests of each of the Acquired
Entities are as set forth on Schedule 3.4(a). All of the Equity Interests of the Acquired Entities
have been duly authorized, validly issued, fully paid and are non-assessable (where such concepts
are legally recognized in the jurisdictions of organization of such Acquired Entities). Except as set
forth on Schedule 3.4(a), there are no outstanding options, warrants, convertible, exercisable or
exchangeable securities, “phantom” stock rights, stock appreciation rights, stock-based
performance units, rights to subscribe to, purchase rights, calls or commitments relating to the
issuance, purchase, sale or repurchase of any Equity Interests issued by the Acquired Entities, or
Contracts, commitments, understandings, arrangements or other obligations by which any of the
Acquired Entities is bound to issue, deliver or sell, or cause to be issued, delivered or sold,
additional capital stock or other Equity Interests, or options, warrants, convertible, exercisable or
exchangeable securities, “phantom” stock rights, stock appreciation rights, stock-based
performance units, rights to subscribe to, purchase rights, calls or commitments relating to any
capital stock or other Equity Interests of the Acquired Entities, or that otherwise give any Person
the right to receive any benefits or rights similar to any rights enjoyed by or accruing to the holders
of shares of capital stock or other Equity Interests of any Acquired Entity (including any rights to
receive any payment in respect, or based on the price or value, thereof). None of the Sellers or the
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Acquired Entities is a party to any shareholders’ agreement, voting trust agreement, registration
rights agreement or other similar agreement or understanding relating to any such securities or any
other agreement relating to the disposition, voting or dividends with respect to any such securities.
Except as set forth on Schedule 3.4(a), the Sellers own all of the outstanding capital stock or other
Equity Interests of the Acquired Entities, free and clear of all Encumbrances (other than Permitted
Encumbrances).
(b) Except as set forth on Schedule 3.4(b), there are no other corporations,
limited liability companies, partnerships, joint ventures, associations or other entities or Persons
in which the Acquired Entities own as of the date of this Agreement, of record or beneficially, any
direct or indirect equity or other interest or any right (contingent or otherwise) to acquire the same.
Section 3.5 Financial Statements.
(a) Attached to Schedule 3.5(a) is a statement of income for the Business, for
each month of the six-month period ended June 30, 2024 (collectively, the “Financial
Statements”).
(b) Attached to Schedule 3.5(b) are the trial balances by entity of each of the
Sellers and the Acquired Entities as of June 30, 2024 (the “Trial Balances”).
(c) Except as set forth on Schedule 3.5(c), each Acquired Entity does not have
any Liabilities of the type required to be accrued on or reserved against in a consolidated balance
sheet prepared in accordance with GAAP, except (i) Liabilities accrued on or reserved against in
its most recent Trial Balance or disclosed in the notes thereto or in the notes to the other Financial
Statements, (ii) Liabilities arising after the date of this Agreement in connection with the
Transactions, (iii) Liabilities disclosed in another section of the Schedules to the extent the
existence of such Liability is readily apparent on the face of such disclosure, and (iv) other
Liabilities which do not to exceed $250,000 in the aggregate.
Section 3.6 Title to Properties.
(a) Sellers have good and valid title to all of the Acquired Assets, free and clear
of any and all free and clear of all Encumbrances (other than Permitted Encumbrances).
(b) One or more of the Sellers or Acquired Entities has a good and valid
leasehold interest to all real property leased by Sellers or the Acquired Entities that is Related to
the Entire Business (the “Leased Real Property”), free and clear of all Encumbrances (other than
Permitted Encumbrances).
(c) Schedule 3.6(c) sets forth the address of each Leased Real Property. The
Sellers have made available to Purchaser or Purchaser’s Advisors true and complete copies of each
Acquired Lease. Except as set forth on Schedule 3.6(c) (and subject to entry of the Sale Order),
with respect to each Acquired Leases (i) such Acquired Lease is legal, valid, binding, enforceable
and in full force and effect; (ii) to the Knowledge of Sellers, there are no existing material disputes
with respect to such Acquired Lease; (iii) none of Sellers, the Acquired Entities or, to the
Knowledge of Sellers, any other party to the Acquired Lease is in material breach or material
default under such Acquired Lease, and, to the Knowledge of Sellers, no event has occurred within
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the two (2) years preceding the date hereof or circumstance exists which, with the delivery of
notice, the passage of time or both, would constitute such a material breach or material default, or
permit the termination, modification or acceleration of rent under such Acquired Lease, except, in
each case, for such breaches or defaults as would not reasonably be expected to be material to the
Acquired Assets, taken as a whole; (iv) neither Sellers nor any of the Acquired Entities have
currently subleased, licensed or otherwise granted any Person the right to use or occupy such
Leased Real Property or any portion thereof; and (v) none of the Acquired Leases, or any interest
therein, is collaterally assigned or subject to a security interest.
(d) Schedule 3.6(d) sets forth all liens on the rights, title or interest of the
Acquired Entities on the assets owned or held for use by them (other than Permitted Encumbrances
and the interest of any counterparty to any Contract (e.g. a personal or real property lease or
intellectual property license)).
(e) [Vyaire Medical, Inc. has entered into] that certain Binding Term Sheet with
Kilmainham Vyaire, LLC (“Palm Springs Landlord”) in the form and on the terms provided to
Purchaser (the “Palm Springs Term Sheet”) to amend and restate that certain Lease Agreement
dated as of August 31, 2022. The Palm Springs Term Sheet has not been rescinded and remains in
full force and effect and, to Sellers Knowledge, the Palm Springs Landlord in good faith intends
to negotiate the Lease Agreement consistent with the Palm Springs Term Sheet.
Section 3.7 Contracts.
(a) Schedule 3.7(a) sets forth a list of each Material Contract, as of the date of
this Agreement. For purposes of this Agreement, “Material Contract” means any Contract to which
the Sellers or the Acquired Entities are party that is Related to the Acquired Business or the
Acquired Intellectual Property, in all cases other than any purchase orders on Sellers’ standard
form (a true and correct copy of which has been made available to Purchaser) and any Employee
Benefit Plan, that:
(i) relates to the formation, creation, governance, economics, or control
of any joint venture, partnership or other similar arrangement with a third party (in each
case, other than Contracts entered into in the Ordinary Course and Organizational
Documents of any Seller or Acquired Entity);
(ii) (A) provides for indebtedness for borrowed money of Sellers having
an outstanding or committed amount in excess of $500,000 or the Acquired Entities having
an outstanding or committed amount in excess of $100,000, in each case, other than letters
of credit, credit terms extended to customers in the Ordinary Course, advancement of
expenses made to employees and independent contractors in the Ordinary Course, and
indebtedness as solely among any Sellers, the Acquired Entities and their Subsidiaries or
(B) under which any Seller or Acquired Entity has permitted any Acquired Asset to become
subject to any Encumbrances (other than Permitted Encumbrances);
(iii) relates to the acquisition or disposition of any business (whether by
merger, sale of stock, sale of assets or otherwise) that has outstanding obligations
remaining thereunder (in each case, excluding for the avoidance of doubt, acquisitions or
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dispositions supplies, merchandise, Inventory, products, Equipment, properties or other
assets in the Ordinary Course, or of supplies, Inventory, merchandise, products,
Equipment, properties or other assets that are obsolete, worn out, surplus or no longer used
or useful in the conduct of the Business);
(iv) pursuant to which any Seller or Acquired Entity (or another Person
on behalf of Seller or any Acquired Entity) (A) has sold or assigned any Intellectual
Property to another Person or currently licenses of otherwise conveys or provides any
Intellectual Property to another Person (collectively, “Outbound IP Contracts”) (except that
Schedule 3.7(a)(iv) does not identify any Outbound IP Contract with only a non-exclusive
license granted on behalf of Seller or Acquired Entity in the Ordinary Course to customers
or service providers and (B) has been sold or assigned any Intellectual Property by another
Person or currently licenses or otherwise is conveyed or provided any Intellectual Property
from another Person, including Contracts for the development of Intellectual Property for
the benefit of the Seller or Acquired Entity (collectively, “Inbound IP Contracts”) (except
that Schedule 3.7(a)(iv) does not identify any Inbound IP Contract pertaining to the non-
exclusive license or right to use commercially available, mass-market software for the
Seller’s or Acquired Entity’s internal use that has a total replacement cost of less than
$100,000 or contain only non-exclusive licenses that are ancillary to the primary purpose
of such Contract);
(v) with any vendor that provides services that involve payments to or
from any vendor anticipated to be in excess of $100,000 in any one (1) calendar year;
(vi) is a Contract (other than purchase orders) Related to the Entire
Business pursuant to which Sellers would reasonably be expected to make or receive
payments of more than $500,000 or the Acquired Entities would reasonably be expected
to make or receive payments of more than $100,000, in each case during any fiscal year;
(vii) contains any provision (A) limiting, in any material respect, the right
of Sellers or the Acquired Entities to engage in any business, make use of any Acquired
Intellectual Property that is material to Sellers or the Acquired Entities, compete with any
Person, or operate anywhere in the world, or (B) granting any exclusivity right to any third
party or containing a “most favored nation” provision in favor of any third party; or
(viii) is a commitment or agreement to enter into any of the foregoing.
(b) True and complete copies of all Material Contracts have been made
available to Purchaser or Purchaser’s Advisors. Subject to requisite Bankruptcy Court approvals,
and assumption by the applicable Seller or Acquired Entity of the applicable Contract in
accordance with applicable Law (including satisfaction by Purchaser of any applicable Cure Costs)
and except (i) as a result of the commencement of the Bankruptcy Cases, (ii) with respect to any
Contract that has previously expired in accordance with its terms, been terminated, restated, or
replaced, or (iii) as set forth in Schedule 3.7(b), (A) each Material Contract is valid and binding on
the Seller or Acquired Entity that is a party thereto and, to the Knowledge of Sellers, each other
party thereto, and is in full force and effect, subject to the Enforceability Exceptions, (B) the
applicable Seller or Acquired Entity, and, to the Knowledge of Sellers, any other party thereto,
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have performed all obligations required to be performed by it under each Material Contract,
(C) Sellers or Acquired Entities have received no written notice of the existence of any breach or
default on the part of any Sellers or Acquired Entities under any Material Contract, (D) there are
no events or conditions which constitute, or, after notice or lapse of time or both, will constitute a
default on the part of a Seller or Acquired Entity, or to the Knowledge of Sellers, any counterparty
under such Material Contract and (E) to the Knowledge of Sellers, Sellers and the Acquired
Entities have not received any written notice from any Person that such Person intends to terminate,
or not renew, any Material Contract, except in each case of clauses (A) through (E), as would not,
individually or in the aggregate, reasonably be expected to be material to the Business.
(c) Schedule 3.7(c) sets forth a true and complete list of purchase orders Related
to the Entire Business as of [__], 2024, pursuant to which any Seller or Acquired Entity would
reasonably be expected to make or receive payments of more than $[100,000].
Section 3.8 No Litigation. Except as set forth on Schedule 3.8, there are no Actions
pending or, to Sellers’ Knowledge, threatened against or affecting any of the Sellers or Acquired
Entities that would reasonably be expected to adversely affect any Seller’s or Acquired Entities’
performance of its obligations under this Agreement or the consummation of the Transactions.
Except as disclosed on Schedule 3.8, there is no material Action to which any Seller or Acquired
Entity or any of their respective directors, officers, employees, or individual contractors,
consultants or advisors (in their capacity as such), is a party (either as plaintiff or defendant) or to
the Knowledge of Seller, threatened, that would reasonably be expected to (i) adversely affect the
Business or the Acquired Assets or (ii) impose additional obligations upon Purchasers after
Closing, in each case with respect to the Assumed Liabilities.
Section 3.9 Permits; Compliance with Laws; Regulatory Matters.
(a) The Sellers and Acquired Entities hold all licenses, franchises, permits,
certificates, approvals, clearances, registrations, and authorizations granted by Governmental
Bodies, or otherwise required by applicable Laws, including but not limited to CE Certificates of
Conformity, EU Declarations of Conformity and related self-declarations, necessary for the lawful
conduct of the Business as currently conducted, in each case, except as would not, individually or
in the aggregate, reasonably be expected to be material to the Business, the Acquired Assets and
the Assumed Liabilities, taken as a whole (collectively, “Permits”). Schedule 3.9(a) sets forth the
approval status in both the EU and United States of each of the product lines and related sensors
of the Business. Further, the existing Permits, including any and all premarket approvals, FDA
510(k) clearances and CE Certificates of Conformities, are valid and legally adequate to permit
the continuous manufacture and distribution of the applicable medical devices in the EU and the
United States, taking into account all modifications to the medical devices after premarket
approvals, FDA 510(k) clearances and CE Certificates of Conformity. Schedule 3.9(a) sets forth
for each product of the Acquired Business in relation to both the EU and the United States, as
applicable, the, identity of the legal manufacturer; identity of the physical manufacturer; the status
of the (EN) ISO 13485 certification of legal manufacturer and physical manufacturer and the
related date of expiry of the certification; product risk classification, including for the EU, the
product risk classification in accordance with Directive 93/42/EEC on medical devices (“MDD”)
and the product risk classification in accordance with Regulation (EU) 2017/745 on medical
devices, as amended (“MDR”); identity of the Notified Body that issued a CE Certificate of
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Conformity and the date of expiry of the CE Certificate of Conformity; the status of the relevant
Permit; the legal basis on the basis of which each product is placed on the market and can continue
to be placed on the market in the EU; where Seller relies on the transitional provisions of the MDR,
(i) confirmation that Seller has issued a self-declaration of compliance will all the conditions for
benefiting from the transitional provisions of the MDR and (ii) a confirmation letter from the
relevant Notified Body stating the receipt of the Seller’s application for conformity assessment in
accordance with the MDR and the conclusion of a written agreement; and, the status of the
conformity assessment in accordance with the MDR.
(b) Each Seller and Acquired Entity (with respect to the Business) has been, at
all times since January 1, 2022, in compliance, except as would not reasonably be expected to be
material to the Business, the Acquired Assets and the Assumed Liabilities, taken as a whole, with
all applicable Laws and Orders, including (A) the Federal Food, Drug, and Cosmetic Act, as
amended (21 U.S.C. Sections 301 et seq.) (the “FDCA”) and the regulations promulgated
thereunder (B) the Public Health Service Act (42 U.S.C. Sections 201 et seq.) and the regulations
promulgated thereunder (C) Laws relating to healthcare fraud and abuse, false claims and anti-
kickback Laws, including the Federal Anti-Kickback Statute (42 U.S.C. Sections 1320a-7b(b)),
the Federal False Claims Act (31 U.S.C. Section 3729 et seq.), the administrative False Claims
Law (42 U.S.C. § 1320a-7b(a)), the Anti-Inducement Law (42 U.S.C. § 1320a-7a(a)(5)), the Civil
Monetary Penalties Law (42 U.S.C. § 1320a-7a) the exclusion Laws (42 U.S.C, § 1320a-7), or any
similar Laws; (D) Laws regarding the reporting of prices and promotional expenditures to
healthcare professionals including the federal Physician Payment Sunshine Act (42 U.S.C.
§ 1320a-7h) and similar state gift and disclosure Laws; (E) the Health Insurance Portability and
Accountability Act of 1996 as amended by the Health Information Technology for Economic and
Clinical Health Act of 2009, the regulations promulgated thereunder and similar Laws pertaining
to privacy, data protection and information security; and (F) state Laws relating to the manufacture,
sale, and distribution of medical products; and (G) all applicable Laws of other countries or
jurisdictions in which a Seller or Acquired Entity conducts business and comparable foreign
Governmental Bodies that impose requirements on manufacturing, development, non-clinical,
clinical testing, production, analysis, certification, labeling, advertising, marketing, promotion,
interactions and relationships with healthcare professionals, healthcare organizations, or patient
organizations, transfers of values to healthcare professionals, healthcare organizations, or patient
organizations, transparency and reporting relating to interactions or relationships, or transfers of
values to healthcare professionals, healthcare organizations, or patient organizations, distribution,
importation, exportation, use, handling, quality sale, reporting, kickbacks, patient or program
charges, recordkeeping, claims process, documentation requirements, medical necessity, referrals,
the hiring of employees or acquisition of services or supplies from those who have been excluded
from government health care programs, quality, safety, privacy, security, licensure, accreditation
or any other aspect of providing health care, clinical laboratory or diagnostics devices or services
including but not limited to Directive 93/42 on Medical Devices and the related national
implementing legislation of EEA countries, Regulation 2017/745 on Medical Devices and the
General Data Protection Regulation 2016/679 (collectively, “Health Care Laws”). Each Seller and
Acquired Entity has implemented a compliance program reasonably designed to ensure
compliance with applicable Health Care Laws and related industry codes and standards.
(c) Each Seller and Acquired Entity and each of its respective directors, officers
and employees acting in such capacity and, to the Knowledge of Sellers, each of its and their other
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agents acting on its or their behalf, is, and has been, at all times since January 1, 2022, in
compliance in all material respects with the Foreign Corrupt Practices Act of 1977 and any rules
and regulations promulgated thereunder, or any similar Laws. Except as would not reasonably be
expected to be material to the Business, the Acquired Assets and the Assumed Liabilities, taken as
a whole, no Seller, Acquired Entity nor any Person affiliated with a Seller or Acquired Entity is
debarred under 21 U.S.C. Section 335a or disqualified by the United States Food and Drug
Administration (“FDA”) under the FDCA or any similar Law, or is otherwise excluded from or
restricted in any manner from participation in any government program related to medical devices
in the United States or any other country in which a Seller or Acquired Entity conducts business
and, to Knowledge of Sellers, no Person affiliated with any Seller or Acquired Entity employs or
uses the services of any person who is so debarred or otherwise excluded or restricted. As of the
date hereof, no Actions, claims or investigations that would reasonably be expected to result in
such a debarment, exclusion or restriction are pending or threatened in writing against any Seller,
Acquired Entity or any Person affiliated with a Seller or Acquired Entity. No Seller or Acquired
Entity is a party to, nor does it have, any ongoing reporting obligations pursuant to or under any
corporate integrity agreements, deferred prosecution agreements, monitoring agreements, consent
decrees, settlement orders, plans of correction or similar agreements with or imposed by any
Governmental Body.
(d) No Seller or Acquired Entity has received written notice of or is subject to
any pending or, to Knowledge of Sellers, threatened investigation, Actions, hearing, enforcement,
audit, inspection, arbitration or other action by the FDA or any other federal, state or foreign
Governmental Body alleging that any product, operation or activity of such Seller or Acquired
Entity is in violation of any applicable Law or Health Care Law, nor has any Governmental Body
indicated to Seller or Acquired Entity of an intention to conduct or initiate the same.
(e) Except as would not reasonably be expected to be material to the Business,
the Acquired Assets and the Assumed Liabilities, taken as a whole, since January 1, 2022, (i) no
Seller or Acquired Entity has received FDA Warning or Untitled Letter (or the foreign equivalents
thereof), or requests or requirements to make changes to products manufactured or sold by any
Seller or Acquired Entity that if not complied with would reasonably be expected to result in a
material effect on Seller or any Acquired Entity; (ii) no penalty, fine or other sanction has been
assessed against any Seller or Acquired Entity by any Governmental Body; (iii) no manufacturing
sites or products have been subject to a Governmental Body shutdown or suspension or import or
export prohibition; and (iv) no compliance order or other compliance monitoring or enforcement
activity, nor any similar correspondence, notice or any written communication from the FDA or
other Governmental Body alleging or asserting noncompliance with any applicable Law, Permit
or such requests or requirements of a Governmental Body, has been made in respect of any Seller
or Acquired Entity by any Governmental Body, and, to Knowledge of Sellers, neither the FDA nor
any Governmental Body is considering such action.
(f) The Sellers and Acquired Entities are in compliance in all material respects
with all Permits, and no event, circumstance or state of facts has occurred which (with or without
due notice or lapse of time or both) would reasonably be expected to result in the failure of the
Sellers or Acquired Entities to be in compliance in all material respects with the terms of any such
Permit. To the Knowledge of the Sellers and Acquired Entities, (i) no Governmental Body is
considering limiting, suspending, varying, or revoking any Permit and (ii) each third party that is
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a manufacturer, contractor or agent for the Sellers and Acquired Entities is in compliance in all
material respects with all Permits required by all Health Care Laws insofar as they reasonably
pertain to the Sellers and Acquired Entities or the products manufactured or sold by any Seller or
Acquired Entity.
(g) All products manufactured or sold by any Seller or Acquired Entity are
developed, investigated, manufactured, prepared, packaged, tested, labeled and distributed in
compliance in all material respects with all Health Care Laws.
(h) To the Knowledge of Sellers, components supplied to the Sellers and
Acquired Entities by third parties based on specifications provided by the Sellers or Acquired
Entities are manufactured by such third parties in accordance with such specifications in all
material respects. All of the products manufactured or sold by any Seller or Acquired Entity,
including all components, packaging, labeling and promotional materials or oral representations
for such products, comply in all material respects with all Health Care Laws. To the Knowledge
of Sellers, all components included in products manufactured or sold by any Seller or Acquired
Entity comply in all material respects with all Health Care Laws.
(i) No Seller or Acquired Entity, nor to Knowledge of Sellers (i) any officer or
employee of a Seller or Acquired Entity, (ii) any authorized agent of a Seller or Acquired Entity
or (iii) any principal investigator or sub-investigator of any clinical investigation conducted by a
Seller or Acquired Entity has, in the case of each of (i) through (iii) on account of actions taken
for or on behalf of any Seller or Acquired Entity, been convicted of any crime under the FDCA;
nor has any such principal investigator or sub-investigator been disqualified from conducting any
clinical investigation that supports an application for a research or marketing permit for products
regulated by the FDA, including medical devices, under 21 C.F.R. § 312.70 or 812.119 or any
similar or applicable foreign Laws.
(j) Except as would not reasonably be expected to be material to the Business,
the Acquired Assets and the Assumed Liabilities, taken as a whole, the clinical, pre-clinical and
other studies and tests conducted by or on behalf of or sponsored by any Seller or Acquired Entity
or in which any Seller or Acquired Entity or its products or product candidates have participated
were and, if still pending, are being conducted in all material respects in accordance with all
applicable Laws, including the FDCA and its applicable implementing regulations at 21 C.F.R.
Parts 50, 54, 56, 58 and 812. No investigational device exemption filed by or on behalf of any
Seller or Acquired Entity with the FDA has been terminated or suspended by the FDA, and since
January 1, 2022, neither the FDA nor any applicable foreign regulatory authority or Governmental
Body has commenced, or, to Knowledge of Sellers, threatened to initiate, any action to place a
clinical hold order on, or otherwise terminate, delay or suspend, any proposed or ongoing clinical
investigation conducted or proposed to be conducted by or on behalf of any Seller or Acquired
Entity.
