Vyaire - Notice of Filing of TSA Contracts
- Date
- 2024-11-22
Summary
Doc 789-1, filed November 22, 2024 in the jointly administered Chapter 11 cases of Vyaire Medical, Case No. 24-11217 (BLS), in the U.S. Bankruptcy Court for the District of Delaware, labeled Exhibit 1 (Trudell TSA). It contains a Transition Services Agreement dated November 12, 2024 between Vyaire Holding Company as seller and Trudell Medical Limited as purchaser, entered under an Asset Purchase Agreement dated September 5, 2024. The agreement provides for the seller to supply Business Services listed in Schedule A and the purchaser to supply Reverse Services listed in Schedule B. It sets terms on bankruptcy dispositions, service standards, third-party consents, transition managers and fees charged at cost with no mark-up. The 37-page document closes with service schedules covering areas such as cybersecurity insurance, TSA oversight and payroll processing.
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Case 24-11217-BLS Doc 789-1 Filed 11/22/24 Page 1 of 37
Exhibit 1
(TRUDELL TSA)
Case 24-11217-BLS Doc 789-1 Filed 11/22/24 Page 2 of 37
Execution Version
CONFIDENTIAL
TRANSITION SERVICES AGREEMENT
THIS TRANSITION SERVICES AGREEMENT (this “Agreement”) is entered into as of
November 12, 2024 (the “Effective Date”), by and between Vyaire Holding Company, a
Delaware corporation (“Seller”), and Trudell Medical Limited, an Ontario corporation
(“Purchaser”) (Seller and Purchaser are individually each a “Party” and collectively, the “Parties”).
Capitalized terms used and not otherwise defined herein shall have the meanings assigned to them
in that certain Asset Purchase Agreement, dated as of September 5, 2024, by and among Purchaser,
Seller, and the subsidiaries of Seller that are indicated on the signature pages attached thereto
(together with Seller, “Vyaire”) and the other parties thereto (as such may be amended from time
to time, the “Purchase Agreement”).
RECITALS
WHEREAS, as of the date hereof, Purchaser has purchased the Acquired Assets and
assumed the Assumed Liabilities from Vyaire, and Vyaire has sold, conveyed, assigned, and
transferred 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 the Purchase Agreement;
WHEREAS, on June 9, 2024, Seller, together with certain of its Affiliates, filed 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 (BLS) (the “Bankruptcy Cases”);
WHEREAS, in order to provide for an orderly and seamless transition of operation of, and
service continuity to, the Business from Seller to Purchaser, each Party will provide or cause its
Affiliates to provide to the other Party, with certain services for specified periods following the
Effective Date, all in accordance with and subject to the terms and conditions set forth herein (the
Party acting in its capacity as the provider of services is referred to herein as “Provider”, and the
Party acting in receipt of such services is referred to herein as “Recipient”, as applicable); and
WHEREAS, Purchaser acknowledges that Seller has entered into an agreement to provide
similar services to the purchaser of its ventilator business (the “Ventilator Purchaser”). In addition,
Seller intends that such Ventilator Purchaser may assume the obligation to provide certain
Business Services (as defined herein) to Purchaser.
NOW, THEREFORE, for good and adequate consideration, the receipt and sufficiency of
which is hereby acknowledged, and in consideration of the premises, mutual promises,
representations, warranties, and covenants herein contained, and subject to and on the terms and
conditions hereinafter set forth, the Parties, intending to be legally bound, agree as follows:
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AGREEMENT
1. Services.
(a) Scope of Services.
(i) Business Services. Subject to the terms and conditions set forth in this
Agreement, for the periods set forth in Schedule A during the Term, Seller, as a Provider
under this Agreement, shall provide, or cause to be provided, to Purchaser, as a Recipient
under this Agreement, each of the services set forth in Schedule A (each, a “Business
Service” and collectively, the “Business Services”). Notwithstanding anything to the
contrary contained herein, Seller shall not be obligated to provide or cause to be provided
any Business Service if the provision of such Business Service would violate any
applicable Law.
