Vyaire - Notice of Sale Closing (Ventilation Assets to Zoll)
- Date
- 2024-10-11
Summary
Exhibit 1 to a notice of sale closing in the Chapter 11 cases of Vyaire Medical, Inc., et al., Case No. 24-11217 (BLS), filed October 11, 2024 as Doc 626-1: the First Amendment to the Asset Purchase Agreement between ZOLL Medical Corporation, as purchaser, and Vyaire Holding Company and its subsidiaries, as sellers. Dated as of October 11, 2024, it amends the Purchase Agreement dated September 1, 2024. The amendment adds acquired assets including knowledge portals, ERP systems and AirLife Preference Claims, revises excluded assets and assumed liabilities, and sets a Cure Cost Cap of $5,000,000. It restates the purchase price to include a cash payment of $45,791,471.50 and an additional cash payment of $7,900,000, and adds patent licenses from Vyaire Medical GmbH and Intermed. The document ends with signature pages for the seller entities.
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Case 24-11217-BLS Doc 626-1 Filed 10/11/24 Page 1 of 20
Exhibit 1
(First Amendment to Zoll APA)
Case 24-11217-BLS Doc 626-1 Filed 10/11/24 Page 2 of 20
FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT, dated as of October 11,
2024 (this “Amendment”), is being entered into by and among ZOLL Medical Corporation, a
Massachusetts corporation (the “Purchaser”), 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 to the Purchase
Agreement (together with Vyaire, each a “Seller” and collectively “Sellers”). The Purchaser and the Sellers
are collectively referred to herein as the “Parties”, and each, a “Party”. Capitalized terms used in this
Amendment that are not otherwise defined herein shall have the meanings given to them in the Purchase
Agreement.
RECITALS
A. Purchaser and the Sellers are party to that certain Asset Purchase Agreement, dated
September 1, 2024 (the “Purchase Agreement”).
B. Pursuant to Section 10.5 of the Purchase Agreement, the Parties desire to amend the
Purchase Agreement as set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing Recitals, which are incorporated herein by
this reference, and the mutual covenants and agreements set forth herein, the Parties agree to amend the
Purchase Agreement as set forth below.
1. Amendment to Purchase Agreement.
(a) Acquired Assets (Portals). A new subsection 1.1(q) is hereby added to the Purchase
Agreement to read in its entirety as follows:
“(q) each of the Respiratory Knowledge Portal, the Clinical Data Platform, the
domain name Vyaireanalytics.com and access credentials for any source code repositories
containing source code, files or information related to any of the Acquired Products.”
(b) Acquired Assets (ERP Systems). A new subsection 1.1(r) is hereby added to the
Purchase Agreement to read in its entirety as follows:
“(r) (i) the “Point Man” ERP system of the Business and all associated
hardware in which such system runs and (ii) “Made2Manage” ERP system of the Business.”
(c) Acquired Assets (Preference Claims). A new subsection 1.1(s) is hereby added to
the Purchase Agreement to read in its entirety as follows:
“(s) all preference or avoidance claims or actions arising under the Bankruptcy
Code or applicable Law, including claims pursuant to chapter 5 of the Bankruptcy Code and all
Avoidance Actions, in each case solely as such claims relate to SunMed Group Holdings, LLC
d/b/a AirLife (“AirLife”) or any of its Affiliates (the “AirLife Preference Claims”).”
(d) Excluded Assets (Preference Claims). Subsection 1.2(i) is hereby amended and
restated to read in its entirety as follows:
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(i) “(i) all preference or avoidance claims or actions arising under the
Bankruptcy Code or applicable Law (other than the AirLife Preference Claims), (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.”
(e) Excluded Assets (Domain Names). Subsection 1.2(r) to the Purchase Agreement
is hereby amended and restated to read in its entirety as follows:
“(r) Internet domain names that include or incorporate Seller Names (other
than the domain Vyaireanalytics.com).”
(f) Excluded Assets (Bird Blender). A new subsection 1.2(s) is hereby added to the
Purchase Agreement to read in its entirety as follows:
“(s) (i) know how, trade secrets, confidential or proprietary business or
technical information, drawings, schematics or technical data; (ii) supplier information, (iii) sales
history on parts and finished goods, (iv) part numbers, and (v) blender customer installed base, in
each case, solely as such items relate to the “blender” products line of the Business marketed under
the “Bird” brand and exist as of the Closing Date (the “Bird Blender Know-How”).”