(k) Except as would not reasonably be expected to be material to the Business,
the Acquired Assets and the Assumed Liabilities, taken as a whole, since January 1, 2022, all
applications, notifications, submissions, information, claims, reports, registrations and other data
and conclusions derived therefrom, utilized as the basis for or submitted in connection with any
and all Permits from the FDA or other Governmental Body or otherwise required by applicable
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Laws relating to any Seller or Acquired Entity, its businesses and its products, when submitted to
the FDA or other Governmental Body or otherwise issued by any Seller or Acquired Entity were
true, complete and correct in all material respects as of the date of submission, and all necessary
or required applications, notifications, submissions, information, claims, reports, registrations,
data, and updates, changes, corrections or modifications thereto have been submitted to the FDA
or other Governmental Body or issued by Seller or Acquired Entity.
(l) Schedule 3.9(l) sets forth a list of (i) all recalls, field notifications, field
corrections, market withdrawals or replacements, safety alerts or other notices of action or actions
relating to an alleged lack of safety, efficacy, or regulatory compliance of the products
manufactured or sold by any Seller or Acquired Entity (“Safety Notices”) since June 1, 2022,
(ii) the dates such Safety Notices, if any, were resolved or closed, (iii) to Sellers’ Knowledge, any
material complaints with respect to the products manufactured or sold by any Seller or Acquired
Entity that are currently unresolved, and (iv) a list of all corrective actions and preventive actions
that have been initiated since June 1, 2022 either voluntarily or in response to a related audit by a
third party or a Governmental Body, the context and findings in relation to which the actions were
initiated and the status of each action in relation to the closure and resolution of the related finding.
There are no Safety Notices, or, to Sellers’ Knowledge, material product complaints with respect
to the products manufactured or sold by any Seller or Acquired Entity, and to Sellers’ Knowledge,
there are no facts or circumstances that would be reasonably likely to result in (i) a material Safety
Notice with respect to the products manufactured or sold by any Seller or Acquired Entity, (ii) a
material change in the marketing classification or labeling of any such products; or (iii) a
termination or suspension of marketing or testing of any such product.
Section 3.10 Environmental Matters. (a) Sellers and the Acquired Entities are, and
have been since January 1, 2022, in compliance with all material applicable Environmental Laws
with respect to the conduct of the Business, (b) since January 1, 2022, none of Sellers or Acquired
Entities has received any written notice alleging that any Seller or Acquired Entity is in violation
of or liable under, any Environmental Law that is unresolved with respect to the conduct of the
Business, (c) Sellers and the Acquired Entities possess and are material in compliance with all
material Permits required under Environmental Laws for the operation of the Business as currently
conducted (“Environmental Permits”), (d) there is no Action under or pursuant to any
Environmental Law or Environmental Permit that is pending or, to the Knowledge of Sellers,
threatened in writing against any Seller or Acquired Entity that is Related to the Entire Business,
(e) Sellers and the Acquired Entities are not subject to any Order imposed by any Governmental
Body pursuant to Environmental Laws under which there are uncompleted, outstanding or
unresolved obligations on the part of any Seller or Acquired Entity in the case of Sellers or
Acquired Entities, that is Related to the Entire Business, and (f) no Seller or Acquired Entity has
released any Hazardous Substances at the Leased Real Property in quantities or concentrations that
currently require Sellers or the Acquired Entities to conduct remedial activities, or that have given
rise to any Action against Seller or any Acquired Entity, under Environmental Laws.
Section 3.11 Intellectual Property.
(a) Schedule 3.11(a) sets forth a list of the following Intellectual Property
owned by the Sellers that is Related to the Entire Business and the following Intellectual Property
that is owned by the Acquired Entities: (i) all patents and patent applications, (ii) all registered
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trademarks and pending trademark applications, (iii) all Internet domain names and (iv) all
registered copyrights (items (i) through (iv) the “Seller Intellectual Property Rights”).
(b) Sellers own all of the rights, title and interest in and to the Acquired
Intellectual Property, free and clear of all Encumbrances (other than Permitted Encumbrances).
Sellers and the Acquired Entities own all of the rights, title and interest in and to the Seller
Intellectual Property Rights, free and clear of all Encumbrances (other than Permitted
Encumbrances). All of the Seller Intellectual Property Rights are subsisting and in full force and
effect, and to the Knowledge of Sellers, valid and enforceable.
(c) (i) Sellers and the Acquired Entities own or have legally enforceable and
sufficient rights to use all Intellectual Property necessary to the conduct of the Business as
currently conducted by Sellers and Acquired Entities free and clear of all Encumbrances (other
than Permitted Encumbrances) and (ii) Sellers and the Acquired Entities have taken commercially
reasonable steps to maintain the confidentiality of all material non- public Acquired Intellectual
Property; provided that nothing in this Section 3.11(c) shall be interpreted or construed as a
representation or warranty with respect to whether there is any infringement, misappropriation, or
violation of any Intellectual Property, which is the subject of Section 3.11(e).
(d) No Actions are pending or, to the Knowledge of Sellers, threatened against
any Seller or Acquired Entity in a writing received by a Seller or Acquired Entity, and since
January 1, 2022, Sellers and the Acquired Entities have not received any written notice or claim,
(i) challenging the ownership, validity, enforceability or use by any Seller or Acquired Entity of
any Intellectual Property owned by or exclusively licensed to any such Seller or Acquired Entity
in connection with the Business or Acquired Entity or (ii) alleging that any Seller in connection
with the Business or Acquired Entity is infringing, misappropriating or otherwise violating the
Intellectual Property of any Person.
(e) Since January 1, 2022, (i) to the Knowledge of Sellers no Person has
infringed, misappropriated or otherwise violated the rights of Sellers or the Acquired Entities with
respect to any Intellectual Property that is owned by or exclusively licensed to Sellers or the
Acquired Entities and (ii) the operation of the Business by Sellers and the Acquired Entities has
not violated, misappropriated or infringed the Intellectual Property of any other Person.
(f) The consummation of the Transactions will not result in the grant of any
right or license to any third party of any Intellectual Property that is owned by or exclusively
licensed to any Seller or Acquired Entity and is material to the Acquired Assets and the Business,
taken as a whole.
(g) Except as would not, individually or in the aggregate, reasonably be
expected to be material to the Business, the Acquired Assets, and the Assumed Liabilities, taken
as a whole, (i) each Person who is or was involved in the invention, conception, creation or
development of any Acquired Intellectual Property for or on behalf of Sellers or Acquired Entities
(each, a “Contributor”) has signed a valid and enforceable written Contract containing (A) an
assignment to Sellers or Acquired Entities or one of their Affiliates of exclusive ownership of all
rights, title and interest in and to all such Acquired Intellectual Property, except where such rights
vested in a Seller or Acquired Entity or one of its Affiliates as a matter of law, (B) reasonably
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customary confidentiality provisions protecting the secrecy of Sellers’ and Acquired Entities’
confidential information, including trade secrets and other non-public elements of such Acquired
Intellectual Property, and (C) to the extent not assignable by Law, a waiver of such Person’s moral
rights in and to such Intellectual Property; (ii) to the Knowledge of Sellers, no such Person has any
obligation to any other person with respect to such Acquired Intellectual Property; (iii) to Sellers’
Knowledge, no Contributor has breached or violated any such agreement; and (iv) no current or
former Contributors, founders, members, directors, officers, employees, contractors, consultants,
or agents of the Sellers or Acquired Entities, and no governmental entity, university, college, or
educational or research institution, owns any rights, title, or interest (whether or not currently
exercisable) in or to any Acquired Intellectual Property.
Section 3.12 Data Privacy and Security.
(a) Except as would not, individually or in the aggregate, reasonably be
expected to be material to the Business, the Acquired Assets, and the Assumed Liabilities, taken
as a whole, each Seller and Acquired Entity, and the conduct of the Business, are, and since
January 1, 2022, have been, in compliance with (i): all applicable data privacy Laws; (ii) the terms
of all Contracts to which they are a party relating to Personal Information privacy, security, or
breach notification (including provisions that impose conditions or restrictions on the receipt,
collection, monitoring, maintenance, creation, transmission, processing, use, analysis, disclosure,
storage, transfer or disposal and security of Personal Information); and (iii) the policies and
procedures published by Sellers and Acquired Entities with respect to privacy, data protection,
security and the collection, transfer and use of Personal Information gathered or accessed by
Sellers or Acquired Entities in the course of the operations of the Business.
(b) Except as would not, individually or in the aggregate, reasonably be
expected to be material to the Business, the Acquired Assets, and the Assumed Liabilities, taken
as a whole, Sellers and the Acquired Entities have established, and, to the Knowledge of Sellers,
are and have been since January 1, 2022, in compliance with an information security program that:
(i) implements commercially reasonable and appropriate administrative, technical, and physical
safeguards designed to protect the security, confidentiality, and integrity of all IT Assets; (ii) is
designed to prevent unauthorized access, use, or disclosure of Personal Information and other data
processed or stored in the IT Assets; (iii) materially complies with all applicable Information
Privacy and Security Laws; and (iv) is reasonably reflected in written policies of the Sellers and
Acquired Entities.
(c) Except as would not, individually or in the aggregate, reasonably be
expected to be material to the Business, the Acquired Assets, and the Assumed Liabilities, taken
as a whole, since January 1, 2022, there have been no unauthorized intrusions into the information
technology systems owned by any Seller or Acquired Entity, and no Seller or Acquired Entity has
suffered or incurred a “breach,” “breach of unsecured PHI,” or “security breach” (or similar terms
such as “breach of security of the system”) as defined by applicable data privacy and security
Laws, or unauthorized or unlawful acquisition, access, use, or disclosure of any Personal
Information owned, used, stored, or controlled in connection with the Business.
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Section 3.13 Tax Matters. Except as would not, individually or in the aggregate,
reasonably be expected to be material to the Business, the Acquired Assets and the Assumed
Liabilities, taken as a whole:
(a) Each Seller and Acquired Entity (or its applicable Affiliate) has prepared
(or caused to be prepared) and timely filed (taking into account valid extensions of time within
which to file) all income and other material Tax Returns with respect to the Acquired Assets, the
Assumed Liabilities, the Business and the Transferred Employees required to be filed by it, and
all income and other material Tax Returns required to be filed by the Acquired Entities have been
timely filed (taking into account valid extensions of time within which to file), and all such filed
Tax Returns (taking into account all amendments thereto) are true, complete and accurate in all
material respects.
(b) All material Taxes with respect to the Acquired Assets, the Assumed
Liabilities, the Business or the Transferred Employees owed by a Seller that are due, and all
material Taxes required to be paid by an Acquired Entity, in each case that are due whether or not
shown on any Tax Return, have been timely paid or have been adequately reserved against in
accordance with GAAP, except, solely with respect to the Acquired Assets, to the extent the
nonpayment thereof is permitted or required by the Bankruptcy Code without the Purchaser or any
of its Affiliates being liable for such Taxes.
(c) There are no Encumbrances for Taxes on any of the Acquired Assets or
assets of the Acquired Entities other than Encumbrances for Taxes that are not yet due and payable.
(d) No Seller or Acquired Entity has received any written notice from a
jurisdiction where such Seller or Acquired Entity does not currently file Tax Returns indicating
that such filings may be required in such jurisdiction with respect to the Acquired Assets or the
Business or the Acquired Entity, or that the Acquired Assets or Acquired Entity may otherwise be
subject to taxation by the applicable taxing authority in such jurisdiction. No Acquired Entity has
a permanent establishment or fixed place of business in any country other than its country of
organization.
(e) None of the Sellers or the Acquired Entities has waived any statute of
limitations in respect of Taxes with respect to the Acquired Assets, the Assumed Liabilities, the
Business or the Transferred Employees or Taxes of the Acquired Entities or agreed to any
extension of time with respect to an assessment or deficiency for Taxes with respect to the
Acquired Assets, the Assumed Liabilities, the Business, the Transferred Employees, or the
Acquired Entities (in each case, other than pursuant to automatic extensions of time to file Tax
Returns obtained in the Ordinary Course), in each case, which waiver or extension is currently in
force and would have effect after the Closing Date.
(f) Except to the extent that doing so would not adversely impact the Acquired
Assets or the Acquired Entities or Purchaser’s ownership of the Acquired Assets or Acquired
Entities, none of the Acquired Entities or Sellers has participated in any “listed transaction” within
the meaning of 26 C.F.R. § 1.6011-4(b)(2).
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(g) No Seller or Acquired Entity (or any applicable Affiliate of any Seller or
Acquired Entity) has received any written notice of audit, procedure, proceeding or contest, and is
not undergoing any audit, procedure, proceeding or contest, of Tax Returns or Taxes relating to
the Business or the Acquired Assets or relating to the Acquired Entities. No Seller or Acquired
Entity (or any applicable Affiliate of any Seller or Acquired Entity) has ever received any notice
of deficiency or assessment from any taxing authority with respect to any Liability for Taxes
relating to the Business or the Acquired Assets or relating to the Acquired Entities which has not
been fully paid or finally settled. Each Seller and each Acquired Entity (and any applicable
Affiliate of such Seller or Acquired Entity) has complied with all applicable Laws relating to the
payment and withholding of Taxes and has withheld all amounts required by Law to be withheld
from the wages or salaries of employees and independent contractors relating to the Business or
the Acquired Assets or relating to the Acquired Entities (or any other amount payable to any other
Person) and is not liable for any Taxes with respect to the employees and independent contractors
relating to the Business or the Acquired Assets or relating to the Acquired Entities (or any such
other Person) for failure to comply with such Laws, except for such Liabilities with respect to
which none of Purchaser or any applicable Affiliate of Purchaser would be liable after the Closing.
(h) The current U.S. federal income Tax classification of each Acquired Entity
is a C corporation. No Acquired Entity has made an election to be treated as a “domestic
corporation” under Section 897(i) of the Tax Code.
(i) Except as set forth on Schedule 3.13(i), each Acquired Entity that is
organized outside the United States is a controlled foreign corporation as described in Section 957
of the Tax Code.
(j) No Acquired Entity which is organized outside the United States (a) has any
United States real property interests as described in Section 897 of the Tax Code, or (b) is engaged
in the conduct of a trade or business in the United States.
(k) No Acquired Entity has participated in or is currently participating in a
“listed transaction” within the meaning of Section 6707A(c) of the Tax Code or Treasury
Regulation Section 1.6011-4(b).
(l) Each Acquired Entity has collected, remitted and reported to the appropriate
Tax authority all material sales, use and value added Taxes required to be so collected, remitted or
reported pursuant to all applicable Laws. Each Acquired Entity has complied in all material
respects with all applicable Laws relating to record retention (including to the extent necessary to
claim any exemption from sales or value added Tax collection and maintaining adequate and
current resale certificates to support any such claimed exemption).
(m) (i) None of the Sellers, in each case with respect to the Business, the
Acquired Assets or the Assumed Liabilities, or any Acquired Entity is a party to or bound by any
written Tax allocation, Tax indemnification or Tax sharing agreement or arrangement under which
it would have any past or continuing liabilities after the Closing Date (other than any such
agreement entered into on customary commercial terms in the Ordinary Course the primary
purpose of which does not relate to any Taxes or any such agreement solely among the Acquired
Entities).
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(n) Notwithstanding anything in this Agreement to the contrary, the
representations and warranties in this Section 3.13 and in Section 3.14 (insofar as they relate to
Taxes) shall constitute the sole representations and warranties in this Agreement with respect to
Taxes and no representation or warranty set forth in this Section 3.13 or in Section 3.14 (insofar
as it relates to Taxes) shall be deemed to apply directly or indirectly with respect to any Seller
Combined Tax Return. No representation or warranty is made with respect to the validity of any
Tax position or the availability of any Tax attribute for any Tax period (or any portion thereof)
following the Closing.
Section 3.14 Employee Benefit Plans
(a) Schedule 3.14(a) sets forth a list of each Employee Benefit Plan in which
(i) the Business Employees; and (ii) the Transfer Regulations Employees participate or are eligible
to participate and separately identifies each that is an Acquired Entity Benefit Plan. With respect
to each Acquired Entity Benefit Plan, Sellers have made available to Purchaser copies (to the extent
applicable) of: (i) the current summary plan description or a written description of the material
terms thereof, other than any document that any Seller is prohibited from making available to
Purchaser as the result of applicable Law relating to the safeguarding of data privacy, (ii) each
trust or other funding arrangement and (iii) the most recent financial statements and actuarial
report.
(b) Each Employee Benefit Plan intended to be “qualified” within the meaning
of Section 401(a) of the Tax Code has received a favorable determination letter from the Internal
Revenue Service or is entitled to rely upon a favorable opinion letter issued by the Internal Revenue
Service. To the Knowledge of Sellers, there are no existing circumstances or any events that have
occurred that would reasonably be expected to cause the loss of any such qualification status of
any such Employee Benefit Plan. There are no pending, or to the Knowledge of Sellers, threatened
claims (other than routine claims for benefits) by, on behalf of or against any Employee Benefit
Plan, and no prohibited transaction within the meaning of Section 4975 of the Tax Code or Section
406 of ERISA has occurred with respect to any Employee Benefit Plan, which could reasonably
be expected to result in any material Liability to Purchaser, no material audit or other proceeding
by a Governmental Body is pending, or to the Knowledge of Sellers, threatened with respect to
any Employee Benefit Plan. Each Employee Benefit Plan complies in form and in operation in all
material respects with its terms and applicable Laws, including the applicable requirements of the
Tax Code and ERISA, except as would not reasonably be expected to be material to Purchaser. No
Employee Benefit Plan provides for any form of defined benefit pension or final salary linked
pension in respect of which any Transfer Regulations Employee has or would have any rights or
Purchaser would incur any Liabilities.
(c) None of the Acquired Entities has any obligation to provide (or contribute
toward the cost of), post-employment or post-termination benefits of any kind, including death and
medical benefits, with respect to any current or former officer, employee, agent, director or
independent contractor of Sellers or the Acquired Entities or any of their respective Subsidiaries,
except to the extent required by COBRA and at the covered individual’s sole expense.
(d) None of the Sellers or the Acquired Entities maintains, contributes to, or has
any Liability (including on account of an ERISA Affiliate) with respect to any (i) pension plan that
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is subject to Title IV of ERISA or Section 412 of the Tax Code, (ii) “multiemployer plan” (as
defined in Section 4001(a)(3) of ERISA), or (iii) “multiple employer welfare arrangement” within
the meaning of Section 3(40) of ERISA, (iv) plan described in Section 413 of the Tax Code or
(v) “nonqualified deferred compensation plan” within the meaning of Section 409A of the Tax
Code.
(e) Neither the consummation of the Transactions nor any termination of
employment or service or any other event in connection with such Transactions, will individually
or together with some other event (i) entitle any Business Employee to any payment; (ii) increase
the amount or value of any benefit or compensation or other obligation payable or required to be
provided to any Business Employee or Transfer Regulations Employee; (iii) accelerate the time of
payment or vesting of amounts due to any Business Employee or Transfer Regulations Employee
or accelerate the time of any funding (whether to a trust or otherwise) of compensation or benefits
in respect of any Employee Benefit Plan; or (iv) result in any “disqualified individual” with respect
to any Seller or Acquired Entity receiving any “excess parachute payment” (as each such term is
defined in Section 280G of the Tax Code), determined without regard to any arrangements that
may be implemented by, or at the direction of, Purchaser or any of its Affiliates.
(f) Each Acquired Entity Benefit Plan (i) has, at all times since January 1, 2022,
been maintained, operated and administered in compliance with its terms and in compliance in all
material respects with applicable Laws; (ii) if required to be registered or approved by a non-U.S.
Governmental Body, has been registered or approved and has been maintained in good standing
with applicable regulatory authorities, and, to the Knowledge of Sellers, no event has occurred
since the date of the most recent approval or application therefor relating to any such Acquired
Entity Benefit Plan that could reasonably be expected to adversely affect any such approval or
good standing; (iii) that is intended to qualify for special Tax treatment meets all requirements for
such treatment; (iv) if required to be funded or insured to any extent, is funded or fully insured as
required under with applicable Laws; and (v) is not subject to any pending or, to the Knowledge
of Sellers, threatened claims by or on behalf of any participant in such Acquired Entity Benefit
Plan, or otherwise involving such Acquired Entity Benefit Plan or the assets of such Acquired
Entity Benefit Plan, other than routine claims for benefits.
Section 3.15 Employees.
(a) None of Sellers (with respect to the Business or Business Employees or
Transfer Regulations Employees) or Acquired Entities is party to any collective bargaining
agreements or similar labor-related Contracts with any labor union, trade union, works council or
similar labor organization representing any Business Employees. There is no written demand from
any labor union, worker representation body or labor organization seeking recognition as the
bargaining representative of any Business Employees by any Seller or Acquired Entity and there
is no pending or, to the Knowledge of Sellers, threatened, strike, lockout, organized labor
slowdown, or concerted work stoppage by any Business Employees.
(b) Sellers and the Acquired Entities (with respect to the Business or Business
Employees and each Transferred Employee or Transfer Regulations Employee) are in compliance
in all material respects with all applicable Laws respecting employment practices and labor,
including those related to wages and hours, collective bargaining, unemployment insurance,
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workers’ compensation, immigration, harassment and discrimination, disability rights and
benefits, affirmative action, and employee layoffs.
(c) There is no Action pending or, to the Knowledge of Sellers, threatened in
writing against any Seller (with respect to the Business or Business Employees or Transferred
Employee) or any Acquired Entity alleging a violation of any applicable labor or employment Law
brought by any Business Employee before any Governmental Body.
(d) Other than as set forth on Schedule 3.15(d), every Person employed or
engaged by the Acquired Entities is assigned to working primarily in the Business.
Section 3.16 Insurance. Schedule 3.16 sets forth a description of all material insurance
policies maintained by Sellers or the Acquired Entities, other than any policies maintained in
connection with an Employee Benefit Plan (the “Business Insurance Policies”). All such Business
Insurance Policies are in full force and effect. No Seller or any Acquired Entity since January 1,
2023, has received written notice from any insurer or agent of such insurer with respect to the
cancellation or termination of any such Business Insurance Policies.
Section 3.17 Affiliate Transactions. Except for (a) the exclusion of the Excluded Assets,
(b) the corporate-level services provided to the Business by Vyaire and its Affiliates, (c) the matters
set forth in Schedule 3.17 and (d) arrangements on an arms-length basis, no Affiliate of any Seller
or Acquired Entity (other than any of the Sellers, the Non-Debtors, and the Acquired Entities
themselves) (i) owns any material property or right, tangible or intangible, that is Related to the
Entire Business or (ii) owes any money to, or is owed any money by, the Business.
Section 3.18 Sufficiency of Assets. Subject to Bankruptcy Court approval, entry of the
Bidding Procedures and Sale Orders and assumption by the applicable Seller or Acquired Entity
of the applicable Contract in accordance with applicable Law (including satisfaction of any
applicable Cure Costs), except (i) for the exclusion of all Cash and Cash Equivalents of Sellers, all
bank accounts, and all deposits or prepaid or deferred charges and expenses, and all financing
engagements, letters of credit and similar support instruments, (ii) Excluded Contracts,
(iii) Employee Benefit Plans, (iv) insurance policies, (v) employees that do not become
Transferred Employees and (vi) the assets, properties and rights and enterprise-wide services and
benefits provided to the Business by Seller and its Subsidiaries described in Schedule 3.18, the
Acquired Assets (A) constitute all of the material assets, properties and rights owned, leased or
licensed by Seller, Acquired Entities or its Subsidiaries that are Related to the Entire Business as
it is currently being conducted and (B) are sufficient to operate the Business immediately after the
Closing in all material respects as the Business is currently conducted.
Section 3.19 Brokers. Except for PJT Partners, Inc. (“PJT Partners”), the fees and
expenses of which will be paid by Sellers, no broker, investment banker, financial advisor or other
Person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission,
or the reimbursement of expenses in connection therewith, in connection with the Transactions
based upon arrangements made by or on behalf of Sellers.
Section 3.20 Critical Technology. Sellers and the Acquired Entities do not produce,
design, test, manufacture, fabricate, or develop, and the Acquired Assets do not constitute, one or
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more “critical technologies” within the meaning of the Defense Production Act of 1950, as
amended, including all implementing regulations thereof.
Section 3.21 Absence of Certain Changes. Except as set forth on Schedule 3.21, since
January 1, 2022, (a) Sellers and the Acquired Entities have conducted their business in the
Ordinary Course in all material respects (other than the marketing of the Business and processes
and negotiations with Advisors and third parties in connection therewith, and preparation and
commencement or pendency of the Bankruptcy Cases and actions related thereto), (b) there has
not been any Material Adverse Effect and (c) there has been business interruption at any of the
facilities, plants, offices, laboratories, warehouses, distribution centers and other properties
(including at any Acquired Leased Real Property), in each case, of the Business that would
reasonably be expected to be material to the Business.
Section 3.22 No Other Representations or Warranties. Except for the representations
and warranties expressly contained in this Article III (as qualified by the Schedules and in
accordance with the express terms and conditions (including limitations and exclusions) of this
Agreement) or the certificate to be delivered pursuant to Section 2.4(f) (the “Express
Representations”) (it being understood that Purchaser and the Purchaser Group have relied only
on such Express Representations and warranties), Purchaser acknowledges and agrees, on its own
behalf and on behalf of the Purchaser Group, that no Seller, Acquired Entity nor any other Person
on behalf of any Seller or any Acquired Entity makes, and neither Purchaser nor any member of
the Purchaser Group has relied on, is relying on, or will rely on the accuracy or completeness of
any express or implied representation or warranty with respect to any Seller, the Acquired Entities,
the Business or any of their other businesses, the other Acquired Assets, or the Assumed Liabilities
or with respect to any information, statements, disclosures, documents, projections, forecasts or
other material of any nature made available or provided by any Person (including in any
presentations or other materials prepared by PJT Partners) (the “Information Presentation”) or in
that certain Project Crystal datasite administered by Datasite, (the “Dataroom”) or elsewhere to
Purchaser or any of its Affiliates or Advisors on behalf of Sellers or any Acquired Entity or any of
their Affiliates or Advisors. Without limiting the foregoing, no Seller or Acquired Entity or any of
its Advisors nor any other Person will have or be subject to any Liability whatsoever to Purchaser,
or any other Person, resulting from the distribution to Purchaser or any of its Affiliates or Advisors,
or Purchaser’s or any of its Affiliates’ or Advisors’ use of or reliance on, any such information,
including the Information Presentation, the Projections, any information, statements, disclosures,
documents, projections, forecasts or other material made available to Purchaser or any of its
Affiliates or Advisors in the Dataroom or otherwise in expectation of the Transactions or any
discussions with respect to any of the foregoing information. Notwithstanding the foregoing,
nothing contained in this Section 3.22 shall limit or otherwise impair in any manner Purchaser’s
right to make a claim for Fraud.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Sellers as of the date hereof as follows.
Section 4.1 Organization and Qualification. Purchaser is a corporation duly formed,
validly existing and in good standing under the Laws of the Commonwealth of Massachusetts and
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has all requisite power and authority necessary to carry on its business as it is now being conducted,
except (other than with respect to Purchaser’s due formation and valid existence) as would not,
individually or in the aggregate, reasonably be expected to have a material adverse effect on
Purchaser’s ability to consummate the Transactions. Purchaser is duly licensed or qualified to do
business and is in good standing (where such concept is recognized under applicable Law) in each
jurisdiction in which the nature of the business conducted by it or the character or location of the
properties and assets owned or used by it makes such licensing or qualification necessary, except
where the failure to be so licensed, qualified or in good standing would not, individually or in the
aggregate, reasonably be expected to have a material adverse effect on Purchaser’s ability to
consummate the Transactions.
Section 4.2 Authorization of Agreement. Purchaser has all necessary power and
authority to execute and deliver this Agreement and the Transaction Agreements and to perform
its obligations hereunder and to consummate the Transactions. The execution, delivery and
performance by Purchaser of this Agreement, and the consummation by Purchaser of the
Transactions, subject to requisite Bankruptcy Court approvals, have been duly authorized by all
requisite corporate or similar organizational action and no other corporate or similar organizational
proceedings on its part are necessary to authorize the execution, delivery and performance by
Purchaser of this Agreement and the consummation by it of the Transactions. Subject to requisite
Bankruptcy Court approvals, this Agreement has been duly executed and delivered by Purchaser
and, assuming due authorization, execution and delivery hereof by the other Parties, constitutes a
legal, valid and binding obligation of Purchaser, enforceable against Purchaser in accordance with
its terms, except that such enforceability may be limited by the Enforceability Exceptions.
Section 4.3 Conflicts; Consents.
(a) Assuming that (i) the Sale Order, and all other requisite Bankruptcy Court
approvals are obtained and (ii) the notices, authorizations, approvals, Orders, permits or consents
set forth on Schedule 4.3(a) are made, given or obtained (as applicable), neither the execution and
delivery by Purchaser of this Agreement, nor the consummation by Purchaser of the Transactions,
nor performance or compliance by Purchaser with any of the terms or provisions hereof, will
(A) conflict with or violate any provision of Purchaser’s Organizational Documents, (B) violate
any Law or Order applicable to Purchaser, (C) violate or constitute a breach of or default (with or
without notice or lapse of time, or both) under or give rise to a right of termination, modification,
or cancelation of any obligation or to the loss of any benefit, any of the terms or provisions of any
loan or credit agreement or other material Contract to which Purchaser is a party or accelerate
Purchaser’s obligations under any such Contract, or (D) result in the creation of any Encumbrance
(other than a Permitted Encumbrance) on any properties or assets of Purchaser or any of its
Subsidiaries, except, in the case of clauses (A) through (D), as would not, individually or in the
aggregate, reasonably be expected to prevent or materially impair, alter or delay the ability of
Purchaser to consummate the Transactions.
(b) Except as set forth on Schedule 1.1(a), Purchaser is not required to file, seek
or obtain any notice, authorization, approval, Order, permit or consent of or with any
Governmental Body in connection with the execution, delivery and performance by Purchaser of
this Agreement or the consummation by Purchaser of the Transactions, except where failure to
obtain such consent, approval, authorization or action, or to make such filing or notification, would
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not, individually or in the aggregate, reasonably be expected to prevent or materially impair, alter
or delay the ability of Purchaser to consummate the Transactions.
Section 4.4 Financing. Purchaser has, and will have at the Closing, sufficient funds in
an aggregate amount necessary to pay the Purchase Price, to perform the Assumed Liabilities as
they become due in accordance with their terms and to consummate all of the other Transactions,
including the payment of the Purchase Price and all fees, expenses of, and other amounts required
to be paid by, Purchaser in connection with Transactions and does not know of any circumstance
or condition that would reasonably be expected to prevent or substantially delay the availability of
such funds or otherwise impair such capability at the Closing and such other dates that such
obligations and transactions are required to be satisfied pursuant to the terms hereof. Purchaser
affirms that it is not a condition to Closing or to any of its obligations under this Agreement that
Purchaser obtains financing for the Transactions. Purchaser is and shall be capable of satisfying
the conditions contained in sections 365(b)(1)(C) and 365(f) of the Bankruptcy Code with respect
to the Assigned Contracts and the related Assumed Liabilities.
Section 4.5 Brokers. There is no investment banker, broker, finder, or other
intermediary which has been retained by or is authorized to act on behalf of Purchaser that might
be entitled to any fee or commission in connection with the Transactions.
Section 4.6 No Litigation. There are no Actions pending or, to Purchaser’s knowledge,
threatened against or affecting Purchaser that will or would reasonably be expected to adversely
affect Purchaser’s performance of its obligations under this Agreement or the consummation of
the Transactions.
Section 4.7 Investment Representation; Investigation. Purchaser is acquiring the
Equity Interests of the Acquired Entities for its own account with the present intention of holding
such securities for investment purposes and not with a view to, or for sale in connection with, any
distribution of such securities in violation of any federal or state securities Laws. Purchaser is an
“accredited investor” within the meaning of Regulation D promulgated pursuant to the Securities
Act. Purchaser is knowledgeable about the industries in which the Acquired Entities operate and
is capable of evaluating the merits and risks of the Transactions and is able to bear the substantial
economic risk of such investment for an indefinite period of time. Purchaser has been afforded full
access to the books and records, facilities and personnel of the Acquired Entities for purposes of
conducting a due diligence investigation and has conducted a full due diligence investigation of
the Acquired Entities and is satisfied with the access and materials made available to it in
connection with such investigation and the scope and results of such investigation.
Section 4.8 Certain Arrangements. As of the date hereof, there are no Contracts,
undertakings, commitments, agreements or obligations, whether written or oral, between any
member of the Purchaser Group, on the one hand, and any member of the management of any
Seller or its respective board of directors (or applicable governing body of any Affiliate of any
Seller), any holder of equity or debt securities of any Seller, or any lender or creditor of any Seller
or any Affiliate of any Seller, on the other hand, (a) relating in any way to the acquisition of the
Acquired Assets or the Transactions or (b) that would be reasonably likely to prevent, restrict,
impede or affect adversely the ability of any Seller or any of its Affiliates to entertain, negotiate or
participate in any such transactions.
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Section 4.9 Solvency. Purchaser is, and immediately after giving effect to the
Transactions each of Purchaser and the Acquired Entities shall be, solvent and at all times shall:
(a) be able to pay its debts as they become due; (b) own property that has a fair saleable value
greater than the amounts required to pay its debt (including a reasonable estimate of the amount of
all contingent Liabilities) and (c) have adequate capital to carry on its business. No transfer of
property is being made and no obligation is being incurred in connection with the Transactions
with the intent to hinder, delay or defraud either present or future creditors of Purchaser or any
Acquired Entity. In connection with the Transactions, Purchaser has not incurred, nor plans to
incur, debts beyond its ability to pay as they become absolute and matured.
Section 4.10 WARN Act and Mass Layoffs. Purchaser does not currently plan or
contemplate any plant closings, reduction in force, terminations of Transferred Employees, or
similar personnel actions impacting Transferred Employees that would trigger obligations under
the WARN Act or similar Laws within one year after the Closing Date.
Section 4.11 No Additional Representations or Warranties. Except for the
representations and warranties contained in this Article IV or the certificate to be delivered
pursuant to Section 2.5(e), Sellers acknowledge that neither Purchaser nor any other Person on
behalf of Purchaser makes any other express or implied representation or warranty with respect to
Purchaser or with respect to any other information provided to Sellers by Purchaser. Sellers
acknowledge and agree that they (i) have been afforded the opportunity to ask questions of and
receive answers from officers and other key employees of Purchaser and (ii) have conducted their
own independent investigation of Purchaser, and have not relied on any representation, warranty
or other statement by any Person on behalf of Purchaser, other than the representations and
warranties of Purchaser expressly contained in Article IV or the certificate to be delivered pursuant
to Section 2.5(e), and that all other representations and warranties are specifically disclaimed.
ARTICLE V
BANKRUPTCY COURT MATTERS
Section 5.1 Bankruptcy Actions.
(a) The bidding procedures to be employed with respect to this Agreement shall
be those reflected in the Bidding Procedures Order. Purchaser agrees and acknowledges that
Sellers, including through their representatives, are and may continue soliciting inquiries,
proposals or offers from third parties in connection with any Alternative Transaction pursuant to
the terms of the Bidding Procedures Order. Sellers may modify the Sale Order pursuant to
discussions with the United States Trustee assigned to the Bankruptcy Case, the Bankruptcy Court,
any creditor or committee representing a group of creditors in the Bankruptcy Case, or any other
party in interest, with such modifications being acceptable to Purchaser in its sole discretion (not
to be unreasonably withheld).
(b) From the date hereof until the earlier of (i) the termination of this Agreement
in accordance with Article VIII and (ii) the Closing Date, the Parties shall use their respective
commercially reasonable efforts to obtain entry by the Bankruptcy Court of the Sale Order.
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(c) Purchaser shall promptly take all actions as are reasonably requested by
Sellers to assist in obtaining the Bankruptcy Court’s entry of the Sale Order and any other Order
reasonably necessary in connection with the Transactions as promptly as practicable, including
furnishing affidavits, financial information, or other documents or information for filing with the
Bankruptcy Court and making such employees and Advisors of Purchaser and its Affiliates
available to testify before the Bankruptcy Court for the purposes of, among other things, providing
necessary assurances of performance by Purchaser under this Agreement and demonstrating that
Purchaser is a “good faith” purchaser under Section 363(m) of the Bankruptcy Code, as well as
demonstrating Purchaser’s ability to pay and perform or otherwise satisfy any Assumed Liabilities
following the Closing.
(d) Each Seller and Purchaser shall (i) appear formally or informally in the
Bankruptcy Court if reasonably requested by the other Party or required by the Bankruptcy Court
in connection with the Transactions and (ii) keep the other reasonably apprised of the status of
material matters related to this Agreement, including, upon reasonable request promptly furnishing
the other with copies of notices or other communications received by Sellers from the Bankruptcy
Court with respect to the Transactions.
(e) If the Vents Auction is conducted, and Purchaser is not the prevailing party
at the conclusion of such Vents Auction (such prevailing party, the “Successful Bidder”) but is the
next highest bidder at the Vents Auction, Purchaser shall be required to serve as a back-up bidder
(the “Backup Bidder”) and keep Purchaser’s bid to consummate the Transactions on the terms and
conditions set forth in this Agreement (as the same may be revised in the Vents Auction) open and
irrevocable in accordance with the terms of the Bidding Procedures Order. If the Successful Bidder
fails to consummate the applicable Alternative Transaction as a result of a breach or failure to
perform on the part of such Successful Bidder, the Backup Bidder will be deemed to have the new
prevailing bid, and Sellers may consummate the Transactions on the terms and conditions set forth
in this Agreement (as the same may have been improved upon in the Vents Auction).
(f) Sellers and Purchaser acknowledge that this Agreement and the sale of the
Acquired Assets are subject to higher and better bids and Bankruptcy Court approval. Purchaser
acknowledges that Sellers must take reasonable steps to demonstrate that they have sought to
obtain the highest or otherwise best price for the Acquired Assets, including giving notice thereof
to the creditors of Sellers and other interested parties, providing information about Sellers to
prospective bidders, entertaining higher and better offers from such prospective bidders, and, in
the event that additional qualified prospective bidders desire to bid for the Acquired Assets,
conducting an Auction.
(g) Purchaser shall provide adequate assurance of future performance as
required under Section 365 of the Bankruptcy Code for the Assigned Contracts. Purchaser agrees
that it will take all actions reasonably required to assist in obtaining a Bankruptcy Court finding
that there has been a sufficient demonstration of adequate assurance of future performance under
the Assigned Contracts, such as furnishing affidavits, non-confidential financial information and
other documents or information for filing with the Bankruptcy Court and making Purchaser’s
Advisors available to testify before the Bankruptcy Court.
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(h) Nothing in this Section 5.1 shall prevent Sellers from modifying the bidding
procedures as necessary or appropriate to maximize value for Sellers’ estate in accordance with
Sellers’ fiduciary obligations.
Section 5.2 Cure Costs. Subject to entry of the Sale Order, Purchaser shall, on or prior
to the Closing (or, in the case of any Contract that is to be assigned following the Closing pursuant
to Section 1.5, on or prior to the date of such assignment), pay the Cure Costs and cure any and all
other defaults and breaches under the Assigned Contracts up to the Cure Cost Cap so that such
Contracts may be assumed by the applicable Seller and assigned to Purchaser in accordance with
the provisions of Section 365 of the Bankruptcy Code and this Agreement. Subject to entry of the
Sale Order, Seller shall pay at the Closing or reasonably promptly thereafter in accordance with
the Bankruptcy Code all Cure Costs in excess of the Cure Cost Cap.
Section 5.3 Sale Order. The Sale Order shall, among other things, (a) approve, pursuant
to sections 105, 363 and 365 of the Bankruptcy Code, (i) the execution, delivery and performance
by Sellers of this Agreement, (ii) the sale of the Acquired Assets to Purchaser on the terms set
forth herein and free and clear of all Encumbrances (other than Encumbrances included in the
Assumed Liabilities and Permitted Encumbrances), and (iii) the performance by Sellers of their
obligations under this Agreement, (b) authorize and empower Sellers to assume and assign to
Purchaser the Assigned Contracts, (c) find that Purchaser is a “good faith” buyer within the
meaning of Section 363(m) of the Bankruptcy Code, find that Purchaser is not a successor to any
Seller, and grant Purchaser the protections of Section 363(m) of the Bankruptcy Code, (d) find that
Purchaser shall have no Liability or responsibility for any Liability or other obligation of any Seller
arising under or related to the Acquired Assets other than as expressly set forth in this Agreement,
including successor or vicarious Liabilities of any kind or character, including any theory of
antitrust, environmental, successor, or transferee Liability, labor Law, de facto merger, or
substantial continuity, (e) find that Purchaser has provided adequate assurance (as that term is used
in Section 365 of the Bankruptcy Code) of future performance in connection with the assumption
of the Assigned Contracts and (f) find that Purchaser shall have no Liability for any Excluded
Liability. Purchaser agrees that it will promptly take such actions as are reasonably requested by
any Seller to assist in obtaining Bankruptcy Court approval of the Sale Order, including furnishing
affidavits or other documents or information for filing with the Bankruptcy Court for purposes,
among others, of (A) demonstrating that Purchaser is a “good faith” purchaser under
Section 363(m) of the Bankruptcy Code and (B) establishing adequate assurance of future
performance within the meaning of Section 365 of the Bankruptcy Code and in accordance with
the Bidding Procedures Order.
Section 5.4 Approval. Sellers’ obligations under this Agreement and in connection
with the Transactions are subject to entry of and, to the extent entered, the terms of any Orders of
the Bankruptcy Court (including entry of the Sale Order). Nothing in this Agreement shall require
Sellers or their respective Affiliates to give testimony to or submit a motion to the Bankruptcy
Court that is untruthful or to violate any duty of candor or other fiduciary duty to the Bankruptcy
Court or its stakeholders.
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ARTICLE VI
COVENANTS AND AGREEMENTS
Section 6.1 Conduct of the Business of Sellers.
(a) Except (i) as required by applicable Law, Order or a Governmental Body,
(ii) any limitations on operations imposed by the Bankruptcy Court or the Bankruptcy Code or
Sellers’ debtor-in-possession financing or use of cash collateral, as the case may be, (iii) as
expressly contemplated, required or permitted by this Agreement (including in connection with
the Restructuring Transactions), (iv) to the extent related to an Excluded Asset or an Excluded
Liability or (v) as set forth on Schedule 6.1, during the period from the date of this Agreement
until the Closing (or such earlier date and time on which this Agreement is terminated pursuant to
Article VIII), unless Purchaser otherwise consents in writing, Sellers shall use their commercially
reasonable efforts to carry on the Business in the Ordinary Course and to cause the Acquired
Entities to carry on the Business in the Ordinary Course; provided that no action by any Seller with
respect to matters specifically addressed by Section 6.1(b) shall be deemed to be a breach of this
Section 6.1(a) unless such action would constitute a breach of Section 6.1(b).