(g) Assumed Liabilities (Accounts Payable). Schedule 1.3(e) to the Purchaser
Agreement is hereby deleted in its entirety, and subsection 1.3(e) to the Purchase Agreement is hereby
amended and restated to read in its entirety as follows:
“(e) [Reserved].”
(h) Assumed Liabilities (Transferred Employees). Subsection 1.3(i) to the Purchase
Agreement is hereby amended and restated to read in its entirety as follows:
“(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.”
(i) Assumed Liabilities. Subsection 1.3(j) to the Purchase Agreement is hereby
amended and restated to read in its entirety as follows:
“(j) [Reserved].”
(j) Assumed Liabilities (Accounts Payable Outside US). Schedule 1.3(k) is hereby
added to the Purchase Agreement in the form attached hereto as Attachment E, and subsection 1.3(k) to the
Purchase Agreement is hereby amended and restated to read in its entirety as follows:
“(k) Liabilities relating to the non-Tax related accounts payable solely to the extent set
forth on Schedule 1.3(k).”
(k) Cure Cost Cap. Section 1.3(b) to the Purchase Agreement is hereby amended and
restated in its entirety to read as follows:
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“(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, which amount shall be deemed to include an
amount equal to no more than $3,000,000 to the extent paid by Purchaser to AirLife pursuant to
the Manufacturing Services Agreement (the “AirLife MSA”) dated as of October 11, 2024 by and
between Purchaser and AirLife (the “Cure Cost Cap”), with Seller to pay any necessary Cure Costs
in excess of the Cure Cost Cap.”
(l) Consideration; Payment.
(i) Section 2.1(a) to the Purchase Agreement is hereby amended and restated
in its entirety to read as follows:
“(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; (ii) a cash payment of $45,791,471.50 (the
“Cash Payment”); and (iii) an additional cash payment of $7,900,000 (the “MIM Cash Payment”),
which MIM Cash Payment will be immediately contributed by Sellers to MIM Medizinische
Instrumente & Monitoring GmbH to satisfy outstanding Liabilities; provided that, for
administrative convenience of the Parties, Purchaser shall wire the MIM Cash Payment to MIM
Medizinische Instrumente & Monitoring GmbH directly pursuant to wire instructions provided by
Sellers prior to Closing, and such wire shall be deemed to satisfy the MIM Cash Payment amount
owed by Purchaser hereunder.”
(ii) The following sentence is hereby added as the last sentence to Section
2.1(b) to the Purchase Agreement:
“For purposes of the Closing, the Parties have assumed that the Acquired Cash
Amount equals $396,881.39 (the “Deemed Acquired Cash Amount”). To the extent the actual
Acquired Cash Amount (calculated as otherwise provided by this Agreement) is greater or lesser
than the Deemed Acquired Cash Amount by $10,000 or more, then if greater, Purchaser shall
promptly pay the Seller the difference between the actual Acquired Cash Amount and the Deemed
Cash Amount and if lesser, Seller shall promptly pay the Purchaser the difference between the
actual the Deemed Cash Amount and the Acquired Cash Amount.”
(m) K+N Payment. Sellers and Purchaser have entered, or on the date of this
Amendment are entering into, a letter agreement, (the “K+N Letter Agreement”) by and between Sellers,
Kuehne + Nagel Inc. (“K+N”), and Purchaser, pursuant to which, among other things, Sellers shall make
the Settlement Payment (as defined in the K+N Letter Agreement) to K+N. For administrative convenience
of the Parties, Sellers hereby direct Purchaser to, and Purchaser shall, wire K+N directly the Settlement
Payment at the Closing, and such wire shall be deemed to satisfy such portion of the Closing Date Payment
equal to the Settlement Payment.
(n) Closing Deliveries by Sellers (Vyaire Medical GmbH and Intermed Licenses).
Subsection 2.4(j) to the Purchase Agreement is hereby amended and restated to read in its entirety as
follows:
“(j) license agreements (each, a “Patent License”), duly executed by each of
Vyaire Medical GmbH and Intermed Equipamento Medico Hospitalar Ltda., providing for the
following:
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(i) with respect to Vyaire Medical GmbH: “Effective as of the
Closing Date and continuing until the date on which the last Licensed
Patent expires, Vyaire Medical GmbH (“Licensor”) hereby grants to
Purchaser under and to U.S. Patent No. 8402969, and any continuations,
divisions, continuations in part, reissues, reexaminations, and foreign
counterparts and equivalents of the foregoing (collectively, the “Licensed
Patents”), a worldwide, non-exclusive, irrevocable, sublicenseable,
transferable, fully paid-up, and royalty-free license, limited to use in the
manufacturing, import, and sale of medical ventilators and associated
services and consumables (the “Ventilator Business”), (a) to make, have
made, use, import, sell, and offer for sale, in each case, any product, and
(b) to practice any methods that are covered by, embody, or would
otherwise infringe any Licensed Patent. Prior written notice to Licensor is
required for any sublicense, assignment or transfer of the license granted
herein, including in the event of any change in control of Purchaser. If
Purchaser or its sublicensees, successors, or assigns to this limited license,
conceives, makes, or reduces to practice any modification of, or
improvement or enhancement to, any invention or technology claimed in,
or that is the subject of, the Licensed Patents, all right, title and interest
therein, thereto and thereunder, insofar as they relate solely to the
Ventilator Business, will, as between Licensor, on the one hand, and
Purchaser or its applicable sublicensee, successor, or assigns to this limited
license, on the other hand, be owned by Purchaser or its applicable
sublicensee, successor, or assign or the designee thereof. The foregoing
Patent License terms will run with the Licensed Patents, and Licensor will
ensure that any assignee or licensee of any Licensed Patent shall agree in
writing, prior to such assignment or licensing, to be made subject to the
licenses and other rights granted under this Patent License. Nothing in this
provision imposes an obligation on the part of Licensor to maintain or
enforce any of the Licensed Patents.”
and
(ii) with respect to Intermed Equipamento Medico Hospitalar Ltda.:
“Effective as of the Closing Date and continuing until the date on which
the last Licensed Patent expires, Intermed Equipamento Medico
Hospitalar Ltda. (“Licensor”) hereby grants to Purchaser under and to U.S.
Patent Number 8,186,344, granted May 29, 2012; U.S. Patent Number
7,798,016, granted September 21, 2010; Brazil patent application number
PI07050917, filed November 1, 2007; Brazil patent number PI0703836,
granted July 3, 2018; Brazil patent number PI0306282, granted February
18, 2015, and any continuations, divisions, continuations in part, reissues,
reexaminations, and foreign counterparts and equivalents of the foregoing
(collectively, the “Licensed Patents”), a worldwide, non-exclusive,
irrevocable, sublicenseable, transferable, fully paid-up, and royalty-free
license, limited to use in the manufacturing, import, and sale of medical
ventilators and associated services and consumables (the “Ventilator
Business”),, (a) to make, have made, use, import, sell, and offer for sale,
in each case, any product, and (b) to practice any methods that are covered
by, embody, or would otherwise infringe any Licensed Patent. If Purchaser
or its sublicensees, successors, or assigns to this limited license conceives,
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makes, or reduces to practice any modification of, or improvement or
enhancement to, any invention or technology claimed in, or that is the
subject of, the Licensed Patents, all right, title and interest therein, thereto
and thereunder, insofar as they relate to the Ventilator Business, will, as
between Licensor, on the one hand, and Purchaser or its applicable
sublicensee, successor, or assigns to this limited license, on the other hand,
be owned by Purchaser or its applicable sublicensee, successor, or assign
or the designee thereof. The foregoing Patent License terms will run with
the Licensed Patents, and Licensor will ensure that any assignee or
licensee of any Licensed Patent shall agree in writing, prior to such
assignment or licensing, to be made subject to the licenses and other rights
granted under this Patent License. Nothing in this provision imposes an
obligation on the part of Licensor to maintain or enforce any of the
Licensed Patents. Licensor represents and warrants that it owns all right,
title, and interest in and to the Licensed Patents, free and clear of any
Encumbrances (other than Permitted Encumbrances), and has the right to
grant the licenses and rights granted to Purchaser in this Patent License.”