(b) Except (i) as required by applicable Law, Order or a Governmental Body,
(ii) any limitations on operations imposed by the Bankruptcy Court or the Bankruptcy Code or
Sellers’ debtor-in-possession financing or use of cash collateral, as the case may be, (iii) as
expressly contemplated, required or permitted by this Agreement (including in connection with
the Restructuring Transactions), (iv) to the extent related to an Excluded Asset or an Excluded
Liability or (v) as set forth on Schedule 6.1, during the period from the date of this Agreement
until the Closing (or such earlier date and time on which this Agreement is terminated pursuant to
Article VIII), unless Purchaser otherwise consents in writing, Sellers and the Acquired Entities
shall not take any of the following actions with respect to the Business:
(i) (A) other than transactions among the Sellers and the Acquired
Entities, issue, sell, encumber or grant any shares of the capital stock or other equity or
voting interests of the Acquired Entities, or any securities or rights convertible into,
exchangeable or exercisable for, or evidencing the right to subscribe for any shares of such
capital stock or other equity or voting interests, or any rights, warrants or options to
purchase any shares of such capital stock or other equity or voting interests; (B) other than
transactions among the Sellers and the Acquired Entities, redeem, purchase or otherwise
acquire any of the outstanding shares of capital stock or other equity or voting interests of
the Acquired Entities, or any rights, warrants or options to acquire any shares of such
capital stock or other equity or voting interests, (C) establish a record date for, declare, set
aside for payment or pay any dividend on, or make any other distribution in respect of, any
shares of the capital stock or other equity or voting interests of the Acquired Entities, other
than dividends and distributions by an Acquired Entity to another Acquired Entity, or (D)
split, combine, subdivide or reclassify any shares of the capital stock or other equity or
voting interests of the Acquired Entities, except, in each case, to the extent permitted under
the terms of any Employee Benefit Plan;
(ii) (A) incur, assume or otherwise become liable for any indebtedness
for borrowed money, issue or sell any debt securities or rights to acquire any debt securities
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of Sellers or the Acquired Entities, guarantee any such indebtedness or any debt securities
of another Person or enter into any “keep well” or other agreement to maintain any financial
statement condition of another Person (collectively, “Indebtedness”), except for
Indebtedness incurred under arrangements that do not relate to the Business, are not
secured by the Acquired Assets and that the Acquired Entities are not responsible for
(whether as borrowers or guarantors), other than Excluded Liabilities, (B) enter into any
swap or hedging transaction or other derivative agreements other than in the Ordinary
Course or (C) make any loans, capital contributions or advances to, or investments in, any
Person other than (1) as permitted pursuant to Section 6.1(b)(v) or (2) in the Ordinary
Course; provided that any such actions in the immediately foregoing clauses (A), (B) or
(C) do not give rise to an Assumed Liability;
(iii) sell or lease to any Person, in a single transaction or series of related
transactions, any of the Acquired Assets, except (A) Ordinary Course dispositions of
Inventory and dispositions of obsolete, surplus or worn out assets or assets that are no
longer used or useful in the conduct of the Business, (B) transfers among the Sellers and
the Acquired Entities, (C) leases or subleases of real property under which a Seller or
Acquired Entity is a tenant or a subtenant and voluntary terminations or surrenders of such
leases or subleases, in each case following prior good faith consultation with Purchaser,
and (D) other sales and leases in the Ordinary Course;
(iv) make or authorize capital expenditures, including for property, plant
and Equipment, except for those (A) in connection with the repair or replacement of
facilities, properties or assets destroyed or damaged due to casualty or accident (whether
or not covered by insurance), or (B) in accordance with the business plan or capital
expenditure budget made available to Purchaser;
(v) except as permitted under Section 6.1(b)(v), and except for
acquisitions made with Purchaser’s prior written consent, make any acquisition of, or
investment in, any properties, assets, securities or business (including by merger), except
in the Ordinary Course (which for the avoidance of doubt and without limitation of the
foregoing shall be deemed to include acquisitions of Inventory in the Ordinary Course);
(vi) except (A) in the Ordinary Course or (B) as permitted pursuant to
the terms of any Employee Benefit Plan, (1) grant to any Business Employee any increase
in compensation (including bonus or long-term incentive opportunities), (2) hire any
employee whose base salary exceeds $150,000, per annum, (3) establish, adopt, enter into,
amend or terminate any material Employee Benefit Plan or (4) take any action to accelerate
any rights or benefits of any Business Employee under any Employee Benefit Plan;
provided that the foregoing shall not restrict any Seller from (x) entering into or making
available, to newly hired employees or to employees in the context of promotions based on
job performance or workplace requirements, in each case, for the avoidance of doubt, in
the Ordinary Course, plans, agreements, benefits and compensation arrangements
(including incentive grants) that have a value that is consistent with the past practice of
making compensation and benefits available to newly hired or promoted employees in
similar positions or (y) taking any action or establishing any Employee Benefit Plan or
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other compensation or benefit plan that is not targeted at, and does not cover any, Business
Employees or that will not result in Purchaser bearing Liability therefore after the Closing;
(vii) make any material changes in financial accounting methods,
principles or practices materially affecting the consolidated assets, Liabilities or results of
operations of Sellers or the Acquired Entities with respect to the Business, except insofar
as may be required (A) by GAAP (or any interpretation thereof), (B) by any applicable
Law or (C) by any Governmental Body or quasi-governmental authority (including the
Financial Accounting Standards Board or any similar organization);
(viii) grant any Encumbrance (other than Permitted Encumbrances) on
any of its Acquired Assets other than to secure Indebtedness and other obligations in
existence at the date of this Agreement (and required to be so secured by their terms) or
permitted under Section 6.1(b)(ii); provided any such Encumbrance would be extinguished
in connection with the Closing;
(ix) settle any pending or threatened Action against any Seller or
Acquired Entity that is Related to the Acquired Business or to the extent related to the
Acquired Assets or the Assumed Liabilities (other than with respect to Taxes (excluding
Actions relating to Taxes of the Acquired Entities; provided that Purchaser’s consent with
respect to settling Actions relating to Taxes of the Acquired Entities shall not be
unreasonably withheld, conditioned or delayed) or solely to the extent related to Excluded
Liabilities);
(x) (A) terminate, reject amend, supplement, modify, assign or waive
any provision of, or accelerate any rights, benefits or obligations under, any Material
Contract, except the expiration in accordance with its term, (B) enter into any Contract that
would be a Material Contract if executed prior to the date of this Agreement or which
would result in an aggregate obligation of Sellers in excess of $250,000, except for (1) any
renewal of any customer Contract in the Ordinary Course upon terms and conditions which
are not less favorable in the aggregate to the Sellers or the Acquired Entities than those in
effect as of the date of this Agreement and (2) any renewal of any other such Contract in
the Ordinary Course upon terms and conditions which are no less favorable to the Sellers
or the Acquired Entities, in any material respect, than those in effect as of the date of this
agreement;
(xi) (A) abandon, cancel, fail to renew, or permit to lapse any Acquired
Intellectual Property that is used in and material to the conduct of the Business, other than
pursuant to expiration of any such Intellectual Property at the end of its maximum term, or
(B) sell, transfer, license or otherwise encumber any material Acquired Intellectual
Property, other than licenses of Acquired Intellectual Property in the Ordinary Course;
(xii) amend in any material respect, cancel or permit to terminate any
insurance policy naming any Seller or Acquired Entity as an insured, a beneficiary or a loss
payable payee without first obtaining comparable substitute insurance coverage with no
lapse in coverage;
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(xiii) make, revoke or change any material Tax election or any method of
Tax accounting, settle or compromise or enter into any contractual arrangement in respect
of any material Tax liability, file an amended Tax Return, enter into any closing agreement
relating to any material Tax, enter into any voluntary disclosure or similar program with
respect to any material Tax, agree to any extension of a statute of limitations with respect
to any material Tax or income or other material Tax Return, or surrender any right to claim
a material Tax refund, in each case, to the extent such action would reasonably be expected
to adversely affect either (1) any Acquired Asset, Assumed Liability, Acquired Entity or
the Business or (2) the Purchaser’s (or any of Purchaser’s applicable Affiliate’s), ownership
or assumption of the Acquired Assets, Assumed Liabilities, Acquired Entities or the
Business, in each case, after the Closing;
(xiv) enter into any purchase order other than purchase orders that either
(a) are previously approved by Purchaser or (b) do not include obligations in excess of
$[300,000]; or
(xv) authorize any of, or commit or agree, in writing or otherwise, to take
any of, the foregoing actions.
(c) Nothing contained in this Agreement is intended to give Purchaser or its
Affiliates, directly or indirectly, the right to control or direct the Business (or the other business of
Sellers and their Affiliates) prior to the Closing, and nothing contained in this Agreement is
intended to give any Seller, directly or indirectly, the right to control or direct Purchaser’s or its
Subsidiaries’ operations. Prior to the Closing, each of Purchaser and Sellers shall exercise,
consistent with the terms and conditions of this Agreement, complete control and supervision over
its and its Subsidiaries’ respective operations.
Section 6.2 Access to Information.
(a) From the date hereof until the Closing, Sellers will provide Purchaser and
its authorized Advisors with reasonable access and upon reasonable advance notice and during
regular business hours (and in accordance with the reasonable procedures established by Sellers)
to the books and records of Sellers and the Acquired Entities, in each case, to the extent Related
to the Entire Business, in order for Purchaser and its authorized Advisors to access such
information regarding the Acquired Assets and the Assumed Liabilities as is reasonably necessary
in order to consummate the Transactions; provided that (i) such access does not unreasonably
interfere with the normal operations of any Seller or Acquired Entity, (ii) such access will occur
in such a manner as Sellers reasonably determine to be appropriate to protect the confidentiality
of the Transactions and such books and records, (iii) all requests for access will be directed to PJT
or such other Person(s) as Sellers or PJT may designate in writing from time to time, (iv) Sellers
and the Acquired Entities are not obligated to disclose and may redact or remove any information
that is not Related to the Entire Business, and (v) nothing herein will require Sellers to provide
access to, or to disclose any information to, Purchaser if such access or disclosure (A) would
require any Seller or Non-Debtor to disclose any financial or proprietary information of or
regarding the Affiliates of any Seller (other than any Seller or Non-Debtor) or otherwise disclose
information regarding the Affiliates of any Seller (other than any Seller or Non-Debtor) that such
Seller deems to be commercially sensitive, (B) would waive any legal privilege or (C) would be
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in violation of applicable Laws (including Foreign Competition Laws) or the provisions of any
agreement to which any Seller is bound or would violate any fiduciary duty. Nothing herein will
permit Purchaser or its Advisors to conduct any sampling or testing of environmental media or any
other invasive investigation or assessment at any Leased Real Property or any other property of
Non-Debtors, including of the type commonly known as a Phase II environmental site assessment.
(b) The information provided pursuant to this Section 6.2 will be used solely
for the purpose of consummating the Transactions and preparing for transition of the operation of
the Acquired Assets and the Business to Purchaser at Closing and will be governed by all the terms
and conditions of the Confidentiality Agreement, which Confidentiality Agreement shall not
terminate upon the execution of this Agreement notwithstanding anything to the contrary therein.
Purchaser will, and will cause its Advisors to, abide by the terms of the Confidentiality Agreement
with respect to such access and any information furnished to Purchaser or any of its Advisors.
Sellers and their Affiliates make no representation or warranty as to the accuracy of any
information, if any, provided pursuant to this Section 6.2, and Purchaser may not rely on the
accuracy of any such information, in each case, other than the Express Representations.
(c) From and after the Closing for a period of three (3) years following the
Closing Date (or, if later, the closing of the Bankruptcy Cases), Purchaser will to provide Sellers
and their Advisors with reasonable access, during normal business hours, and upon reasonable
advance notice, to the books and records, including work papers, schedules, memoranda, Tax
Returns, Tax schedules, Tax rulings, and other documents (for the purpose of examining and
copying) to the extent relating to the Acquired Assets, the Acquired Entities, the Excluded Assets,
the Assumed Liabilities or the Excluded Liabilities with respect to periods or occurrences prior to
the Closing Date, and reasonable access, during normal business hours, and upon reasonable
advance notice, to employees, officers, Advisors, accountants, offices and properties of Purchaser
(including for the purpose of better understanding the books and records). Unless otherwise
consented to in writing by Sellers, Purchaser will not, for a period of three (3) years following the
Closing Date, destroy, alter or otherwise dispose of any of such books and records without first
offering to surrender to Sellers such books and records or any portion thereof that Purchaser may
intend to destroy, alter or dispose of. From and after the Closing, Purchaser will, and will cause its
employees to, provide Sellers with reasonable assistance, support and cooperation with Sellers’
wind-down and related activities (e.g., helping to locate documents or information related to
preparation of Tax Returns or prosecution or processing of insurance/benefit claims) including
making Transferred Employees and systems included in Acquired Assets reasonably available to
provide service(s) and perform functions (consistent with their duties) for assisting in connection
with the foregoing (to the extent such Transferred Employees or systems are necessary in
connection with the foregoing); provided that (i) such assistance does not unreasonably interfere
with the normal operations of the Business, (ii) the Parties will mutually agree to a reasonable and
customary hourly rate for any material time involvement by such Transferred Employees and (iii)
the Parties will mutually agree to the reimbursement of Purchaser of any reasonable third party
costs or expenses incurred in connection herewith.
(d) Purchaser will not, and will not permit any member of the Purchaser Group
to, contact any officer, manager, director, employee, customer, supplier, lessee, lessor, lender,
licensee, licensor, distributor, noteholder or other material business relation of any Seller prior to
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the Closing with respect to any Seller, its businesses or the Transactions without the prior written
consent of such Seller for each such contact.
Section 6.3 Employee Matters.
(a) At least five (5) calendar days prior to Closing, Purchaser shall extend to
certain Business Employees employed by Sellers (as determined by Purchaser in its sole discretion
and excluding the Transfer Regulation Employees) a written offer of employment on the terms
set forth in this Section 6.3 (“Transfer Offer”) and that, if accepted, shall become effective
immediately after, and contingent upon, the Closing. Business Employees who accept such
Transfer Offers and begin employment with Purchaser or an Affiliate of Purchaser and Transfer
Regulation Employees, shall be collectively referred to herein as “Transferred Employees.” To
allow Purchaser to prepare such offers of employment, Sellers shall, except to the extent restricted
by applicable Law, (i) provide, within two (2) Business Days following the closing of the Auction,
a full employee census including each Business Employee’s name, salary, title, email, existing
reporting structure, and other employee information reasonably requested by Purchaser and (ii)
facilitate and coordinate with Purchaser to arrange interviews of such Business Employees.
Purchaser shall notify Sellers in a reasonable timeframe (but in any event within three Business
Days of receiving a response from the applicable Business Employee and no later than
immediately prior to the Closing) with respect to whether each such offer has been accepted or
rejected. Nothing herein shall be construed as a representation or guarantee by any Seller or any
of their respective Affiliates that any or all Business Employees employed by Sellers will accept
the Transfer Offer, or that any Transferred Employee will continue in employment with Purchaser
following the Closing for any period of time. Purchaser shall carry out all necessary actions to
effect the timely employment by it of each Business Employee who has accepted a Transfer Offer.
Effective as of the Closing, each Transferred Employee previously employed by Sellers shall cease
to be an employee of each Seller. For purposes of soliciting or offering employment to certain
Business Employees, Sellers shall not enforce any non-solicitation restrictions of Purchaser set
forth in the Confidentiality Agreement with respect to the period from the date of this Agreement
until the date, if any, that this Agreement is terminated.
(b) The Parties acknowledge that the Transactions may constitute a relevant
transfer for the purposes of the Transfer Regulations and, accordingly, that they will not operate
to terminate the Contract of employment of any Transfer Regulation Employee where required
under the Transfer Regulations. The Contracts of employment of each Transfer Regulation
Employee shall be transferred to Purchaser or an Affiliate of Purchaser pursuant to and where
required under the Transfer Regulations with effect from Closing. Sellers acknowledge that after
Closing, Purchaser or Affiliate of Purchaser may transfer the employment contract of any Transfer
Regulation Employee to or between any Affiliate of Purchaser and, until Closing, the Sellers agree
to provide such reasonable assistance to Purchaser or Affiliate of Purchaser as may be necessary
to prepare to effect such transfer.
(c) Without limiting the generality of any other provision of this Agreement,
Purchaser shall: (i) use commercially reasonable efforts to cause each Transferred Employee and
any employee of an Acquired Entity as of immediately before Closing to be immediately eligible
to participate, without any waiting time, in any and all benefits plan or program maintained by
Purchaser or any of its Affiliates after the Closing Date (the “Purchaser Plans”); and (ii) for
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purposes of each Purchaser Plan providing health or welfare benefits, Purchaser shall use
commercially reasonable efforts to cause all pre-existing condition exclusions and actively-at-
work requirements of such Purchaser Plan to be waived for such Transferred Employee or
Acquired Entity employee and his or her covered dependents (unless such exclusions or
requirements were applicable under comparable Employee Benefit Plans).
(d) The provisions of this Section 6.3 are for the sole benefit of the Parties and
nothing herein, express or implied, is intended or shall be construed to confer upon or give any
Person (including for the avoidance of doubt any employees of Sellers or Transferred Employees
or employees of the Acquired Entities), other than the Parties and their respective permitted
successors and assigns, any legal or equitable or other rights or remedies (with respect to the
matters provided for in this Section 6.3 or under or by reason of any provision of this Agreement).
Nothing contained herein, express or implied: (i) shall be construed to establish, amend, or modify
any benefit plan, program, agreement or arrangement; (ii) shall, subject to compliance with the
other provisions of this Section 6.3, alter or limit Purchaser’s or Sellers’ ability to amend, modify
or terminate any particular benefit plan, program, agreement or arrangement; or (iii) is intended to
confer upon any current or former employee any right to employment or continued employment
for any period of time by reason of this Agreement, or any right to a particular term or condition
of employment.
(e) Seller shall be solely responsible for, and Purchaser shall have no
obligations or Liabilities whatsoever for, or with respect to any payments, vesting or benefit
accrual for any Employee Benefit Plans (exclusive of Acquired Entity Benefit Plans) or any
compensation, wages, or other amounts payable to any current or former employee (other than
Transferred Employees), officer, director, independent contractor or consultant of Seller, including
hourly pay, commission, bonus, salary, accrued vacation or other paid time off, fringe, pension or
profit sharing benefits or severance pay for any period relating to the service with Seller at any
time on or prior to the Closing Date (exclusive of amounts owing by an Acquired Entity) and Seller
shall pay all such amounts that are accrued and earned as of the Closing Date to all such persons
when such amounts are due and payable.
(f) Seller shall remain solely responsible for the satisfaction of all claims for
medical, dental, life insurance, health accident or disability benefits brought by or in respect of
current or former employees, officers, directors, independent contractors or consultants of the
Business or the spouses, dependents or beneficiaries thereof, which claims relate to events
occurring on or prior to the Closing Date, exclusive of any claims in respect of an Acquired Entity
Benefit Plan. Sellers also shall remain solely responsible for all workers’ compensation claims of
any current or former employees, officers, directors, independent contractors or consultants of
Seller which relate to events occurring on or prior to the Closing Date.
(g) Seller will, or will cause its Affiliates to, provide any required notice under
the WARN Act and to otherwise comply with the WARN Act with respect to any “plant closing”
or “mass layoff” or group termination or similar event under the WARN Act affecting Business
Employees or Transferred Employees (including as a result of the consummation of Transactions)
that occurs on and before the Closing. Purchaser will, or will cause its Affiliates to, provide any
required notice under the WARN Act and to otherwise comply with the WARN Act with respect
to any “plant closing” or “mass layoff” or group termination or similar event under the WARN
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Act affecting Business Employees or Transferred Employees (including as a result of the
consummation of Transactions) that occurs after the Closing. For avoidance of doubt, to the extent
any Business Employee or Transferred Employee employment losses caused by Seller or any of
its Affiliates prior to the Closing are considered part of any “plant closing” or “mass layoff” caused
by Purchaser or any of its Affiliates after the Closing, and provided that such employment loses
by Seller or any of its Affiliates did not otherwise give rise to any obligations or Liabilities under
the WARN Act on or before the Closing, Purchaser will, or will cause its Affiliates to, (i) provide
any required notice under the WARN Act and to otherwise comply with the WARN Act as it
relates to the Business Employees or Transferred Employees, [and (ii) indemnify Seller and its
Affiliates for any Liabilities they incur during any such WARN Act notice period and for any other
Liabilities under the WARN Act, in each case with respect to the aforementioned “plant closing”
or “mass layoff” caused by Purchaser or any of its Affiliates after the Closing].
(h) Solely to the extent required by 26 C.F.R. § 54.4980B-9, Purchaser shall be
solely responsible for any and all obligations and Liabilities arising under Section 4980B of the
Tax Code with respect to all “M&A qualified beneficiaries” in respect of the Transactions within
the meaning of 26 C.F.R. § 54.4980B-9.
Section 6.4 Regulatory Approvals.
(a) Sellers will (i) cooperate with Purchaser in exchanging such information
and providing such assistance as Purchaser may reasonably request in connection with any filings
made by the Purchaser Group pursuant to Section 6.4(b), and (ii) (A) supply promptly any
additional information and documentary material that may be requested in connection with the
filings made pursuant to Section 6.4(b) and (B) use reasonable best efforts to take all actions
necessary to obtain all required clearances in connection with such filings.
(b) Purchaser will, and will cause its Affiliates and Advisors to, (i) make or
cause to be made all filings and submissions required to be made by any member of the Purchaser
Group under any applicable Laws for the consummation of the Transactions, if any, (ii) cooperate
with Sellers in exchanging such information and providing such assistance as Sellers may
reasonably request in connection with any filings made by a Seller pursuant to Section 6.4(a), and
(iii) (A) supply promptly any additional information and documentary material that may be
requested in connection with the filings made pursuant to this Section 6.4(b) or Section 6.4(a) and
(B) use reasonable best efforts to take all actions necessary to obtain all required clearances.
Section 6.5 Reasonable Efforts; Cooperation.
(a) Subject to the other terms of this Agreement, including any provisions with
an express different standard regarding actions to be taken hereunder, each Party shall, and shall
cause its Advisors to, use its reasonable best efforts to perform its obligations hereunder and to
take, or cause to be taken, and do, or cause to be done, all things necessary, proper or advisable to
cause the Transactions to be effected as soon as practicable, but in any event on or prior to the
Outside Date, in accordance with the terms hereof and to cooperate with each other Party and its
Advisors in connection with any step required to be taken as a part of its obligations hereunder,
provided; notwithstanding anything to the contrary in this Agreement the “reasonable best efforts”
of (1) Sellers will not require any Seller or any of its Affiliates or Advisors to expend any money
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to remedy any breach of any representation or warranty, to commence any Action, to waive or
surrender any right, to modify any Contract or to waive or forego any right, remedy or condition
hereunder and (2) Purchaser will not require Purchaser or any of its Affiliates to, and Purchaser
shall not be under any obligation to, make proposals, execute or carry out agreements, enter into
consent decrees or submit to orders providing for (A) the sale, divestiture, license or other
disposition or holding separate (through the establishment of a trust or otherwise) of any assets or
categories of assets of Purchaser or any of its Affiliates, (B) the imposition of any limitation or
regulation on the ability of Purchaser or any of its Affiliates to freely conduct their business or
own such assets, or (C) the holding separate of the Acquired Assets or regulation on the ability to
exercise full rights of ownership of the Acquired Assets.
(b) The obligations of Sellers pursuant to this Agreement, including this
Section 6.5, shall be subject to any Orders entered, or approvals or authorizations granted or
required, by or under the Bankruptcy Court or the Bankruptcy Code (including in connection with
the Bankruptcy Cases), Sellers’ debtor-in-possession financing, and Sellers’ obligations as debtors
in possession to comply with any Order of the Bankruptcy Court (including the Bidding
Procedures Order and the Sale Order), and Sellers’ duty to seek and obtain the highest or otherwise
best price for the Acquired Assets as required by the Bankruptcy Code.
Section 6.6 Further Assurances. From time to time, as and when requested by any
Party and at such requesting Party’s expense, any other Party will execute and deliver, or cause to
be executed and delivered, all such documents and instruments and will take, or cause to be taken,
all such further or other actions as such requesting Party may reasonably deem necessary or
desirable to evidence and effectuate the Transactions, which includes delivering the Acquired
Assets from such Non-Debtors pursuant to Section 1.6(d) and the other terms and conditions of
this Agreement.
Section 6.7 Insurance Matters. Purchaser acknowledges that, upon Closing, all
nontransferable insurance coverage provided in relation to any Seller and the Acquired Assets that
is maintained by such Seller or its Affiliates (whether such policies are maintained with third party
insurers or with any Seller or its Affiliates) shall cease to provide any coverage to Purchaser and
the Acquired Assets and no further coverage shall be available to Purchaser or the Acquired Assets
under any such policies. From and after the Closing, Purchaser shall have the right to make claims
and any right to any proceeds with respect to any matter solely to the extent related to the Acquired
Assets or Assumed Liabilities inuring to the benefit of Sellers for periods prior to the Closing, and
Sellers shall use reasonable best efforts to seek recovery or allow Purchaser to seek recovery under
the Excluded Insurance Policies, and Seller shall cooperate with Purchaser’s reasonable requests
if it seeks recovery, with respect to such matters and shall remit (or, at Purchaser’s request, direct
any such insurer to pay directly to Purchaser) any insurance proceeds actually obtained therefrom
(net of Sellers’ reasonable and documented out- of-pocket costs and expenses of seeking recovery,
to the extent not otherwise paid or reimbursed by Purchaser) to Purchaser or its designee.
Section 6.8 Receipt of Misdirected Assets; Liabilities.
(a) From and after the Closing, if any Seller or any of its respective Affiliates
receives any right, property or asset that is an Acquired Asset, the applicable Seller shall promptly
transfer or cause such of its Affiliates to transfer such right, property or asset (and shall promptly
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endorse and deliver any such asset that is received in the form of cash, checks or other documents)
to Purchaser, and such asset will be deemed the property of Purchaser held in trust by such Seller
for Purchaser until so transferred. From and after the Closing, if Purchaser or any of its Affiliates
receives any right, property or asset that is an Excluded Asset, Purchaser shall promptly transfer
or cause such of its Affiliates to transfer such asset (and shall promptly endorse and deliver any
such right, property or asset that is received in the form of cash, checks, or other documents) to
the applicable Seller, and such asset will be deemed the property of such Seller held in trust by
Purchaser for such Seller until so transferred.