(o) Title to Properties. A new subsection 3.6(f) is hereby added to the Purchase
Agreement to read in its entirety as follows:
“(f) Vyaire Medical GmbH owns all right, title, and interest in and to
US patent number 8402969, and any continuations, divisions,
continuations in part, reissues, reexaminations, and foreign counterparts
and equivalents of the foregoing (collectively, the “GmbH Patents”), free
and clear of any Encumbrances (other than Permitted Encumbrances and
the title defects insofar as inventor assignment agreements from Stephan
Gabriel, Ellis Whitehead, and Harald Genger have not been executed and
recorded against the GmbH Patents in the United States Patent and
Trademark Office), and has the right to grant the licenses and rights
granted to Purchaser in the Vyaire Medical GmbH Patent License of
Section 2.4(j).”
(p) AirLife Payment. A new Section 4.12 is hereby added to the Purchase Agreement
to read in its entirety as follows:
“AirLife Payment. As of the Closing Date, Purchaser has paid AirLife
$3,000,000 pursuant to the AirLife MSA.”
(q) Section 338(g) Elections.
(i) Section 9.2 to the Purchase Agreement is hereby amended and restated in
its entirety to read as follows:
“For U.S. federal and applicable state, local and non-U.S. income (or applicable
non-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 or applicable non-U.S. income (or applicable non-income)
Tax purposes) among the Acquired Assets and the assets deemed acquired as a result of
the Section 338(g) Elections for the Acquired Entities made pursuant to Section 9.4(c) in
accordance with the methodology that shall be mutually agreed by the Parties prior to the
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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 or applicable non-
U.S. income (or applicable non-income) Tax purposes) among the Acquired Assets and the
assets deemed acquired as a result of the Section 338(g) Elections for the Acquired Entities
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 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” that is
final within the meaning of Section 1313(a) of the Tax Code (or other similar non-U.S. Tax
Law).”
(ii) Section 9.4(b) to the Purchase Agreement is hereby amended and restated
in its entirety to read as follows:
“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.”
(iii) A new subsection 9.4(c) is hereby added to the Purchase Agreement to
read in its entirety as follows:
“Tax Forms and 338(g) Elections. “Within one (1) Business Day of Closing,
Purchaser (or its applicable Affiliate) shall (a) execute the forms attached hereto as
Attachment D (the “8023 Forms”), (b) file the 8023 Forms with the IRS, and (c) promptly
provide to Seller receipt confirming that such filings have been made with the IRS.
Purchaser, Seller, and their respective Affiliates shall reasonably cooperate with each other
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to take any other actions necessary and appropriate, including filing such additional forms
(including IRS Form 8883), returns, elections, schedules and other documents as may be
required to effect and preserve elections pursuant to Section 338(g) of the Tax Code and
the Treasury Regulations promulgated pursuant thereto and any corresponding elections
under U.S. state or local law with respect to each Acquired Entity (the “Section 338(g)
Elections”), and the Parties shall prepare all Tax Returns, Tax records, and Tax filings in a
manner consistent with such treatment and shall not take any position inconsistent
therewith, unless otherwise required by a “determination” within the meaning of Section
1313(a) of the Tax Code (or other similar non-U.S. Tax Law).”
(r) Closing Deliveries by Purchaser (Bird Products Patent License). A new subsection
2.5(h) is hereby added to the Purchase Agreement to read in its entirety as follows:
“(h) a license agreement, duly executed by Purchaser, providing for the
following:
Effective as of the Closing Date and continuing until the date on which
U.S. Patent No. 7984712, granted July 26, 2011 (the “Bird Patent”)
expires, Purchaser hereby grants to Bird Products Corporation under and
to the Bird Patent a worldwide, non-exclusive, irrevocable,
sublicensable, transferable, fully paid-up, and royalty-free license (a) to
make, have made, use, import, sell, and offer for sale, in each case, any
product, and (b) to practice any methods that are covered by, embody, or
would otherwise infringe the Bird Patent.”
(s) Bird Blender Know-How. A new Subsection 2.4(k) to the Purchase Agreement is
hereby added to the Purchase Agreement to read in its entirety as follows:
“(k) a license agreement, duly executed by Bird Products Corporation,
providing that, effective as of the Closing Date, Bird Products Corporation hereby grants to
Purchaser a worldwide, non-exclusive, irrevocable, sublicensable, transferable, fully paid-up, and
royalty-free license to the Bird Blender Know-How, including the right to use, possess, and exploit
the Bird Blender Know-How for any purpose.”