(b) From and after the Closing, if any Seller or any of such Seller’s Affiliates
is subject to a Liability that should belong to Purchaser or its Affiliates pursuant to the terms of
this Agreement, such Seller shall promptly transfer or cause such of its Affiliates to transfer such
Liability to Purchaser, and Purchaser shall assume and accept such Liability. From and after the
Closing, if Purchaser or any of its Affiliates is subject to a Liability that should belong to a Seller
or its Affiliates pursuant to the terms of this Agreement, Purchaser shall promptly transfer or cause
such of its Affiliates to transfer such Liability to the applicable Seller or its Affiliates, and such
Seller or its Affiliates shall assume and accept such Liability.
Section 6.9 Acknowledgment by Purchaser.
(a) Purchaser acknowledges and agrees, on its own behalf and on behalf of the
Purchaser Group, that it has conducted to its full satisfaction an independent investigation and
verification of the Business (including its financial condition, results of operations, assets,
Liabilities, properties, Contracts, environmental, health or safety conditions and compliance,
employee matters, regulatory compliance, business risks and prospects), and the Sellers and
Acquired Assets and the Assumed Liabilities, and, in making its determination to proceed with the
Transactions, Purchaser and the Purchaser Group have relied, are relying, and will rely, solely on
the Express Representations and the results of the Purchaser Group’s own independent
investigation and verification and have not relied on, are not relying on, and will not rely on, any
information, statements, disclosures, documents, projections, forecasts or other material made
available to Purchaser or any of its Affiliates or Advisors in the Dataroom, the Information
Presentation, or the Projections or any other information, statements, disclosures or materials, in
each case, whether written or oral, made or provided by or on behalf of any Seller or any other
Seller Party, or any failure of any of the foregoing to disclose or contain any information, except
for the Express Representations (it being understood that Purchaser and the Purchaser Group have
relied only on the Express Representations). Purchaser acknowledges and agrees, on its own behalf
and on behalf of the Purchaser Group, that (i) the Express Representations are the sole and
exclusive representations, warranties and statements of any kind made to Purchaser or any member
of the Purchaser Group and on which Purchaser or any member of the Purchaser Group may rely
in connection with the Transactions and (ii) all other representations, warranties and statements of
any kind or nature expressed or implied, whether in written, electronic or oral form, including
(A) the completeness or accuracy of, or any omission to state or to disclose, any information (other
than solely to the extent expressly set forth in the Express Representations) including in the
Dataroom, Information Presentation, Projections, meetings, calls or correspondence with
management of any Seller, any of the Seller Parties or any other Person on behalf of any Seller or
any of the Seller Parties or any of their respective Affiliates or Advisors and (B) any other
statement relating to the historical, current or future business, financial condition, results of
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operations, assets, Liabilities, properties, Contracts, environmental, health or safety conditions and
compliance, employee matters, regulatory compliance, business risks and prospects of the
Business, or the quality, quantity or condition of any of the Acquired Assets, are, in each case,
specifically disclaimed by each Seller, on its behalf and on behalf of the Seller Parties. Purchaser,
on its own behalf and on behalf of the Purchaser Group: (1) disclaims reliance on the items in
clause (ii) in the immediately preceding sentence; and (2) acknowledges and agrees that it has
relied on, is relying on and will rely on only the items in clause (i) in the immediately preceding
sentence. Without limiting the generality of the foregoing, Purchaser acknowledges and agrees, on
its own behalf and on behalf of the Purchaser Group, that neither Sellers, nor any other Person
(including the Seller Parties), has made, is making or is authorized to make, and Purchaser, on its
own behalf and on behalf of the Purchaser Group, hereby waives, all rights and claims it or they
may have against any Seller Party with respect to the accuracy of, any omission or concealment
of, or any misstatement with respect to, (x) any potentially material information regarding any
Seller, any Acquired Entity, or any of their respective assets (including the Acquired Assets),
Liabilities (including the Assumed Liabilities) or operations and (y) any warranty or representation
(whether in written, electronic or oral form), express or implied, as to the quality, merchantability,
fitness for a particular purpose, or condition of any Seller’s or any Acquired Entity’s business
(including the Business), operations, assets, Liabilities, Contracts, environmental, health or safety
conditions and compliance, employee matters, regulatory compliance, business risks and prospects
or any portion thereof, except, in each case, solely to the extent expressly set forth in the Express
Representations.
(b) Without limiting the generality of the foregoing, in connection with the
investigation by the Purchaser Group of the Business, Purchaser and the members of the Purchaser
Group, and the Advisors of each of the foregoing, have received or may receive, from or on behalf
of any Seller or other Seller Parties, certain projections, forward-looking statements and other
forecasts (whether in written, electronic, or oral form, and including in the Information
Presentation, Dataroom, management meetings, etc.) (collectively, “Projections”). Purchaser
acknowledges and agrees, on its own behalf and on behalf of the Purchaser Group, that (i) such
Projections are being provided solely for the convenience of Purchaser to facilitate its own
independent investigation of Sellers, (ii) there are uncertainties inherent in attempting to make
such Projections, (iii) Purchaser is familiar with such uncertainties, and (iv) Purchaser is taking
full responsibility for making their own evaluation of the adequacy and accuracy of all Projections
(including the reasonableness of the assumptions underlying such Projections).
(c) Purchaser acknowledges and agrees, on its own behalf and on behalf of the
Purchaser Group, that it will not assert, institute, or maintain, and will cause each member of the
Purchaser Group not to assert, institute or maintain, any Action that makes any claim contrary to
the agreements and covenants set forth in this Section 6.9, including any such Action with respect
to the distribution to Purchaser or any member of the Purchaser Group, or Purchaser’s or any
member of the Purchaser Group’s use, of the information, statements, disclosures or materials in
the Information Presentation, the Dataroom or Projections or any other information, statements,
disclosures, or materials, in each case whether written or oral, provided by them or any other Seller
Party or any failure of any of the foregoing to disclose any information.
(d) Purchaser acknowledges and agrees, on its own behalf and on behalf of the
Purchaser Group, that the covenants and agreements contained in this Section 6.9 (i) require
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performance after the Closing to the maximum extent permitted by applicable Law and (ii) are an
integral part of the Transactions and that, without these agreements set forth in this Section 6.9,
Seller would not enter into this Agreement.
(e) Nothing in this Section 6.9 will limit Purchaser’s remedies for Fraud.
Section 6.10 Guaranty.
(a) In the event of any assignment pursuant to Section 10.4(b) hereof,
Guarantor hereby irrevocably, absolutely and unconditionally guarantees to Sellers (i) the due and
punctual performance, when and as due, of all obligations, covenants and agreements of Purchaser
arising under or pursuant to this Agreement; (ii) the accuracy of Purchaser’s representations and
warranties set forth herein; and (iii) the punctual payment of all sums, if any, now or hereafter
owed by Purchaser under and in accordance with the terms of this Agreement, including the
payment obligations of Purchaser pursuant to Section 2.1 (the matters set forth in clauses (i), (ii),
and (iii), collectively, “Guaranteed Obligations”).
(b) If Purchaser fails to perform any of the Guaranteed Obligations, then
Guarantor shall itself be jointly and severally liable for the Guaranteed Obligations and shall
perform or take whatever steps as may be necessary to procure performance of the same.
(c) Notwithstanding any other provision of this Section 6.10, nothing herein
shall be construed as imposing greater obligations or Liabilities on Guarantor than for which
Purchaser itself would be liable under this Agreement or obliging Guarantor to indemnify and hold
harmless Sellers against any losses, costs, or expenses for which Purchaser itself would not be
liable under this Agreement, except as set forth in this Section 6.10, including Sections 6.10(f)
and 6.10(h).
(d) The obligations of Sellers under this Agreement shall conclusively be
deemed to have been created, contracted, or incurred in reliance upon this Section 6.10 and all
dealings between Sellers and Purchaser shall likewise be conclusively presumed to have been
consummated in reliance upon this Section 6.10.
(e) Guarantor’s obligations hereunder shall not be affected by any facts or
circumstances that might constitute a legal or equitable bar, discharge or defense to any Guaranteed
Obligations available to Guarantor but not available to Purchaser, and Guarantor hereby expressly
waives and renounces any and all such bars, discharges and defenses.
(f) The guarantee by Guarantor contained herein shall be a continuing
guarantee, shall remain in full force and effect and shall continue to be enforceable by Sellers until
the performance by Purchaser of all of the Guaranteed Obligations (notwithstanding any change,
restructuring, bankruptcy, insolvency or termination of the corporate structure or existence of any
Seller or any of its Subsidiaries) and that upon completion of all of the Guaranteed Obligations,
this guarantee shall terminate automatically and Guarantor shall stand discharged of all of its
obligations under this guarantee. Guarantor shall indemnify Sellers for any costs and expenses
incurred by Sellers in enforcing this Section 6.10(f), including the fees and expenses of counsel
and other Advisors of Sellers in the investigation and prosecution of any Action with respect
hereto. Guarantor’s obligations under this Section 6.10(f) shall not be terminated, modified,
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affected or impaired by reason of any relief or discharge of Purchaser from any of Purchaser’s
respective obligations in bankruptcy or similar proceedings, or by liquidation or dissolution.
(g) The liability of Guarantor under this Section 6.10 shall be unlimited and
unconditional, and this Section 6.10 shall be a continuing guaranty.
(h) Guarantor hereby makes the representations and warranties set forth in
Article IV as to itself, and such representations and warranties shall apply mutatis mutandis as if
Guarantor were substituted for Purchaser therein.
Section 6.11 Releases.
(a) As of the Closing, each Seller, on behalf of itself and its Affiliates,
representatives, heirs, successors, and assigns (as applicable), (a) irrevocably and unconditionally
waives, releases, and forever discharges the Acquired Entities and their current, former and future
Advisors, stockholders, members, directors, managers, trustees, principals, parents, Subsidiaries,
joint ventures, predecessors, successors, assigns, beneficiaries, heirs or executors (collectively, the
“Acquired Entity Released Parties”) from any and all rights, commitments, actions, debts, claims,
counterclaims, suits, causes of action, damages, demands, losses, obligations, costs, expenses,
compensation and other Liabilities of every kind and nature whatsoever, whether known or
unknown, matured or contingent and whether arising in law, in equity or otherwise, in each case
based upon facts, circumstances or occurrences existing at or prior to Closing (collectively, the
“Released Claims”), (b) irrevocably covenants to refrain from, directly or indirectly, asserting any
claims or commencing, instituting or causing to be commenced, any Action of any kind against
any Acquired Entity Released Party with respect to the Released Claims, and (c) represents to the
other Parties that such Seller has not assigned or transferred, nor purported to assign or transfer, to
any Person all or any part of, or any interest in, any Released Claim (and notwithstanding anything
to the contrary in this Agreement, no such assignment or transfer shall be permitted, and any
purported assignment or transfer shall be legally ineffective). Each Seller also hereby waives the
benefits of, and any right that such Person may have under, any statute or common law principle
of similar effect in any jurisdiction with respect to any Released Claim. Notwithstanding the
generality of the foregoing, nothing herein constitutes a waiver or release by any Person of, and
Released Claims shall not be deemed to include (i) any claim or right arising under this Agreement
or any Transaction Agreement, including any breach of this Agreement, (ii) any claim or right
such Person may have in the Ordinary Course for compensation, vacation pay, and benefits arising
under such Person’s employment arrangements, and (iii) any claim or right arising as a result of
Fraud.
(b) As of the Closing, Purchaser, on behalf of itself and its Affiliates (including,
after the Closing, the Acquired Entities), representatives, heirs, successors, and assigns (as
applicable), (a) irrevocably and unconditionally waives, releases, and forever discharges Sellers
and their current, former and future Advisors, stockholders, members, directors, managers,
trustees, principals, parents, Subsidiaries, joint ventures, predecessors, successors, assigns,
beneficiaries, heirs or executors (collectively, the “Seller Released Parties” and together with the
Acquired Entity Released Parties, the “Released Parties”) from any and all Released Claims, (b)
irrevocably covenants to refrain from, directly or indirectly, asserting any claims or commencing,
instituting or causing to be commenced, any Action of any kind against any Seller Released Party
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with respect to the Released Claims, and (c) represents to the other Parties that Purchaser has not
assigned or transferred, nor purported to assign or transfer, to any Person all or any part of, or any
interest in, any Released Claim (and notwithstanding anything to the contrary in this Agreement,
no such assignment or transfer shall be permitted, and any purported assignment or transfer shall
be legally ineffective). Purchaser also hereby waives the benefits of, and any right that such Person
may have under, any statute or common law principle of similar effect in any jurisdiction with
respect to any Released Claim. Notwithstanding the generality of the foregoing, nothing herein
constitutes a waiver or release by any Person of, and Released Claims shall not be deemed to
include (i) any claim or right arising under this Agreement or any Transaction Agreement,
including any breach of this Agreement, (ii) any claim or right such Person may have in the
Ordinary Course for compensation, vacation pay, and benefits arising under such Person’s
employment arrangements and (iii) any claim or right arising as a result of Fraud.
Section 6.12 Vyaire Guarantees. Purchaser acknowledges that in the course of conduct
of the Business, Vyaire and its Affiliates may have entered into various arrangements (a) in which
guarantees, letters of credit, sureties, bonds or similar arrangements were issued by Vyaire or its
Affiliates and (b) in which Vyaire or its Affiliates are the primary obligors on other Contracts, in
any such case to support or facilitate the Business. The arrangements entered into by Vyaire and
its Affiliates referred to in the foregoing clauses (a) and (b), solely to the extent relating to any
Acquired Assets or Assumed Liabilities consisting only of those set forth in Section 6.12, are
referred to as the “Seller Credit Support Obligations”. It is understood that the Seller Credit
Support Obligations are not intended to continue after the Closing. Purchaser agrees that it shall
use its reasonable best efforts to obtain replacements for the Seller Credit Support Obligations
(which shall include the full and unconditional release of Vyaire and its Affiliates) that will be in
effect at the Closing or, in the case of Seller Credit Support Obligations described in the foregoing
clause (b), will use its commercially reasonable efforts to arrange for itself or one of its
Subsidiaries to be substituted as the primary obligor thereon as of the Closing through an
assumption, accession, acknowledgement or similar agreement (which shall include the full and
unconditional release of Vyaire and its Affiliates) with the beneficiary of the applicable Seller
Credit Support Obligation. Whether or not Purchaser is able to satisfy the terms of the immediately
preceding sentence, from and after the Closing, Purchaser shall indemnify the Sellers and their
respective Affiliates and each of their respective officers, directors, employees, agents and
representatives from and against any and all Liabilities incurred by any of them relating to the
Seller Credit Support Obligations. Purchaser agrees that, with respect to any Seller Credit Support
Obligation, its reasonable best efforts pursuant to this Section 6.12 shall include, if requested, the
execution and delivery by Purchaser, or by an Affiliate of Purchaser acceptable to the beneficiary
of such Seller Credit Support Obligation, of a replacement guarantee that is substantially in the
form of such Seller Credit Support Obligation. All costs and expenses incurred in connection with
providing the release or substitution of the Seller Credit Support Obligations shall be borne by
Purchaser.
Section 6.13 Lien Releases. Following the Closing, the Seller agrees to use
commercially reasonable efforts to file, or cause to be filed, or duly authorize (or the Sale Order
shall duly authorize) Purchaser to file, all applicable UCC lien releases with the USPTO or
equivalent foreign governing body relating to the Acquired Assets.
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Section 6.14 401(k) Plan Termination. As permitted by the Bankruptcy Court, the
Sellers shall take all steps necessary to terminate, or cause to terminate, all 401(k) plans
administered by Sellers or the Acquired Entities at the termination of the Transition Services
Agreement.
Section 6.15 Acquired Intellectual Property Title. Sellers will, from time to time
following the Closing, upon reasonable request and at Purchaser’s cost and expense and without
being required to incur any Liability, execute and deliver any and all papers, make all rightful
oaths, and do all lawful acts that may be necessary or desirable to record and perfect, in the
applicable official government records, the full chain of title in the Acquired Intellectual Property
into, and in the name of, the owner listed in Schedule 3.11(a), in each case, as prepared by or on
behalf of Purchaser in accordance with applicable Law.
Section 6.16 Domain Names. Sellers shall cooperate with Purchase to cause each
internet domain name related to any Acquired Asset, including any internet domain name that
incorporates any Product Name, to be redirected to an internet domain name owned by Purchaser.
Section 6.17 Acquired Cash Amount. Sellers shall not transfer any Acquired Cash
Amount after the Acquired Cash Amount has been determined as of 11:59 PM Eastern time on the
date immediately preceding the Closing Date.
Section 6.18 Mixed-Use Contracts. Sellers shall not assign or transfer any Mixed-Use
Contracts to any third party or pursuant to any other transaction.
Section 6.19 Purchase Price Allocation. The Parties will use commercially reasonable
efforts to allocate the Purchase Price between Debtors, on one hand, and Non-Debtors, on the other
hand, prior to Closing.
Section 6.20 Restructuring Transactions. Prior to the Closing Date, Sellers shall, and
shall cause their relevant respective Subsidiaries to, effect the restructuring transactions set forth
on Schedule 6.20 (which schedule may be updated from time to time by Sellers and shall be subject
to the consent of the Purchaser (not unreasonably withheld, conditioned, or delayed)) (such
transactions, the “Restructuring Transactions”). In addition, prior to the Closing, Seller shall cause
all intercompany Liabilities between any Acquired Entity, on the one hand, and any Seller or Non-
Debtor, on the other hand (each, an “Intercompany Liability”), to be settled or otherwise
terminated such that there are no Intercompany Liabilities remaining as of the Closing. Any such
termination shall be effected in a manner that does not reasonably result in an Assumed Liability
and does not reasonably result in any net increase in Liabilities of any Acquired Entity (and, for
the avoidance of doubt, the Parties agree that the Restructuring Transactions described on Schedule
6.20 as of the date hereof are not expected to result in any Assumed Liability or net increase in
Liabilities for the Acquired Entities).
Section 6.21 Seller Names. Purchaser, for itself and its Affiliates (including, after the
Closing, each Acquired Entity), acknowledges and agrees that, as between the Parties, Sellers (or
their Affiliates) are the exclusive owners of the Seller Names and that Purchaser is not, directly or
indirectly, purchasing, acquiring or otherwise obtaining any right, title or interest in or to the Seller
Names, and except as set forth herein (a) neither Purchaser nor any of its Affiliates (including,
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after the Closing, each Acquired Entity) shall have any rights in or to the Seller Names, (b) within
90 days after the Closing Date (except as set forth below), Purchaser shall (and shall cause its
Affiliates, including each Acquired Entity, to) cease use of (and thereafter not use) the Seller
Names (including in the respective corporate or other legal names of each Acquired Entity), and
(c) Purchaser shall not, and Purchaser shall cause its Affiliates (and after the Closing, each
Acquired Entity) not to (1) use, register or seek to use or register in any jurisdiction any of the
Seller Names or any other names, trademarks, service marks, trade names, logos, monograms,
trade dress, social media names and handles, domain names or other source identifiers confusingly
similar thereto or (2) contest the use, ownership, validity or enforceability of any rights of Sellers
or any of their Affiliates in or to any of the Seller Names. After the Closing, Purchaser shall not
(and shall cause its Affiliates, including, after the Closing, each Acquired Entity, not to) represent
that it has authority to bind Sellers or any of their Affiliates. Sellers hereby grant Purchaser a fully
paid-up, royalty-free, non-exclusive license to use the Seller Names (i) for 90 days after the
Closing Date, solely in connection with the Business and solely to the extent consistent with past
practice in the twelve (12) months prior to the Closing, (ii) until such time as all applicable Permits
(including the title of legal manufacturer) have been transferred to Purchaser, solely related to the
use of Seller Names in connection with regulatory matters or pursuant to such Permits (iii)
following the Closing Date to identify any products that are part of the Acquired Business as being
formerly affiliated with Seller Names (or words of similar import) (iv) solely to the extent such
Seller Names are affixed to Inventory included in the Acquired Assets, and in compliance with
applicable Laws, on such Inventory as it is sold or otherwise commercialized by Purchaser, until
such Inventory is depleted or destroyed or (v) in connection with the manufacturing, distribution
and sale of any products, including software, that use or incorporate any Seller Names; provided
that Purchaser shall indemnify the Sellers and their respective Affiliates and each of their
respective officers, directors, employees, agents and representatives (and any of their successors
or assigns) from and against any and all Liabilities incurred by any of them relating to or arising
from the use of Seller Names in connection with Purchaser or its Affiliates’ sale or
commercialization of such Inventory or from Purchaser or its Affiliates’ manufacturing,
distribution and sale of any such products, including software. All goodwill associated with or
arising from Purchaser’s or any of its Affiliate’s use of any Seller Names shall inure to the benefit
of Sellers. Notwithstanding the foregoing, nothing in this Agreement prohibits Purchaser or its
Affiliates from using the Seller Names at all times after the Closing Date (A) as required by
applicable Law, (B) as may be required to perform any contractual obligations Purchaser and its
Affiliates owe to Sellers or their Affiliates; (C) on internal-only archival business and legal
documents and items; (D) in a neutral, non-trademark manner to describe the history thereof or as
otherwise permitted by “fair use” principles, and (E) as may be required in furtherance of
transitioning any regulatory permits, approvals, or compliance matters or updating any approved
labels for finished products with respect to the Business or the Acquired Assets that include Seller
Names.
Section 6.22 Schedule 1.6. Purchaser and Sellers agree to comply with or perform all
obligations and actions set forth in Item 15 of Schedule 1.6, which the Parties agree are legally
binding obligations and incorporated herein.
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ARTICLE VII
CONDITIONS TO CLOSING
Section 7.1 Conditions Precedent to the Obligations of Purchaser and Sellers. The
respective obligations of each Party to consummate the Closing are subject to the satisfaction (or
to the extent permitted by Law, written waiver by Sellers and Purchaser) at the Closing, of each of
the following conditions:
(a) no court of competent jurisdiction shall have issued, enacted, entered,
promulgated or enforced any Order (including any temporary restraining Order or preliminary or
permanent injunction) restraining, enjoining or otherwise prohibiting the Closing that is still in
effect; and
(b) the Bankruptcy Court shall have entered the Sale Order and this Agreement
shall become effective in accordance with its terms.
Section 7.2 Conditions Precedent to the Obligations of Purchaser. The obligations
of Purchaser to consummate the Closing are subject to the satisfaction (or to the extent permitted
by Law, written waiver by Purchaser in its sole discretion), at the Closing, of each of the following
conditions:
(a) (i) the representations and warranties made by Sellers in Article III (in each
case, other than the Fundamental Representations) shall be true and correct in all respects as of the
Closing Date as though made on and as of the Closing Date, except (A) that representations and
warranties that are made as of a specified date need be true and correct only as of such date and
(B) to the extent the failure of such representations and warranties to be true and correct as of such
dates has not had a Material Adverse Effect and (ii) the representations and warranties set forth in
Section 3.1 (excluding the last sentence of Section 3.1), Section 3.2 and Section 3.19 (collectively,
the “Fundamental Representations”) shall be true and correct in all but de minimis respects as of
the Closing Date as though made on and as of the Closing Date, except that such Fundamental
Representations that are made as of a specified date need be true and correct in all but de minimis
respects only as of such date;
(b) Sellers shall have performed and complied in all material respects with the
covenants required to be performed or complied with by Sellers under this Agreement on or prior
to Closing;
(c) From and after the date of this Agreement, no Material Adverse Effect shall
have occurred;
(d) Purchaser shall have received a Medical Device Manufacturing License
from the California Department of Public Health (the “California License”); and
(e) Sellers shall have delivered, or caused to be delivered, to Purchaser all of
the items set forth in Section 2.4.
Section 7.3 Conditions Precedent to the Obligations of Sellers. The obligations of
Sellers to consummate the Closing are subject to the satisfaction (or to the extent permitted by
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Law, written waiver by Sellers in their sole discretion), at the Closing, of each of the following
conditions:
(a) the representations and warranties made by Purchaser in Article IV (A) that
are not qualified by materiality qualifiers shall be true and correct in all material respects and
(B) that are qualified by materiality qualifiers shall be true and correct in all respects, in each case,
as of the Closing Date as though made on and as of the Closing Date, except that (i) representations
and warranties that are made as of a specified date need be true and correct in all material respects
only as of such date and (ii) to the extent the failure of such representations and warranties to be
true and correct, subject to the above standard, as of such dates has not had and would not
reasonably be expected to have a material adverse effect on Purchaser’s performance of its
obligations under the Transaction Agreement the consummation of (or Purchaser’s ability to
consummate) the Transactions;
(b) Purchaser shall have performed and complied in all material respects with
the covenants required to be performed or complied with by it under this Agreement on or prior to
the Closing Date; and
(c) Purchaser shall have delivered, or caused to be delivered, to Sellers all of
the items set forth in Section 2.5.
Section 7.4 Waiver of Conditions. Upon the occurrence of the Closing, any condition
set forth in this Article VII that was not satisfied as of the Closing will be deemed to have been
waived for all purposes by the Party having the benefit of such condition as of and after the
Closing. None of Purchaser or Sellers may rely on the failure of any condition set forth in this
Article VII, as applicable, to be satisfied if such failure was caused by such Party’s failure to
perform any of its obligations under this Agreement, including its obligation to use its reasonable
best efforts to consummate the Transactions as required under this Agreement.
ARTICLE VIII
TERMINATION
Section 8.1 Termination of Agreement. This Agreement may be terminated at any
time prior to the Closing only in accordance with this Section 8.1:
(a) by the mutual written consent of Sellers and Purchaser;
(b) by written notice of either Purchaser or Sellers, upon the issuance of an
Order by a court of competent jurisdiction restraining, enjoining or otherwise prohibiting the
consummation of the Closing or declaring unlawful the Transactions, and such Order having
become final, binding and non-appealable; provided that no Party may terminate this Agreement
under this Section 8.1(b) if the issuance of such Order was primarily caused by such Party’s failure
to perform any of its obligations under this Agreement;
(c) by written notice of either Purchaser or Sellers, if the Closing shall not have
occurred on or before October 18, 2024 (the “Outside Date”) (or such later date as provided in
Section 5.1(f)); provided that a Party shall not be permitted to terminate this Agreement pursuant
to this Section 8.1(c) if the failure of the Closing to have occurred by the Outside Date was caused
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by such Party’s failure to perform any of its obligations under this Agreement; provided further
that Sellers may extend the Outside Date up to an additional 60 days to the extent necessary to
satisfy the conditions set forth in Section 7.1 or Section 7.2(d) so long as the other conditions in
Article VII (other than conditions that by their nature are to be satisfied at the Closing) have been
satisfied or waived;
(d) by written notice from Sellers to Purchaser, upon a breach of any covenant
or agreement on the part of Purchaser, or if any representation or warranty of Purchaser will have
become untrue, in each case, such that the conditions set forth in Section 7.3(a) or 7.3(b) would
not be satisfied, including a breach of Purchaser’s obligation to consummate the Closing; provided
that (i) if such breach is curable by Purchaser, then Sellers may not terminate this Agreement under
this Section 8.1(d) unless such breach has not been cured by the date which that the earlier of
(A) two Business Days prior to the Outside Date and (B) 30 days after Sellers notify Purchaser of
such breach and (ii) the right to terminate this Agreement pursuant to this Section 8.1(d) will not
be available to Sellers at any time that Sellers are in material breach of, any covenant,
representation or warranty hereunder;
(e) by written notice from Purchaser to Sellers, upon a breach of any covenant
or agreement on the part of Sellers, or if any representation or warranty of the Sellers will have
become untrue, in each case, such that the conditions set forth in Section 7.3(a) or 7.3(b) would
not be satisfied; provided that (i) if such breach is curable by Sellers then Purchaser may not
terminate this Agreement under this Section 8.1(e) unless such breach has not been cured by the
date which is the earlier of (A) two Business Days prior to the Outside Date and (B) 30 days after
Purchaser notifies Sellers of such breach and (ii) the right to terminate this Agreement pursuant to
this Section 8.1(e) will not be available to Purchaser at any time that Purchaser is in material breach
of, any covenant, representation or warranty hereunder;
(f) by written notice from Sellers to Purchaser, if all of the conditions set forth
in Sections 7.1 and 7.2 have been satisfied (other than conditions that by their nature are to be
satisfied at the Closing, but subject to the satisfaction or waiver of such conditions at the Closing)
or waived and Purchaser fails to complete the Closing at the time required by Section 2.3;
(g) by written notice from Sellers to Purchaser, if any Seller or the board of
directors (or similar governing body) of any Seller determines that proceeding with the
Transactions or failing to terminate Agreement would be inconsistent with its or such Person’s or
body’s fiduciary duties;
(h) by written notice of either Purchaser or (prior to entry of the Sale Order)
Sellers, if (i) any Seller enters into one or more Alternative Transactions with one or more Persons
other than Purchaser or the Successful Bidder or the Backup Bidder at the Auction (ii) the
Bankruptcy Court approves an Alternative Transaction other than with the Successful Bidder or
the Backup Bidder, or (iii) Sellers consummate an Alternative Transaction with the Successful
Bidder; or
(i) by written notice from Purchaser to Sellers, if Purchaser is not the
Successful Bidder or the Backup Bidder at the Auction.
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Section 8.2 Effect of Termination.
(a) In the event of termination of this Agreement pursuant to Section 8.1, this
Agreement shall forthwith become null and void and no Party or any of its partners, officers,
directors, managers or equityholders will have any Liability under this Agreement; provided that
Section 1.3(h), Section 6.2(b), this Section 8.2, the last sentence of Section 6.3(a) and Article X
shall survive any such termination; provided further that no termination will relieve Purchaser or
Seller from any Liability for damages, losses, costs or expenses (which the Parties acknowledge
and agree shall not be limited to reimbursement of expenses or out-of-pocket costs, and would
include the benefits of the Transactions lost by the applicable Party (taking into consideration all
relevant matters, including other combination opportunities and the time value of money), which
shall be deemed in such event to be damages of Sellers) resulting from any Willful Breach of this
Agreement prior to the date of such termination (which, for the avoidance of doubt, will be deemed
to include any failure by Purchaser or Seller to consummate the Closing if and when it is obligated
to do so hereunder). Subject to Section 10.14, nothing in this Section 8.2 will be deemed to impair
the right of any Party to be entitled to specific performance or other equitable remedies to enforce
specifically the terms and provisions of this Agreement.
(b) Subject in all cases to Section 10.12, prior to the Closing, in the event of
any breach by Seller of this Agreement, the sole and exclusive remedy of Purchaser shall be to
terminate this Agreement in accordance with Section 8.1.
ARTICLE IX
TAXES
Section 9.1 Transfer Taxes. Purchaser shall bear and timely pay any sales, use,
purchase, transfer (including real estate transfer Taxes), franchise, deed, fixed asset, stamp,
documentary stamp, use or other Taxes and recording charges payable by reason of the sale of the
Acquired Assets (including, for the avoidance of doubt, the Acquired Entities) or the assumption
of the Assumed Liabilities under this Agreement or the Transactions (the “Transfer Taxes”), and
the Party required by applicable Law shall timely file all Tax Returns related to any Transfer Taxes.
Purchaser and the Sellers will cooperate to minimize Transfer Taxes imposed as a result of the
Transactions, including through the submission and filing of available exemption certificates.
Section 9.2 Allocation of Purchase Price. For U.S. federal and applicable state and
local income Tax purposes, Purchaser, Sellers, and their respective Affiliates shall allocate the
Purchase Price (and any Assumed Liabilities or other amounts treated as part of the purchase price
for U.S. federal income Tax purposes) among the Acquired Assets in accordance with the
methodology that shall be mutually agreed by the Parties prior to the Closing (the “Allocation
Methodology”). As soon as commercially practicable, but no later than 90 days following the
determination of the final Purchase Price, Purchaser shall provide a proposed allocation to Sellers
setting forth the allocation of the Purchase Price (and other amounts treated as part of the purchase
price for U.S. federal income Tax purposes) among the Acquired Assets in accordance with the
Allocation Methodology (the “Allocation”) for Sellers’ review, comment and consent (such
consent not to be unreasonably withheld, conditioned or delayed). If Sellers deliver a written
objection within 30 days after receipt of the draft Allocation proposed by Purchaser, then Purchaser
and Sellers shall negotiate in good faith to resolve any such objection, and, if Sellers and Purchaser
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cannot resolve such dispute within 30 days of Purchaser’s receipt of Sellers’ objection, then a
nationally recognized accounting firm mutually acceptable to Purchaser and Sellers shall resolve
such dispute, with the costs of such resolution to be allocated equally between Purchaser and
Sellers, and the resolution of such dispute shall be final and binding on the Parties. The Parties and
their respective Affiliates shall file all Tax Returns in accordance with such Allocation (as finally
determined under this Section 9.2) and not take any Tax-related action inconsistent with the
Allocation, in each case, unless otherwise required by a “determination” within the meaning of
Section 1313(a) of the Tax Code.
Section 9.3 Cooperation. Purchaser and Sellers shall reasonably cooperate, as and to
the extent reasonably requested by the other Party, in connection with the filing of Tax Returns
and any Action, audit, litigation, or other proceeding with respect to Taxes; provided that in
providing such information, assistance and access, each Party shall be entitled to redact
information that is not Related to the Business and the Sellers shall not be obligated to provide or
disclose any Excluded Tax Returns. In the event of any audit, assessment, examination, claim or
other controversy or proceeding relating in whole or in part to any Pre-Closing Tax Period of an
Acquired Entity, the Acquired Assets, or the Business (a “Tax Proceeding”), Purchaser shall
inform the Sellers of such Tax Proceeding as soon as possible but in any event within seven (7)
days after the receipt by Purchaser of notice thereof; provided that no delay or failure on the part
of Purchaser in delivering any such notice shall result in any liability for Purchaser except to the
extent that the a Seller is materially prejudiced by such delay or failure. The Purchaser shall control
such Tax Proceeding; provided that, to the extent any such Tax Proceeding would impose a
Liability on any Seller Parties (excluding, for the avoidance of doubt, the Acquired Entities), the
Purchaser shall (i) keep Sellers reasonably informed with respect to such Tax Proceeding, (ii)
provide Sellers with a reasonable opportunity to participate in such Tax Proceeding, including to
review in advance, reasonably comment upon, and consent to any submissions made in the course
of such Tax Proceeding (such consent not to be unreasonably withheld, conditioned or delayed);
provided that nothing herein will require Purchaser to provide access to, or to disclose any
information to, any Seller if such access or disclosure would waive any legal privilege, and (iii)
not settle such Tax Proceeding without the Sellers’ prior written consent (such consent not to be
unreasonably withheld, conditioned or delayed).
Section 9.4 Preparation of Tax Returns and Payment of Taxes.
(a) Purchaser shall prepare and timely file all Tax Returns with respect to the
Acquired Assets (other than any income Tax Returns of Sellers) or any Acquired Entity that are
due after the Closing. With respect to any such Tax Returns that include any Pre-Closing Tax
Periods to the extent any such Tax Returns would impose a Liability on any Seller Parties
(excluding, for the avoidance of doubt, the Acquired Entities), Purchaser shall, unless otherwise
required by applicable Law, prepare such Tax Returns consistent with past practices, jurisdictions
and methodologies, and shall provide Sellers or their successors in rights, as applicable, with a
draft of such Tax Returns for review and consent (such consent not to be unreasonably withheld,
conditioned or delayed) at least thirty (30) days prior to the filing of any such Tax Return (or, if
such timeframe is not reasonably practicable given the circumstances associated with such Tax
Return, as promptly as is reasonably practicable prior to the filing of any such Tax Return).
Purchaser shall consider in good faith any changes reasonably requested by Sellers with respect to
such Tax Returns. To the extent there is any dispute between the Parties over such Tax Returns
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that cannot be resolved prior to when such Tax Returns are due, such dispute shall be submitted to
an independent national accounting firm or law firm mutually acceptable to Purchaser and Sellers
for resolution, with the costs of such resolution to be evenly split by Purchaser, on the one hand,
and Sellers, on the other hand. The determination of such independent national accounting firm or
law firm shall be binding on all Parties and any Tax Return shall be filed consistently with such
resolution. Purchaser shall be responsible for paying any Taxes reflected on any Tax Return that
Purchaser is obligated to prepare and file under this Section 9.4.
(b) Solely with respect to the Acquired Entities or the Business, Purchaser shall
not file any Tax Return except in accordance with the procedures set forth in this Section 9.4, file
an amendment to any previously-filed Tax Return except in accordance with the procedures set
forth in this Section 9.4, take or initiate any voluntary discussion, examination or Contract with a
taxing authority (including any voluntary disclosure agreement or similar process), or otherwise
take any Tax position that has the effect of increasing any Tax that is payable or otherwise borne
by Sellers or their Affiliates, unless Purchaser is advised in good faith by a nationally recognized
accounting firm or law firm that there is no adequate “reporting position” with respect to any
previously-asserted position with respect to Taxes of such Acquired Entity or Business. Upon such
determination, Purchaser shall provide no less than 45 days’ notice of such position before filing
any such Tax Return or otherwise taking such action. In the event Sellers disagree with such Tax
position, and the dispute cannot be resolved between the Parties, such dispute shall be submitted
to an independent national accounting firm or law firm for resolution, with the costs of such
resolution to be evenly split by Purchaser, on the one hand, and Sellers, on the other hand. The
determination of such independent national accounting firm or law firm shall be binding on all
Parties and any Tax Return shall be filed consistently with such resolution. Notwithstanding
anything to the contrary, Purchaser shall not, and shall cause its Affiliates not to make, any election
under Sections 338 or 336 of the Tax Code with respect to Transactions and any Acquired Entity.
Section 9.5 Intended Tax Treatment. The Parties intend that, for U.S. federal, and
applicable state and local, income Tax purposes, the purchase of Acquired Assets is to be treated
as a taxable purchase under Section 1001 of the Tax Code by Purchasers from the Sellers (the
“Intended Tax Treatment”). The Parties shall prepare and file all Tax Returns on a basis consistent
with the Intended Tax Treatment and, unless otherwise required by applicable Law, shall (and will
not permit any of their respective Affiliates to) take no inconsistent position on any Tax Return, in
any Tax audit, or similar proceeding before any Tax authority.
Section 9.6 Straddle Period. In the case of any Straddle Period, the amount of any
Taxes based on or measured by gross or net income, gross or net sales, payroll or payment or
receipts of the Acquired Entities or with respect to the Acquired Assets for the Pre-Closing Tax
Period shall be determined based on an interim closing of the books as of the close of business on
the Closing Date (and the taxable period of each partnership or “controlled foreign corporation”
within the meaning of the Tax Code in which any Acquired Entities owns an interest shall be
deemed to end on the Closing Date) except that exemptions, allowances or deductions that are
calculated on an annual basis (including depreciation and amortization deductions, other than with
respect to property placed in service after the Closing), shall be allocated on a per diem basis, and
the amount of other Taxes of the Acquired Entities or with respect to the Acquired Assets for a
Straddle Period which relate to the Pre-Closing Tax Period shall be deemed to be the amount of
such Tax for the entire taxable period multiplied by a fraction the numerator of which is the number
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of days in the taxable period ending on the Closing Date and the denominator of which is the
number of days in such Straddle Period. Sellers shall be liable for the proportionate amount of
such Taxes that is attributable to the Pre-Closing Tax Period, and Purchaser shall be liable for the
proportionate amount of such Taxes that is attributable to the Post-Closing Tax Period; provided
that the Parties acknowledge and agree that Sellers shall have no further liability upon paying its
portion of such Taxes according to the apportionment pursuant to this Section 9.6. Such
apportionment shall be made as soon as reasonably practicable on or after the Closing based on
the most recent available personal property Tax bill issued by the relevant taxing jurisdiction(s).
Section 9.7 Transferred Employees. Purchaser and Sellers agree to utilize or cause
their respective Affiliates to utilize, the standard procedure set forth in Revenue Procedure 2004-
53, 2004-2 C.B. 320, with respect to wage reporting in respect of Transferred Employees.
ARTICLE X
MISCELLANEOUS
Section 10.1 Non-Survival of Representations and Warranties and Certain
Covenants; Certain Waivers. Each of the representations and warranties and the covenants and
agreements (to the extent such covenant or agreement contemplates or requires performance by
such Party prior to the Closing) of the Parties set forth in this Agreement or in any other
Transaction Agreement, will terminate effective immediately as of the Closing such that no claim
for breach of any such representation, warranty, covenant or agreement, detrimental reliance or
other right or remedy (whether in contract, in tort or at law or in equity) may be brought with
respect thereto after the Closing. Each covenant and agreement that explicitly contemplates
performance after the Closing, will, in each case and to such extent, expressly survive the Closing
in accordance with its terms, and if no term is specified, then for five years following the Closing
Date, and nothing in this Section 10.1 will be deemed to limit any rights or remedies of any Person
for breach of any such surviving covenant or agreement. Purchaser and Sellers acknowledge and
agree, on their own behalf and on behalf of the Purchaser Group or the Seller Parties, as the case
may be, that the agreements contained in this Section 10.1 (a) require performance after the
Closing to the maximum extent permitted by applicable Law and will survive the Closing for five
years and (b) are an integral part of the Transactions and that, without the agreements set forth in
this Section 10.1, none of the Parties would enter into this Agreement. Purchaser on behalf of itself
and the Purchaser Group hereby waives all rights and remedies with respect to any environmental,
health or safety matters, including those arising under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, or any other Environmental Laws, relating to
this Agreement or the Transactions arising solely from any actions by Sellers prior to the Closing.
Section 10.2 Expenses. Whether or not the Closing takes place, except as otherwise
provided herein, all fees, costs and expenses (including fees, costs and expenses of Advisors)
incurred in connection with the negotiation of this Agreement and the other Transaction
Agreements, the performance of this Agreement and the other Transaction Agreements and the
consummation of the Transactions will be paid by the Party incurring such fees, costs and
expenses; it being acknowledged and agreed that (a) all fees and expenses in connection with any
filing or submission that is necessary under any Foreign Competition Laws will be allocated
pursuant to Section 6.4, (b) all Transfer Taxes will be allocated pursuant to Section 9.1 and (c) all
Cure Costs will be allocated pursuant to Section 5.2.
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Section 10.3 Notices. Except as otherwise expressly provided herein, all notices,
demands and other communications to be given or delivered under or by reason of the provisions
of this Agreement will be in writing and will be deemed to have been given (a) when personally
delivered, (b) when transmitted by electronic mail, if delivered by 5:00 P.M. local time of the
recipient on a Business Day and otherwise on the following Business Day, (c) the day following
the day on which the same has been delivered prepaid to a reputable national overnight air courier
service or (d) the third Business Day following the day on which the same is sent by certified or
registered mail, postage prepaid, in each case, to the respective Party at the number, electronic
mail address or street address, as applicable, set forth below, or at such other number, electronic
mail address or street address as such Party may specify by written notice to the other Party.
Notices to Purchaser:
ZOLL Medical Corporation
269 Mill Road
Chelmsford, MA 01824
Attention: Jennifer Landis and Christine Lynch
Email: JLandis@zoll.com and CLynch@zoll.com
with a copy to (which shall not constitute notice):
Cooley LLP
500 Boylston Street, Floor 14
Boston, MA 02116
Attention: Miguel J. Vega
Email: mvega@cooley.com
Notices to Sellers:
Vyaire Medical
26125 North Riverwoods Blvd
Mettawa, IL 60045
Attention: Legal Department
Email: legalresources@vyaire.com
with copies to (which shall not constitute notice):
Kirkland & Ellis LLP
333 West Wolf Point Plaza
Chicago, IL 60654
Attention: Spencer A. Winters, P.C.
Adam T. Clifford, P.C.
Steve Toth
Yusuf Salloum
Email: spencer.winters@kirkland.com
adam.clifford@kirkland.com
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steve.toth@kirkland.com
yusuf.salloum@kirkland.com
Section 10.4 Binding Effect; Assignment; Designated Purchasers.
(a) This Agreement shall be binding upon Purchaser and, subject to the terms
of the Bidding Procedures Order (with respect to the matters covered thereby) and the entry and
terms of the Sale Order, Sellers, and shall inure to the benefit of and be so binding on the Parties
and their respective successors and permitted assigns, including any trustee or estate representative
appointed in the Bankruptcy Cases or any successor Chapter 7 cases; provided that neither this
Agreement nor any of the rights or obligations hereunder may be assigned or delegated without
the prior written consent of Purchaser and Sellers, and any attempted assignment or delegation
without such prior written consent shall be null and void.
(b) Prior to the Closing, Purchaser shall be entitled to designate, by written
notice to Sellers no later than five (5) Business Days prior to the Closing Date, one or more
Affiliates to (i) purchase the Acquired Assets and pay the corresponding Purchase Price amount,
(ii) assume Assumed Liabilities, or (iii) take title directly to any Acquired Asset (any such Affiliate
that shall be designated in accordance with this clause, a “Designated Purchaser”), and, to the
extent of any such designation, this Agreement shall be binding upon each of such Affiliates, their
successors and permitted assigns, which shall be treated as Purchaser to such extent hereunder;
provided that Purchaser shall remain primarily liable until the transfer to any such Designated
Purchaser and the satisfaction by such Designated Purchaser of any related obligations or other
Liabilities hereunder.
Section 10.5 Amendment and Waiver. Any provision of this Agreement or the
Schedules or exhibits hereto may be (a) amended only in a writing signed by Purchaser and Sellers
or (b) waived only in a writing executed by the Party against which enforcement of such waiver is
sought. No waiver of any provision hereunder or any breach or default thereof will extend to or
affect in any way any other provision or prior or subsequent breach or default.
Section 10.6 Third Party Beneficiaries. Except as otherwise expressly provided herein,
nothing expressed or referred to in this Agreement will be construed to give any Person other than
(i) for purposes of Section 6.11, the Released Parties, and (ii) for purposes of Section 10.8 the
Non-Recourse Persons, and (iii) the Parties hereto and such permitted assigns, any legal or
equitable right, remedy, or claim under or with respect to this Agreement or any provision of this
Agreement.