(t) Employee Matters. The following sentence is hereby added as the last sentence to
Section 6.3(a):
“Notwithstanding the foregoing, Sellers hereby agree to not terminate or dismiss
any Transferred Employee in the United States until 11:59 pm ET on Sunday October 13, 2024,
such that all such Transferred Employees shall begin employment with Purchaser or an Affiliate of
Purchaser effective as of October 14, 2024.”
(u) Seller Names. The following sentence is hereby added as the last sentence to
Section 6.21:
“Notwithstanding the foregoing, Sellers hereby grant to Purchaser a perpetual,
non-exclusive, worldwide, irrevocable, sublicensable, transferable, fully paid-up, and royalty-free
license to use trademarks in connection with the use of the domain name Vyaireanalytics.com.”
(v) Covenants and Agreements. A new Section 6.24 to the Purchase Agreement is
hereby added to the Purchase Agreement to read in its entirety as follows:
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“Section 6.24 Contract Assumption and Rejection. For thirty (30) days following
Closing, Sellers shall not file any motion to or otherwise reject any of the Contracts set forth on
Schedule 6.24 without the prior written approval of Purchaser. If within such thirty (30) day period,
Purchaser informs Sellers in writing of its intent to assume any of the Contracts on Schedule 6.24,
Sellers shall promptly file with the Court a motion to assume and assign such Contract or Contracts
to Purchaser. Purchaser shall bear, and reimburse Sellers for, costs incurred by Sellers from the
Closing Date through such date (as applicable) as either Purchaser provides notice allowing Sellers
to reject such Contracts or the Bankruptcy Courts enters of an Order authorizing the assumption
and assignment of such Contract(s).”
(w) IMT Liabilities. A new Section 6.25 to the Purchase Agreement is hereby added
to the Purchase Agreement to read in its entirety as follows:
“Section 6.25 IMT Liabilities. As of the Closing Date, the total aggregate
outstanding monetary Liabilities under (i) that certain Share Purchase Agreement dated April 24,
2018, by and among Vyaire Medical Holdings B.V. as purchaser, Vyaire Medical as guarantor, and
Jakob Dascher, Christian Rupert Buchel and Henri Hermanus Friberg as the sellers, as amended
(the “IMT SPA”), together with (ii) that certain Research & Development Agreement, dated April
24, 2018, by and between IMT Information Management Technology AG and imtmedical ag, as
amended (the “IMT R&D Agreement”), are in an aggregate amount equal to CHF 5,751246 (or
US$6,728,958 (assuming an exchange rate of 1.17 USD to CHF).”
2. Amendment to Schedule 1.2(p). Item 4 to Schedule 1.2(p) of the Purchase Agreement is
hereby amended to add a new Item 4.12 as follows:
“4.12 RDx failure lab analysis equipment and materials.”
3. Amendment to Schedule 1.6. Schedule 1.6 of the Purchase Agreement is hereby amended
and restated in its entirety as set forth on Attachment A hereto.
4. Amendment to Schedule 3.11(a). Schedule 3.11(a) of the Purchase Agreement is hereby
amended and restated in its entirety as set forth on Attachment B hereto.
5. Amendment to Definitions. Section 11.1 “Certain Definitions” of the Purchase Agreement
is amended to include the following definitions in alphabetical order:
“Clinical Data Platform” means the software platform operated by Sellers and/or their
Subsidiaries in connection with the Business for managing clinical trials, storing clinical
data, and analyzing the clinical data, including all underlying software, code and data for
such platform.
“Respiratory Knowledge Portal” means the software platform operated by Sellers and/or
their Subsidiaries in connection with the Business for managing patient respiratory care,
with data tracking and analytics for improving quality of respiratory care and clinical
documentation, including all underlying software, code and data for such platform and
patents related primarily to such platform.
6. Allocation Methodology. Attachment C hereto sets forth the Allocation Methodology
mutually agreed by the Parties pursuant to Section 9.2 of the Purchase Agreement.
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7. Travel Reimbursement. Purchaser agrees to reimburse Sellers and their Subsidiaries with
respect to all Transferred Employees who are requested to attend a welcome event with Purchaser occurring
the day following Closing for reasonable and documented out-of-pocket travel expenses incurred by any
Seller or any of its Subsidiaries and paid to or on behalf of any such Transferred Employees attending such
event.
8. Palm Springs. Purchaser shall be responsible for rent payable by Sellers with respect to
the month of October 2024 for the Business’s Palm Springs, California facility (subject to Section 2.1(a) of
the Purchase Agreement).