Section 10.7 Non-Recourse. This Agreement may only be enforced against, and any
Action based upon, arising out of or related to this Agreement may only be brought against, the
Persons that are expressly named as Parties to this Agreement. Except to the extent named as a
Party to this Agreement, and then only to the extent of the specific obligations of such Parties set
forth in this Agreement, no past, present or future shareholder, member, partner, manager, director,
officer, employee, Affiliate, agent or Advisor of any Party (each, a “Non-Recourse Person”) will
have any Liability (whether in contract, tort, equity or otherwise) for any of the representations,
warranties, covenants, agreements or other obligations or Liabilities of any of the Parties to this
Agreement or for any Agreement Dispute and (ii) in no event shall any Party have any shared or
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vicarious liability, or otherwise be the subject of legal or equitable claims, for the actions or
omissions (including through equitable claims (such as unjust enrichment) not requiring proof of
wrongdoing committed by the subject of such claims) of any other Person, and each of such
Persons are intended third party beneficiaries of this Section 10.8 and shall be entitled to enforce
this Section 10.8 as if a Party directly hereto.
Section 10.8 Severability. Whenever possible, each provision of this Agreement will be
interpreted in such manner as to be effective and valid under applicable Law, but if any provision
of this Agreement is held to be prohibited by or invalid under applicable Law in any jurisdiction,
such provision will be ineffective only to the extent of such prohibition or invalidity in such
jurisdiction, without invalidating the remainder of such provision or the remaining provisions of
this Agreement or in any other jurisdiction.
Section 10.9 Construction. The language used in this Agreement will be deemed to be
the language chosen by the Parties to express their mutual intent, and no rule of strict construction
will be applied against any Person. The headings of the sections and paragraphs of this Agreement
have been inserted for convenience of reference only and will in no way restrict or otherwise
modify any of the terms or provisions hereof.
Section 10.10 Schedules. The Schedules have been arranged for purposes of convenience
in separately numbered sections corresponding to the sections of this Agreement; provided that
each section of the Schedules will be deemed to incorporate by reference all information disclosed
in any other section of the Schedules, and any disclosure in the Schedules will be deemed a
disclosure against any representation or warranty set forth in this Agreement in each case, to the
extent the relevance of such disclosure to such other section of the Schedule or such other
representation or warrant set forth in this Agreement is readily apparent on the face of such
disclosure. Capitalized terms used in the Schedules and not otherwise defined therein have the
meanings given to them in this Agreement. The specification of any dollar amount or the inclusion
of any item in the representations and warranties contained in this Agreement, the Schedules or
the attached exhibits is not intended to imply that the amounts, or higher or lower amounts, or the
items so included, or other items, are or are not required to be disclosed (including whether such
amounts or items are required to be disclosed as material or threatened) or are within or outside of
the Ordinary Course, and no Party will use the fact of the setting of the amounts or the fact of the
inclusion of any item in this Agreement, the Schedules or exhibits in any dispute or controversy
between the Parties as to whether any obligation, item or matter not set forth or included in this
Agreement, the Schedules or exhibits is or is not required to be disclosed (including whether the
amount or items are required to be disclosed as material or threatened) or are within or outside of
the Ordinary Course. In addition, matters reflected in the Schedules are not necessarily limited to
matters required by this Agreement to be reflected in the Schedules. No information set forth in
the Schedules will be deemed to broaden in any way the scope of the Parties’ representations and
warranties. Any description of any agreement, document, instrument, plan, arrangement or other
item set forth on any Schedule is qualified in its entirety by the terms of such agreement, document,
instrument, plan, arrangement, or item which terms will be deemed disclosed for all purposes of
this Agreement. The information contained in this Agreement, in the Schedules and exhibits hereto
is disclosed solely for purposes of this Agreement, and no information contained herein or therein
will be deemed to be an admission by any Party to any third party of any matter whatsoever,
including any violation of Law or breach of Contract.
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Section 10.11 Complete Agreement. This Agreement, together with the Confidentiality
Agreement and any other agreements expressly referred to herein or therein, contains the entire
agreement of the Parties respecting the sale and purchase of the Acquired Assets and the Assumed
Liabilities and the Transactions and supersedes all prior agreements among the Parties respecting
the sale and purchase of the Acquired Assets and the Assumed Liabilities and the Transactions. In
the event an ambiguity or question of intent or interpretation arises with respect to this Agreement,
the terms and provisions of the execution version of this Agreement will control and prior drafts
of this Agreement and the documents referenced herein will not be considered or analyzed for any
purpose (including in support of parol evidence proffered by any Person in connection with this
Agreement), will be deemed not to provide any evidence as to the meaning of the provisions hereof
or the intent of the Parties with respect hereto and will be deemed joint work product of the Parties.
Section 10.12 Specific Performance. The Parties agree that irreparable damage, for
which monetary relief, even if available, would not be an adequate remedy, would occur in the
event that any provision of this Agreement is not performed in accordance with its specific terms
or is otherwise breached, including if any of the Parties fails to take any action required of it
hereunder to consummate the Transactions. It is accordingly agreed that (a) the Parties will be
entitled to an injunction or injunctions, specific performance or other equitable relief to prevent
breaches of this Agreement and to enforce specifically the terms and provisions hereof in the courts
described in Section 10.14 without proof of damages or otherwise, and (b) the right of specific
performance and other equitable relief is an integral part of the Transactions and without that right,
neither Sellers nor Purchaser would have entered into this Agreement. The Parties acknowledge
and agree that any Party pursuing an injunction or injunctions or other Order to prevent breaches
of this Agreement and to enforce specifically the terms and provisions of this Agreement in
accordance with this Section 10.12 will not be required to provide any bond or other security in
connection with any such Order. The remedies available to Sellers or Purchaser pursuant to this
Section 10.12 will be in addition to any other remedy to which they were entitled at law or in
equity, and the election to pursue an injunction or specific performance will not restrict, impair or
otherwise limit any Seller or Purchaser from seeking to collect or collecting damages. If, prior to
the Outside Date, any Party brings any action, in each case in accordance with Section 10.14, to
enforce specifically the performance of the terms and provisions hereof by any other Party, the
Outside Date will automatically be extended (i) for the period during which such action is pending,
plus ten Business Days or (ii) by such other time period established by the court presiding over
such action, as the case may be. In no event will this Section 10.12 be used, alone or together with
any other provision of this Agreement, to require any Seller to remedy any breach of any
representation or warranty made by any Seller herein.
Section 10.13 Jurisdiction and Exclusive Venue. Each of the Parties irrevocably agrees
that any Action of any kind whatsoever, including a counterclaim, cross-claim, or defense,
regardless of the legal theory under which any Liability or obligation may be sought to be imposed,
whether sounding in contract or in tort or under statute, or whether at law or in equity, or otherwise
under any legal or equitable theory, that may be based upon, arising out of, or related to this
Agreement or the negotiation, execution, or performance of this Agreement or the Transactions
and any questions concerning the construction, interpretation, validity and enforceability of this
Agreement (each, an “Agreement Dispute”) brought by any other Party or its successors or assigns
will be brought and determined only in (a) the Bankruptcy Court and any federal court to which
an appeal from the Bankruptcy Court may be validly taken or (b) if the Bankruptcy Court is
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unwilling or unable to hear such Action, in the Court of Chancery of the State of Delaware (or if
such court lacks jurisdiction, any other state or federal court sitting in the State of Delaware) (the
“Chosen Courts”), and each of the Parties hereby irrevocably submits to the exclusive jurisdiction
of the Chosen Courts for itself and with respect to its property, generally and unconditionally, with
regard to any Agreement Dispute. Each of the Parties agrees not to commence any Agreement
Dispute except in the Chosen Courts, other than Actions in any court of competent jurisdiction to
enforce any Order, decree or award rendered by any Chosen Courts, and no Party will file a motion
to dismiss any Agreement Dispute filed in a Chosen Court on any jurisdictional or venue-related
grounds, including the doctrine of forum non-conveniens. The Parties irrevocably agree that venue
would be proper in any of the Chosen Court, and hereby irrevocably waive any objection that any
such court is an improper or inconvenient forum for the resolution of any Agreement Dispute.
Each of the Parties further irrevocably and unconditionally consents to service of process in the
manner provided for notices in Section 10.3. Nothing in this Agreement will affect the right of any
Party to serve process in any other manner permitted by Law.
Section 10.14 Governing Law; Waiver of Jury Trial.
(a) Except to the extent the mandatory provisions of the Bankruptcy Code
apply, this Agreement and any Agreement Dispute will be governed by and construed in
accordance with the internal Laws of the State of Delaware applicable to agreements executed and
performed entirely within such State without regards to conflicts of law principles of the State of
Delaware or any other jurisdiction that would cause the Laws of any jurisdiction other than the
State of Delaware to apply.
(b) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY
AGREEMENT DISPUTE IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES AND THEREFORE HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
AGREEMENT DISPUTE. EACH OF THE PARTIES AGREES AND CONSENTS THAT ANY
SUCH AGREEMENT DISPUTE WILL BE DECIDED BY COURT TRIAL WITHOUT A JURY
AND THAT THE PARTIES MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF
THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF
THE PARTIES TO THE IRREVOCABLE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
EACH PARTY (I) CERTIFIES THAT NO ADVISOR OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF ANY AGREEMENT DISPUTE, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (II) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES
HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.14(B).
Section 10.15 No Right of Set-Off. Purchaser, on its own behalf and on behalf the
Purchaser Group and its and their respective successors and permitted assigns, hereby waives any
rights of set-off, netting, offset, recoupment or similar rights that Purchaser, any member of the
Purchaser Group or any of its or their respective successors and permitted assigns has or may have
with respect to the payment of the Purchase Price or any other payments to be made by Purchaser
pursuant to this Agreement or any other document or instrument delivered by Purchaser in
connection herewith.
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Section 10.16 Counterparts and PDF. This Agreement and any other agreements
referred to herein or therein, and any amendments hereto or thereto, may be executed in multiple
counterparts, any one of which need not contain the signature of more than one party hereto or
thereto, but all such counterparts taken together will constitute one and the same instrument. Any
counterpart, to the extent signed and delivered by means of a .PDF or other electronic transmission,
will be treated in all manner and respects as an original Contract and will be considered to have
the same binding legal effects as if it were the original signed version thereof delivered in person.
Minor variations in the form of the signature page to this Agreement or any agreement or
instrument contemplated hereby, including footers from earlier versions of this Agreement or any
such other document, will be disregarded in determining the effectiveness of such signature. At
the request of any party or pursuant to any such Contract, each other party hereto or thereto will
re-execute original forms thereof and deliver them to all other parties. No party hereto or to any
such Contract will raise the use of a .PDF or other electronic transmission to deliver a signature or
the fact that any signature or Contract was transmitted or communicated through the use of PDF
or other electronic transmission as a defense to the formation of a Contract and each such party
forever waives any such defense.
Section 10.17 Publicity. Neither Sellers nor Purchaser shall issue any press release or
public announcement concerning this Agreement or the Transactions without obtaining the prior
written approval of the other Party, which approval will not be unreasonably conditioned, withheld
or delayed, unless, in the reasonable judgment of Purchaser or Sellers, disclosure is otherwise
required by applicable Law or by the Bankruptcy Court with respect to filings to be made with the
Bankruptcy Court in connection with this Agreement or by the applicable rules of any stock
exchange on which Purchaser or Sellers (or their respective Affiliates) lists securities; provided
that the Party intending to make such release shall use its reasonable efforts consistent with such
applicable Law or Bankruptcy Court requirement to consult with the other Party with respect to
the text thereof.
Section 10.18 Bulk Sales Laws. The Parties intend that pursuant to Section 363(f) of the
Bankruptcy Code, the transfer of the Acquired Assets shall be free and clear of any Encumbrances
in the Acquired Assets including any liens or claims arising out of the bulk transfer Laws except
Permitted Encumbrances, and the Parties shall take such steps as may be necessary or appropriate
to so provide in the Sale Order. In furtherance of the foregoing, each Party hereby waives
compliance by the Parties with the “bulk sales,” “bulk transfers” or similar Laws and all other
similar Laws in all applicable jurisdictions in respect of the Transactions.
Section 10.19 Sellers’ Representative. Each Party agrees that Vyaire has the power and
authority to unilaterally act on behalf of all or any of the Sellers for the purposes specified under
this Agreement. Such power will include the power to make all decisions, actions, Consents and
determinations on behalf of the Sellers, including to make any waiver of any Closing condition or
agree to any amendment to this Agreement. No Seller shall have any right to object, dissent, protest
or otherwise contest the same. Purchaser shall be entitled to rely on any action or omission taken
by Vyaire on behalf of the Sellers.
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ARTICLE XI
ADDITIONAL DEFINITIONS AND INTERPRETIVE MATTERS
Section 11.1 Certain Definitions.
(a) “Acquired Business” means the portion of the Business that relates
specifically to each of the Bellavista, Fabian, 3100 HFOV and LTV product lines.
(b) “Acquired Cash Amount” means the aggregate amount of all cash and Cash
and Cash Equivalents of the Acquired Entities determined as of 11:59 PM Eastern time on the date
immediately preceding the Closing Date.
(c) “Acquired Entity Benefit Plan” means any Employee Benefit Plan that is
maintained exclusively by one or more Acquired Entities.
(d) “Action” means any action, suit, litigation, arbitration, mediation, audit,
proceeding (including any civil, criminal, administrative, investigative or appellate proceeding) or
prosecution, of any kind whatsoever, whether sounding in contract or tort, or whether at law or in
equity, or otherwise under any legal or equitable theory, commenced, brought, conducted or heard
by or before any Governmental Body.
(e) “Advisors” means, with respect to any Person as of any relevant time, any
directors, officers, employees, investment bankers, financial advisors, accountants, agents,
attorneys, consultants, or other representatives of such Person.
(f) “Affiliate” means, with respect to any Person, any other Person that, directly
or indirectly through one or more intermediaries, controls, or is controlled by, or is under common
control with, such Person, and the term “control” (including the terms “controlled by” and “under
common control with”) means the possession, directly or indirectly, of the power to direct or cause
the direction of the management, affairs and policies of such Person, whether through ownership
of voting securities, by Contract or otherwise. For the avoidance of doubt, the Acquired Entities
will be Affiliates of Sellers until Closing and Affiliates of Purchaser after Closing.
(g) “Alternative Transaction” means any transaction (or series of transactions),
whether direct or indirect, whereby any Person or group of Persons (other than Sellers and their
Affiliates or Purchaser and its Affiliates) acquires (i) beneficial ownership of a majority of the
Equity Interests of Sellers or (ii) a material portion of the Acquired Assets, in each case whether
by merger, sale of assets or equity, recapitalization, plan of reorganization or otherwise.
Notwithstanding the foregoing, a liquidation or wind-down of Sellers’ estates shall not be an
Alternative Transaction.
(h) “Auction” shall have the meaning ascribed to such term in the Bidding
Procedures Order.
(i) “Bidding Procedures Order” means the Order (I) Approving the Auction
and Bidding Procedures, (II) Approving Stalking Horse Bid Protections, (III) Scheduling Bid
Deadlines and an Auction, (IV) Approving the Form and Manner of Notice Thereof, and (V)
Granting Related Relief (Docket No. 249).
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(j) “Business” means the manufacturing and sale of medical ventilators and
associated services and consumables for acute, nonacute and neonatal applications.
(k) “Business Day” means any day other than a Saturday, Sunday or other day
on which banks in New York City, New York are authorized or required by Law to be closed.
(l) “Business Employee” means each (i) employee of any of the Sellers whose
primary function relates to the Acquired Business, and any replacement of any such employee
hired in compliance with Section 6.1, (ii) employee of any Acquired Entity and (iii) Ed Manley
and Terrie McDaniel.
(m) “Cash and Cash Equivalents” means all cash (including checks and deposits
in transit, demand deposits, money markets or similar accounts), checking account balances,
marketable securities, certificates of deposits, time deposits, bankers’ acceptances, commercial
paper, security entitlements, securities accounts, commodity Contracts, commodity accounts,
government securities, and any other cash equivalents whether on hand, in transit, in banks or other
financial institutions, or otherwise held.
(n) “COBRA” means the continuation coverage requirements set forth in the
Consolidated Omnibus Budget Reconciliation Act of 1985., as set forth in Section 601, et seq. of
ERISA, Section 4980B of the Tax Code, or any similar state Law.
(o) “Confidentiality Agreement” means that certain letter agreement, dated as
of February 7, 2024, by and between Apax Partners and Purchaser.
(p) “Consent” means any approval, consent, ratification, permission, waiver or
authorization, or an Order of the Bankruptcy Court that deems or renders unnecessary the same.
(q) “Contract” means any written contract, indenture, note, bond, lease,
sublease, mortgage, agreement, guarantee, or other agreement that is binding upon a Person or its
property, in each case, other than a purchase order, service order, or sales order.
(r) “Debtors” means, collectively, the debtors-in-possession under the
Bankruptcy Cases.
(s) “Documents” means all of Sellers’ and the Acquired Entities’ written files,
documents, instruments, papers, books, reports, records, tapes, microfilms, photographs, letters,
budgets, forecasts, plans, operating records, safety and environmental reports, data, studies, and
documents, Tax Returns, ledgers, journals, title policies, customer lists, regulatory filings, FDA
Documents, operating data and plans, research material, technical documentation (design
specifications, engineering information, test results, logic manuals, processes, flow charts, etc.),
user documentation (installation guides, user manuals, training materials, release notes, working
papers, etc.), marketing documentation (sales brochures, flyers, pamphlets, web pages, etc.), and
other similar materials, in each case whether or not in electronic form.
(t) “EEA” means the European Economic Area comprised of the 27 EU
Member States, Iceland, Liechtenstein and Norway.
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(u) “Employee Benefit Plan” means each (i) employee welfare benefit plan
within the meaning of Section 3(1) of ERISA (whether or not subject to ERISA), (ii) employee
pension benefit plan within the meaning of Section 3(2) of ERISA (whether or not subject to
ERISA), (iii) stock option, stock purchase, stock appreciation right or other equity or equity- based
agreement, arrangement, program or plan, (iv) employment, individual consulting, severance or
termination pay, separation or retention agreement, arrangement, program, plan, or policy, and (v)
bonus, incentive, stay, deferred compensation, profit-sharing, pension, retirement, post-
termination health or welfare, vacation, paid time off, severance, fringe or any other compensation
or benefit plan, program, policy, Contract, agreement or other arrangement, in each case that is
sponsored, maintained or contributed to by Sellers, any Acquired Entity or Sellers’ Subsidiaries or
to which any Seller, Acquired Entity or its Subsidiaries is obligated to contribute or with respect
to which any Seller, Acquired Entity or its Subsidiaries has any Liability; provided that plans,
programs or agreements required to maintained or contributed under applicable Law or that are
maintained by a Governmental Body shall not be considered Employee Benefit Plans.
(v) “Encumbrance” means any lien (as defined in Section 101(37) of the
Bankruptcy Code), encumbrance, claim (as defined in Section 101(5) of the Bankruptcy Code),
charge, mortgage, deed of trust, option, pledge, security interest or similar interests, title defects,
hypothecations, easements, rights of way, encroachments, Orders, conditional sale or other title
retention agreements and other similar impositions, imperfections or defects of title or restrictions
on transfer or use.
(w) “Environmental Laws” means all applicable Laws concerning pollution or
protection of the environment.
(x) “Equipment” means any and all equipment, computers, furniture,
furnishings, fixtures, office supplies, vehicles and all other fixed assets.
(y) “Equity Interests” means, with respect to a Person, any membership
interests, partnership interests, profits interests, capital stock or other equity securities (including
profit participation features or equity appreciation rights, phantom stock rights or other similar
rights) or ownership interests of such Person, or any securities (including debt securities or other
indebtedness) exercisable or exchangeable for or convertible into, or other rights to acquire,
membership interests, partnership interests, capital stock or other equity securities or ownership
interests of such Person (or otherwise constituting an investment in such Person).
(z) “ERISA” means the Employee Retirement Income Security Act of 1974.
(aa) “ERISA Affiliate” means any Person or trade or business (whether or not
incorporated), that, along with any Seller, is or would be considered a single employer under
Section 414 of the Tax Code.
(bb) “Excluded Tax Returns” means Tax Returns (or any portion of any Tax
Return) and other books and records related to (i) Taxes that are not primarily related to an
Acquired Entity or any Acquired Asset or the Business or (ii) any consolidated, combined,
affiliated or unitary group for Tax purposes that includes Seller or any of its Affiliates that is not
an Acquired Entity; provided, however, Excluded Tax Returns with respect to the Acquired
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Entities shall not include reasonably relevant US informational tax reporting with respect to the
Acquired Entities (e.g., IRS Forms 5471, 8858, etc.).
(cc) “FDA Documents” means all books, records, documents and information
related to all medical devices Related to the Acquired Business, including all FDA premarket
approvals and 510(k) clearances related thereto, including all correspondence, filings, notices and
other communications to or from the FDA, audit reports from audits conducted by anyone or entity
other than the FDA, all device history files, device master records with all letter to file documents
and all quality control documents, in all cases, related to all medical devices Related to the
Acquired Business.
(dd) “Fraud” means an act committed by Sellers, in the making to Purchaser the
representations and warranties in Article III or in the certificate delivered pursuant to Section
2.4(f), in each case, with intent to deceive another Party, or to induce such other Party to enter into
this Agreement and requires (i) a false representation of material fact made in such representation;
(ii) with knowledge that such representation is false; (iii) with an intention to induce the Party to
whom such representation is made to act or refrain from acting in reliance upon it; (iv) causing
that Party, in justifiable reliance upon such false representation, to take or refrain from taking
action; and (v) causing such Party to suffer damage by reason of such reliance, which together
constitutes common law fraud under Delaware Law (and does not include any fraud claim based
on constructive knowledge, unjust enrichment, negligent misrepresentation, recklessness or a
similar theory).
(ee) “GAAP” means United States generally accepted accounting principles as
in effect from time to time.
(ff) “Governmental Authorization” means any permit, license, certificate,
approval, consent, permission, clearance, designation, qualification or authorization issued,
granted, given or otherwise made available by or under the authority of any Governmental Body
or pursuant to any Law.
(gg) “Governmental Body” means any government, quasi-governmental entity,
or other governmental or regulatory body, agency or political subdivision thereof of any nature,
whether foreign, supranational, multinational, national, federal, state or local, or any agency,
branch, department, official, entity, instrumentality, authority or accredited entity including
Notified Bodies or authority thereof, or any court or arbitrator of applicable jurisdiction.
(hh) “Hazardous Substance” means any toxic or hazardous material, substance
or waste regulated under any Environmental Laws due to its dangerous or deleterious properties
or characteristics.
(ii) “Information Privacy and Security Laws” means all applicable Laws
concerning the privacy, protection, processing, transfer, or security of Personal Information,
including if and where applicable, state social security number protection Laws, the EU General
Data Protection Regulation (“GDPR”), the UK Data Protection Act, the Federal Trade
Commission Act, the Gramm Leach Bliley Act, the Fair Credit Reporting Act, the Fair and
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Accurate Credit Transaction Act, state consumer protection Laws, and Laws governing email and
telephonic marketing.