9. Payroll Transition. The Parties agree the Sellers shall process and pay all payroll amounts
incurred as of and on the Closing Date for all Transferred Employees. Purchaser shall begin to process and
pay all payroll amounts beginning the day following the Closing Date for all Transferred Employees. This
Section 9 shall not modify any Assumed Liabilities.
10. “Tenders”.
(a) Brazil: From time to time following the Closing through August 1, 2025, Intermed
Equipamento Medico Hospitalar Ltda, a Subsidiary of Sellers (“Intermed”), may submit purchase order(s)
for an aggregate across all such purchase orders of up to 80 “Fabian” devices of the Business to fulfill its
“tender” obligations to the State of Bahia, Brazil and up to 15 “Bellavista” devices under other “tender”
obligations in Brazil, and Purchaser will use commercially reasonable efforts, assuming the existence and
availability of inventory, to timely fulfill such purchase order(s) on Purchaser’s standard terms. Intermed
shall pay to ZOLL a purchase price for any such devices equal the price to be paid to Intermed for such
device under the applicable tender.
(b) Italy. The Parties will cooperate in good faith to finalize the terms of and enter
into a “net economic benefit” or “NEB” agreement, based on and consistent with the guidelines set forth
on Attachment F hereto, pursuant to which Purchaser will fulfil “tender” obligations of Vyaire S.r.l. in
consideration for payments to Purchaser or its designee of the net revenue on account of such tenders. Such
agreement shall terminate on or before March 31, 2025. From the Closing until the effectiveness of such
agreement (which such agreement may address retroactively the Parties’ interactions during such period),
the Parties will reasonably cooperate in a manner consistent with the foregoing.
11. Effect on Amendment. This Amendment shall constitute and shall be interpreted as a
written amendment to the Purchase Agreement, which shall amend the Purchase Agreement in accordance
with Section 10.5 of the Purchase Agreement. In the event of a conflict between the terms of the Purchase
Agreement and this Amendment, the terms of this Amendment shall control. Except as otherwise amended
by this Amendment, all terms and conditions of the Purchase Agreement shall remain in full force and
effect. This Amendment shall be deemed incorporated into, and form a part of, the Purchase Agreement
and have the same legal validity and effect as the Purchase Agreement. All references to the Purchase
Agreement in this Amendment and in any ancillary agreements or documents delivered in connection with
the Purchase Agreement shall hereafter refer to the Purchase Agreement as amended by this Amendment,
and as it may hereafter be further amended or restated. Each reference in the Purchase Agreement to “this
Agreement,” “herein,” “hereof,” “hereunder” or words of similar import shall hereafter be deemed to refer
to the Purchase Agreement as amended hereby (except those references in the Purchase Agreement to the
“date hereof” or “date of this Agreement” or words or phrases of similar import shall continue to mean
September 1, 2024).
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12. Additional Provisions. The provisions set forth in Article X (Miscellaneous) of the
Purchase Agreement are incorporated herein by reference as if set forth in full herein and shall apply to the
terms and provisions of this Amendment and the Parties mutatis mutandis as if full set forth herein.
[SIGNATURE PAGE FOLLOWS]
10
308541487 v12
Case 24-11217-BLS Doc 626-1 Filed 10/11/24 Page 12 of 20
IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed as of the
day and year first above written.
PURCHASER:
ZOLL MEDICAL CORPORATION
By:
Name: Jonathan Rennert
Its: Chief Executive Officer
[Signature Page to Asset Purchase Agreement Amendment]
Case 24-11217-BLS Doc 626-1 Filed 10/11/24 Page 13 of 20
SELLERS
VYAIRE HOLDING COMPANY
By:
Name: John Bibb
Its: President and Chief Executive
Officer, Chief Legal Officer,
and Human Resources
[Signature Page to Asset Purchase Agreement Amendment]
Case 24-11217-BLS Doc 626-1 Filed 10/11/24 Page 14 of 20
VYAIRE MEDICAL, INC.
By:
Name: John Bibb
Its: President, Group Chief Executive
Officer
[Signature Page to Asset Purchase Agreement Amendment]
Case 24-11217-BLS Doc 626-1 Filed 10/11/24 Page 15 of 20
BIRD PRODUCTS CORPORATION
By:
Name: Vikram Bajaj
Its: Group Chief Financial Officer
SENSORMEDICS CORPORATION
By:
Name: Vikram Bajaj
Its: Group Chief Financial Officer
VYAIRE MEDICAL 202, INC.