(jj) “Intellectual Property” means all intellectual property and intellectual
property rights and all rights associated therewith, throughout the world, including all of the
following: (i) patents, patent applications, patent disclosures, reissues, divisionals, renewals,
extensions, provisionals, continuations and continuations-in-part thereof, all inventions (whether
patentable or not), invention disclosures, improvements; (ii) trademarks, service marks, trade
dress, all trade names, logos, corporate names and Internet domain names, Internet and World
Wide Web URLs or addresses, together with any and all goodwill associated with each of the
foregoing; (iii) copyrights; (iv) registrations and applications for any of the foregoing, and other
rights corresponding thereto; (v) know how, trade secrets and confidential or proprietary business
or technical information; (vi) all computer software, including all source code, object code,
firmware, development tools, files, records and data, all schematics, netlists, test methodologies,
test vectors, emulation and simulation tools and reports, hardware development tools, and all rights
in prototypes, breadboards and other devices, all databases and data collections and all rights
therein; (vii) drawings, schematics, technical data, other technical plans, all mask works, mask
work registrations and applications therefor, and any equivalent or similar rights in semiconductor
masks, layouts, architectures or topology, proprietary processes and formulae, algorithms,
specifications, customer lists and supplier lists, all industrial designs and any registrations and
applications therefor; and (viii) all other intellectual property, including all moral and economic
rights of authors and inventors, however denominated, and any similar or equivalent rights to any
of the foregoing, and all tangible and intangible embodiments of the foregoing.
(kk) “Inventory” means all inventory (including finished goods, supplies, raw
materials, work in progress, spare, replacement and component parts) maintained or held by, stored
by or on behalf of, or in transit to, any of Sellers or the Acquired Entities.
(ll) “IT Assets” means all information technology systems, computer systems,
networks, communications systems, and computer software, hardware, and devices owned or
controlled by or for Sellers in the conduct of the Business.
(mm) “Knowledge of Sellers”, “Sellers’ Knowledge” or words of like import,
means the actual knowledge, as of the date of this Agreement, after reasonable inquiry of direct
reports in the applicable subject matter, of John Bibb, Vikram Bajaj, Tammy Noll, Terrie
McDaniel, Perry Sabo, Brett Wollen, none of whom, for the sake of clarity and avoidance of doubt,
shall have any personal Liability or obligations regarding such knowledge.
(nn) “Law” means any federal, state, provincial, local, municipal, foreign or
international, supranational, multinational, national or other law, statute, legislation, constitution,
principle of common law, ordinance, code, decree, treaty, convention, rule, regulation, directive,
standard, guidance or Order issued, enacted, adopted, promulgated, implemented or otherwise put
into effect by or under the authority of any Governmental Body.
(oo) “Lease” means all leases, subleases, licenses, concessions and other
agreements (written or oral) pursuant to which any Seller or Acquired Entity holds any Leased
Real Property.
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(pp) “Leasehold Improvements” means all buildings, structures, improvements
and fixtures which are owned by a Seller or Acquired Entity and located on any Leased Real
Property, regardless of whether title to such buildings, structures, improvements or fixtures are
subject to reversion to the landlord or other third party upon the expiration or termination of the
Lease for such Leased Real Property.
(qq) “Liability” means, as to any Person, any debt, adverse claim, liability, duty,
responsibility, obligation, commitment, assessment, cost, expense, loss, expenditure, charge, fee,
penalty, fine, contribution, or premium of any kind or nature whatsoever, whether known or
unknown, asserted or unasserted, absolute or contingent, direct or indirect, accrued or unaccrued,
liquidated or unliquidated, or due or to become due, and regardless of when sustained, incurred or
asserted or when the relevant events occurred or circumstances existed.
(rr) “Material Adverse Effect” means a material adverse effect on the Acquired
Assets and Assumed Liabilities, taken as whole; provided that none of the following (or
consequences thereof), either alone or in combination, shall constitute, or be taken into account in
determining whether or not there has been, a Material Adverse Effect: (i) any matter, event,
change, development, occurrence, circumstance or effect (each, an “Effect”) in, arising from or
relating to general business or economic conditions affecting the industry in which Sellers operate;
(ii) Effects in, arising from or relating to national or international political or social conditions,
including tariffs, riots, protests, the engagement by the United States or other country in hostilities
or the escalation thereof, whether or not pursuant to the declaration of a national emergency or
war, or the occurrence or the escalation of any military, cyber or terrorist (whether or not state-
sponsored) attack upon the United States or any other country, or any of its territories, possessions,
or diplomatic or consular offices or upon any military installation, asset, Equipment or personnel
of the United States or of any other country; (iii) Effects in, arising from or relating to any fire,
flood, hurricane, earthquake, tornado, windstorm, other calamity or act of God, global or national
health concern, epidemic, pandemic (whether or not declared as such by any Governmental Body),
viral outbreak (including “Coronavirus” or “COVID-19” or the worsening thereof) or any
quarantine or trade restrictions related thereto or any other force majeure; (iv) Effects in, arising
from or relating to the decline or rise in price of any currency or any Equipment or supplies
necessary to or used in the provision of services by any Seller or their Subsidiaries; (v) Effects in,
arising from, or relating to financial, banking, or securities markets (including (A) any disruption
of any of the foregoing markets, (B) any change in currency exchange rates, (C) any decline or
rise in the price of any security, commodity, Contract, or index, and (D) any increased cost, or
decreased availability, of capital or pricing or terms related to any financing for the Transactions);
(vi) Effects in, arising from or relating to changes in, GAAP or the interpretation thereof; (vii)
Effects in, arising from or relating to changes in, Laws or other binding directives or
determinations issued or made by or agreements with or consents of any Governmental Body and
any increase (or decrease) in the terms or enforcement of (or negotiations or disputes with respect
to) any of the foregoing; (viii) Effects in, arising from or relating to (A) the taking of any action
permitted or contemplated by this Agreement or at the request of Purchaser or its Affiliates, (B)
the failure to take any action if such action is prohibited by this Agreement, (C) Purchaser’s failure
to consent to any of the actions restricted in Section 6.1 or (D) the negotiation, announcement, or
pendency of this Agreement or the Transactions, the identity, nature, or ownership of Purchaser or
Purchaser’s plans with respect to the Acquired Assets and Assumed Liabilities, including the
impact thereof on the relationships, contractual or otherwise, of the business of Sellers or their
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Affiliates (including the Business) with employees, customers, lessors, suppliers, vendors, or other
commercial partners or litigation arising from or relating to this Agreement or the Transactions;
(ix) Effects in, arising from, or relating to any existing event, occurrence or circumstance that is
publicly known or disclosed or with respect to which Purchaser has knowledge as of the date
hereof; (x) Effects that arise from any seasonal fluctuations in the Business; (xi) any failure, in and
of itself, to achieve any budgets, projections, forecasts, estimates, plans, predictions, performance
metrics or operating statistics or the inputs into such items (whether or not shared with Purchaser
or its Affiliates or Advisors) and any other failure to win or maintain customers or business; (xii)
the Effect of any action taken by Purchaser or its Affiliates with respect to the Transactions or the
financing thereof or any breach by Purchaser of this Agreement; (xiii) the matters set forth on the
Schedules; or (xiv) (A) the commencement or pendency of the Bankruptcy Cases; (B) any
objections in the Bankruptcy Court to (1) this Agreement or any of the Transactions, (2) the Sale
Order or the reorganization or liquidation of Sellers or their Affiliates, (3) the Bidding Procedures
Order, or (4) the assumption or rejection of any Assigned Contract; or (C) any Order of the
Bankruptcy Court or any actions or omissions of Sellers or their Affiliates in compliance therewith;
provided that any adverse Effect resulting or arising from any matter described in clauses (i)
through (v) may be taken into account in determining whether there has been a Material Adverse
Effect to the extent, and only to the extent, that such Effect has had a materially disproportionate
adverse effect on the Sellers relative to similarly situated participants in the industries and
geographic areas in which the Sellers operate (in which case only such incremental materially
disproportionate adverse effect may be taken into account in determining whether there has been
a Material Adverse Effect).
(ss) “Mixed-Use Contract” means any Contract that includes both terms and
conditions that are Related to the Acquired Business and terms and conditions that relate to other
businesses of Vyaire or its Affiliates between (i) Vyaire or one of its Affiliates, on the one hand
and (ii) a supplier, vendor, distributor, reseller or customer of the Business, on the other hand.
(tt) “Notified Body” means a conformity assessment body designated by a
national competent authority of a country of the EEA in accordance with the rules governing
medical devices in the EEA.
(uu) “Order” means any order, injunction, judgment, decree, ruling, writ or
arbitration award of a Governmental Body, including any order entered by the Bankruptcy Court
in the Bankruptcy Cases (including the Sale Order).
(vv) “Ordinary Course” means the ordinary and usual course of operations of the
Business, taken as a whole, taking into account the contemplation, commencement and pendency
of the Bankruptcy Cases.
(ww) “Organizational Documents” means, with respect to any Person (other than
an individual), the articles or certificate of incorporation, articles or certificate of formation or
articles or certificate of organization, charter, bylaws, regulations, operating agreement, certificate
of limited partnership, partnership agreement, and all other similar documents, instruments, or
certificates executed, adopted, or filed in connection with the creation, formation, or organization
of a person, including any amendments or supplements thereto.
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(xx) “Permitted Encumbrances” means (i) Encumbrances for utilities or Taxes
not yet due and payable, or that are being contested in good faith by appropriate proceedings, or
the nonpayment of which is permitted or required by the Bankruptcy Code, (ii) easements, rights
of way, restrictive covenants, encroachments and similar non-monetary Encumbrances or non-
monetary impediments that do not, individually or in the aggregate, adversely affect the operation
of the Business or the Acquired Assets and, in the case of the Leased Real Property, that do not,
individually or in the aggregate, adversely affect the use or occupancy of such Leased Real
Property as it relates to the operation of the Acquired Assets, (iii) applicable zoning Laws, building
codes, land use restrictions and other similar restrictions imposed by Law that are not violated by
the current use or occupancy of such Leased Real Property, as applicable, or the operation of
Business thereon, as conducted immediately prior to the Closing Date (iv) materialmans’,
mechanics’, artisans’, shippers’, warehousemans’ or other similar common law or statutory liens
incurred in the Ordinary Course for amounts not yet due and payable or that are being contested
by appropriate proceedings, (v) licenses granted on a non-exclusive basis, (vi) any Encumbrances
set forth on Schedule 11.1(xx), and (vii) solely prior to Closing, any Encumbrances that will be
removed or released by operation of the Sale Order.
(yy) “Person” means an individual, corporation, partnership, limited liability
company, joint venture, association, trust, unincorporated organization, labor union, organization,
estate, Governmental Body or other entity or group.
(zz) “Personal Information” means any data or information (i) that identifies,
relates to, describes, is reasonably capable of being associated with, or would reasonably be linked,
directly or indirectly, with a particular individual or household or (ii) that is otherwise subject to a
Law relating to privacy or security of data or information (including if it constitutes “personal
information” or “personal data” or other equivalent term under any such Law).
(aaa) “Post-Closing Tax Period” means any taxable period beginning after the
Closing Date and the portion of any Straddle Period beginning on the day immediately following
the Closing Date.
(bbb) “Pre-Closing Tax Period” means any taxable period ending on or prior to
the Closing Date and the portion of any Straddle Period ending on and including the Closing Date.
(ccc) "Product Names” means any marks related to any of the product lines of the
Acquired Business, including any translations, transliterations, adaptations, derivations, acronyms,
variations, insignias, designations, or combinations of any the foregoing, or any other mark that is
reasonably likely to cause confusion with any of the foregoing.
(ddd) “Purchaser Group” means Purchaser (including any Designated Purchaser),
any Affiliate of Purchaser and each of their respective former, current or future Affiliates, officers,
directors, employees, partners, members, managers, agents, Advisors, successors or permitted
assigns.
(eee) “Related to the Acquired Business” means primarily used or primarily held
for use in connection to the development, marketing, distribution, operation or ownership of the
Acquired Business by Sellers as of the date of this Agreement.
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(fff) “Related to the Entire Business” means primarily used or primarily held for
use in or arising primarily out of the operation or conduct of the Business, or any portion thereof,
conducted by Sellers as of the date of this Agreement.
(ggg) “Sale Order” means the sale Order or Orders (i) approving this Agreement
and the terms and conditions hereof, including pursuant to sections 363 and 365 of the Bankruptcy
Code and (ii) approving and authorizing Sellers to consummate the Transactions, in form and
substance reasonably acceptable to the Parties.
(hhh) “Securities Act” means the Securities Act of 1933 and the rules and
regulations promulgated thereunder.
(iii) “Seller Combined Tax Return” means any combined, consolidated,
affiliated, or unitary Tax Return that includes a Seller or any of its Affiliates (other than an
Acquired Entity), on the one hand, and any Acquired Entity, on the other hand.
(jjj) “Seller Names” means any marks that include or are comprised of “Vyaire”
any translations, transliterations, adaptations, derivations, acronyms, variations, insignias,
designations, or combinations of any the foregoing, or any other mark that is reasonably likely to
cause confusion with any of the foregoing.
(kkk) “Seller Parties” means each Seller and its former, current, or future
Affiliates, officers, directors, employees, partners, members, equityholders, controlling or
controlled Persons, managers, agents, Advisors, successors or permitted assigns.
(lll) “Straddle Period” means any taxable period that includes but does not end
on the Closing Date.
(mmm)“Subsidiary” or “Subsidiaries” means, with respect to any Person, any
corporation, limited liability company or other entity of which a majority of the total voting power
of shares of stock or other Equity Interests entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees or other governing body or
Person thereof is at the time owned or controlled, directly or indirectly, by such Person or one or
more of the other Subsidiaries of such Person or a combination thereof or any partnership,
association or other business entity of which a majority of the partnership or other similar
ownership interest is at the time owned or controlled, directly or indirectly, by such Person or one
or more Subsidiaries of such Person or a combination thereof.
(nnn) “Tax” or “Taxes” means any federal, state, local, or non-U.S. tax of any
kind whatsoever, including any other income, gross receipts, capital stock, franchise, profits,
withholding, social security, unemployment, disability, real property, ad valorem/personal
property, stamp, excise, occupation, sales, use, transfer, value added, import, export, payroll,
national insurance, goods and services, alternative minimum or estimated tax or other similar fees,
charges or levies in the nature of a tax, including any interest, penalty, fine or addition thereto.
(ooo) “Tax Code” means the United States Internal Revenue Code of 1986, as
amended.
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(ppp) “Tax Return” means any return, claim for refund, report, form, statement or
information return relating to Taxes filed or required to be filed with a Governmental Body,
including any schedule or attachment thereto, and including any amendments thereof.
(qqq) “Transaction Agreements” means this Agreement and any other
agreements, instruments or documents entered into pursuant to this Agreement.
(rrr) “Transactions” means the transactions contemplated by this Agreement and
the other Transaction Agreements.
(sss) “Transfer Regulations” means (a) the Council of the European Union
Directive 2001/23/EC of March 21, 2001 on the approximation of the Laws of the member states
of the European Union relating to the safeguarding of employees’ rights in the event of transfers
of undertakings, businesses or parts of undertakings or businesses and/or local implementing
legislation both as amended from time to time; or (b) any similar or equivalent Laws applicable in
jurisdictions outside of the European Union providing for an automatic transfer of employment
including, in respect of Switzerland, Article 333, Federal Code of Obligations of 30 March 1911
(CO).
(ttt) “Transfer Regulations Employees” means each employee of Sellers who is
employed in the Business in Germany, Italy, Switzerland or the United Kingdom who is in scope
to transfer to Purchaser or an Affiliate of Purchased pursuant to the Transfer Regulations and who
is identified on the census of Business Employees.
(uuu) “Transferred Employee Records” means physical or electronic copies of all
personnel records (including those as required by applicable Law and those pertaining to
performance, training history, job experience and history, and for the three-year period
immediately preceding the Closing, compensation history) for the Transferred Employees, except
where (i) the transfer or disclosure of such records is prohibited by applicable Law or would
include medical records, or (ii) consent of the relevant employee is required by applicable Law but
not given.
(vvv) “Vents Auction” means that portion of the Auction with respect to the
Acquired Assets or the Business.
(www) “Willful Breach” means a material breach of this Agreement that is a
consequence of a deliberate act or a deliberate failure to act, in each case, regardless of whether
breaching was the conscious object of the act or failure to act.
Section 11.2 Index of Defined Terms.
Acquired Assets .......................................... 6 Agreement ................................................... 5
Acquired Entities ........................................ 7 Agreement Dispute ................................... 72
Acquired Entity Released Parties.............. 57 Allocation.................................................. 64
Acquired Intellectual Property .................... 7 Allocation Methodology ........................... 64
Acquired Lease ........................................... 6 Assigned Contracts ..................................... 6
Acquired Leased Real Property .................. 6 Assignment and Assumption Agreement.. 19
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Assumed Liabilities .................................. 10 Inbound IP Contracts ................................ 25
Assumed Taxes ......................................... 11 Indebtedness .............................................. 46
Backup Bidder .......................................... 43 Information Presentation ........................... 39
Bankruptcy Cases........................................ 5 Intended Tax Treatment ............................ 66
Bankruptcy Code ........................................ 5 Intercompany Liability.............................. 59
Bankruptcy Court ........................................ 5 IP Assignment Agreement ........................ 19
Business Insurance Policies ...................... 38 Leased Real Property ................................ 24
Cash Payment............................................ 18 Material Contract ...................................... 25
Chosen Courts ........................................... 72 MDD ......................................................... 27
Closing ...................................................... 19 MDR ......................................................... 27
Closing Date Payment............................... 18 Non-Debtors ................................................ 5
Closing Date.............................................. 19 Non-Recourse Person................................ 69
Contributor ................................................ 32 Outbound IP Contracts.............................. 25
Coronavirus ............................................... 79 Outside Date.............................................. 62
COVID-19................................................. 79 Parties.......................................................... 5
Cure Cost Cap ........................................... 10 Party ............................................................ 5
Cure Costs ................................................. 10 Permits ...................................................... 27
Dataroom................................................... 39 PJT Partners .............................................. 39
Deposit ...................................................... 18 Projections................................................. 55
Designated Purchaser ................................ 69 Purchase Price ........................................... 17
Disputed Contract ..................................... 16 Purchaser ..................................................... 5
Effect ......................................................... 79 Purchaser Plans ......................................... 51
Enforceability Exceptions ......................... 22 Purchaser Separated Contract ................... 15
Environmental Permits.............................. 31 Released Claims ........................................ 57
Escrow Agent ............................................ 18 Released Parties ........................................ 57
Excluded Assets .......................................... 8 Restructuring Transactions ....................... 59
Excluded Contracts ..................................... 8 Safety Notices ........................................... 30
Excluded Insurance Policies ....................... 9 Seller ........................................................... 5
Excluded Lease ........................................... 9 Seller Credit Support Obligations ............. 58
Excluded Leased Real Property .................. 9 Seller Intellectual Property Rights ............ 31
Excluded Liabilities .................................. 11 Seller Released Parties .............................. 57
Express Representations ........................... 39 Sellers .......................................................... 5
FDA........................................................... 28 Successful Bidder...................................... 43
FDCA ........................................................ 27 Tax Proceeding ......................................... 65
FDI ............................................................ 22 Transfer Offer ........................................... 50
Financial Statements ................................. 24 Transfer Taxes .......................................... 64
Foreign Competition Laws ....................... 23 Transferred Claims...................................... 8
Fundamental Representations ................... 61 Transferred Employees. ............................ 50
GDPR ........................................................ 77 Transferred Subsidiaries ............................. 7
Guaranteed Obligations ............................ 56 Transition Services Agreement ................. 19
Guarantor .................................................... 5 Vyaire .......................................................... 5
Health Care Laws...................................... 28 WARN Act................................................ 13
Section 11.3 Rules of Interpretation. Unless otherwise expressly provided in this
Agreement, the following will apply to this Agreement, the Schedules and any other certificate,
instrument, agreement or other document contemplated hereby or delivered hereunder.
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(a) The terms “hereof,” “herein” and “hereunder” and terms of similar import
are references to this Agreement as a whole and not to any particular provision of this Agreement.
section, clause, schedule and exhibit references contained in this Agreement are references to
sections, clauses, schedules and exhibits in or to this Agreement, unless otherwise specified. All
Exhibits and Schedules annexed hereto or referred to herein are hereby incorporated in and made
a part of this Agreement as if set forth in full herein. Any capitalized terms used in any Schedule
or Exhibit but not otherwise defined therein shall be defined as set forth in this Agreement.
(b) Whenever the words “include,” “includes” or “including” are used in this
Agreement, they will be deemed to be followed by the words “without limitation.” Where the
context permits, the use of the term “or” will be equivalent to the use of the term “and/or.”
(c) The words “to the extent” shall mean “the degree by which” and not simply
“if.”
(d) When calculating the period of time before which, within which or
following which any act is to be done or step taken pursuant to this Agreement, the date that is the
reference date in calculating such period will be excluded. If the last day of such period is a day
other than a Business Day, the period in question will end on the next succeeding Business Day.
(e) Words denoting any gender will include all genders, including the neutral
gender. Where a word is defined herein, references to the singular will include references to the
plural and vice versa.
(f) The word “will” will be construed to have the same meaning and effect as
the word “shall”. The words “shall,” “will,” or “agree(s)” are mandatory, and “may” is permissive.
(g) All references to “$” and dollars will be deemed to refer to United States
currency unless otherwise specifically provided.
(h) All references to a day or days will be deemed to refer to a calendar day or
calendar days, as applicable, unless otherwise specifically provided.
(i) Any document or item will be deemed “delivered,” “provided” or “made
available” by Sellers, within the meaning of this Agreement if such document or item is
(i) included in the Dataroom at least [48 hours] prior to the execution of this Agreement,
(ii) actually delivered or provided to Purchaser or any of Purchaser’s Advisors or (iii) made
available upon request, including at Sellers’ offices.
(j) Any reference to any agreement or Contract will be a reference to such
agreement or Contract, as amended, modified, supplemented or waived.
(k) Any reference to any particular Bankruptcy Code or Tax Code section or
any Law will be interpreted to include any amendment to, revision of or successor to that section
or Law regardless of how it is numbered or classified; provided that, for the purposes of the
representations and warranties set forth herein, with respect to any violation of or non- compliance
with, or alleged violation of or non-compliance, with any Bankruptcy Code or Tax Code section
or Law, the reference to such Bankruptcy Code or Tax Code section or Law means such
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Bankruptcy Code or Tax Code section or Law as in effect at the time of such violation or non-
compliance or alleged violation or non-compliance.
(l) A reference to any Party to this Agreement or any other agreement or
document shall include such Party’s successors and assigns, but only if such successors and assigns
are not prohibited by this Agreement.
(m) A reference to a Person in a particular capacity excludes such Person in any
other capacity or individually.
[Signature pages follow.]
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Exhibit B
Proposed Sale Order
[To Be Filed Separately]
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