By:
Name: Vikram Bajaj
Its: Group Chief Financial Officer
VYAIRE MEDICAL 203, INC.
By:
Name: Vikram Bajaj
Its: Group Chief Financial Officer
VYAIRE MEDICAL 205, INC.
By:
Name: Vikram Bajaj
Its: Group Chief Financial Officer
VYAIRE MEDICAL 206, INC.
By:
Name: Vikram Bajaj
Its: Group Chief Financial Officer
[Signature Page to Asset Purchase Agreement Amendment]
Case 24-11217-BLS Doc 626-1 Filed 10/11/24 Page 16 of 20
VYAIRE MEDICAL 211, INC.
By:
Name: Vikram Bajaj
Its: Group Chief Financial Officer
VYAIRE MEDICAL CAPITAL LLC
By: Vyaire Medical LLC
Its: Sole Member and Manager
By:
Name: Vikram Bajaj
Its: Group Chief Financial Officer
VYAIRE MEDICAL CONSUMABLES
LLC
By: Vyaire Medical LLC
Its: Sole Member and Manager
By:
Name: Vikram Bajaj
Its: Group Chief Financial Officer
VYAIRE MEDICAL PAYROLL LLC
By: Vyaire Medical LLC
Its: Sole Member and Manager
By:
Name: Vikram Bajaj
Its: Group Chief Financial Officer
[Signature Page to Asset Purchase Agreement Amendment]
Case 24-11217-BLS Doc 626-1 Filed 10/11/24 Page 17 of 20
BREATHE US HOLDCO, INC.
By: ________________________________
Name: Vikram Bajaj
Title: Group Chief Financial Officer
BREATHE US HOLDINGS LP
By: ________________________________
Name: Vikram Bajaj
Title: Group Chief Financial Officer
EME MEDICAL, INC.
By: ________________________________
Name: Vikram Bajaj
Title: Group Chief Financial Officer
REVOLUTIONARY MEDICAL
DEVICES, INC.
By: ________________________________
Name: Vikram Bajaj
Title: Group Chief Financial Officer
VIASYS HOLDINGS INC.
By: ________________________________
Name: Vikram Bajaj
Title: Group Chief Financial Officer
VM FINANCE SUB, LLC
By: ________________________________
Name: Vikram Bajaj
Title: Group Chief Financial Officer
[Signature Page to Asset Purchase Agreement Amendment]
Case 24-11217-BLS Doc 626-1 Filed 10/11/24 Page 18 of 20
VYAIRE COMPANY
By: ________________________________
Name: Vikram Bajaj
Title: Group Chief Financial Officer
VYAIRE FINANCIAL HOLDINGS LLC
By: ________________________________
Name: Vikram Bajaj
Title: Group Chief Financial Officer
VYAIRE MEDICAL BR LLC
By: ________________________________
Name: Vikram Bajaj
Title: Group Chief Financial Officer
VYAIRE MEDICAL INTERNATIONAL
LLC
By: ________________________________
Name: Vikram Bajaj
Title: Group Chief Financial Officer
VYAIRE MEDICAL LLC
By: ________________________________
Name: Vikram Bajaj
Title: Group Chief Financial Officer
[Signature Page to Asset Purchase Agreement Amendment]
Case 24-11217-BLS Doc 626-1 Filed 10/11/24 Page 19 of 20
VYAIRE RECEIVABLES LLC
By: ________________________________
Name: Vikram Bajaj
Title: Group Chief Financial Officer
VYAIRE RESPIRATORY
DIAGNOSTICS LLC
By: ________________________________
Name: Vikram Bajaj
Title: Group Chief Financial Officer
VYAIRE TSR MIDCO, LLC
By: ________________________________
Name: Vikram Bajaj
Title: Group Chief Financial Officer
VYAIR TSR SUB, LLC
By: ________________________________
Name: Vikram Bajaj
Title: Group Chief Financial Officer
[Signature Page to Asset Purchase Agreement Amendment]
Case 24-11217-BLS Doc 626-1 Filed 10/11/24 Page 20 of 20
VYAIRE FINANCE B.V.
By: ________________________________
Name: Rachel Lisenby
Title: Director
[Signature Page to Asset Purchase Agreement Amendment]
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