(ii) Additional Services. Notwithstanding the contents of Schedule A, Seller
agrees to respond in good faith to any reasonable, written request by Purchaser for access
to any additional services that (A) were provided by Seller to the Business prior to the
Effective Date that are necessary for the operation of the Business, (B) are not currently
contemplated in Schedule A and (C) have not been terminated or wound down by Seller
(including, e.g., if any Contracts necessary for such additional services have been rejected,
personnel necessary for such additional services have been terminated or resigned, and
assets necessary for such additional services have been transferred in a Bankruptcy
Disposition) prior to Purchaser’s request, the fees of which shall be agreed upon after good
faith negotiations between the Parties, and all of which are subject to provisions of
Section 2 hereof. Any such additional services agreed to be so provided by Seller shall
constitute Business Services subject to the provisions of this Agreement and Schedule A
shall be modified to include such services.
(iii) Reverse Services. Subject to the terms and conditions of this Agreement,
for the periods set forth in Schedule B during the Term, Purchaser, as a Provider under this
Agreement, shall provide, or cause to be provided, to Seller and its Affiliates, each as a
Recipient under this Agreement, the services set forth in Schedule B (each, a “Reverse
Service” and collectively, the “Reverse Services”) and with respect to such Reverse
Services, all references in this Agreement to the Business shall be deemed to be references
to the business of the Seller (taking into account any Bankruptcy Disposition).
Notwithstanding anything to the contrary contained herein, Purchaser shall not be obligated
to provide or cause to be provided any Reverse Service if the provision of such Reverse
Service would violate any applicable Law.
(b) Bankruptcy Dispositions. Notwithstanding anything in this Agreement to the
contrary, Seller shall have no obligation to provide, or cause to be provided, any Business Service
to the extent that such Business Service cannot be provided without an asset or resource that was
divested or otherwise disposed of in connection with any of the Bankruptcy Cases (a “Bankruptcy
Disposition”); provided, however, that (i) to the extent such Bankruptcy Disposition is to the
Ventilator Purchaser, Seller shall require that such Ventilator Purchaser assume the requirements
to provide such Business Services to Purchaser that Seller can no longer provide due to the
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Bankruptcy Disposition in accordance with the terms of this Agreement, and (ii) to the extent such
Bankruptcy Disposition is to any other Person, Seller shall use commercially reasonable efforts to
assist Purchaser in securing or obtaining substantially similar assets, resources or Business
Services that Seller can no longer provide due to the Bankruptcy Disposition. Purchaser
acknowledges and agrees that (i) Seller and certain of its Affiliates are debtors in the Bankruptcy
Cases and, as such, that it and such Affiliates are subject to limitations on debtors under chapter 11
of the Bankruptcy Code and subject to any orders of the Bankruptcy Court and its debtor-in-
possession financing, (ii) it is expected that such debtors will emerge from the Bankruptcy Cases
as reorganized debtors following the Effective Date and prior to six months following the Effective
Date, and (iii) in either case of (i) or (ii), Seller will have limitations on its resources and will be
dependent on timely receipt of Fees hereunder in order to satisfy the costs and ability of providing
the Business Services.
(c) Use of Services. Recipient will, and will cause its Affiliates to, adhere to all terms
and conditions or policies as set forth in this Agreement in respect of its receipt of the Business
Services or Reverse Services, as applicable (the “Services”). The Business Services will be
provided solely to, and may be used solely by, Purchaser and its Affiliates in connection with the
operation of the Business as the Business was operated as of the Effective Date. As applicable,
neither Party has an obligation to provide any Service to the other Party in a manner greater in any
material respect than the level at which the Seller or its Affiliates used such Service as of the
Effective Date. For the avoidance of doubt, the Business Services or Reverse Services, as
applicable, may be used by Recipient or third parties as permitted by this Agreement, at any
location which Recipient may designate, in each case in Recipient’s sole discretion; provided that
Services that are provided with respect to or that depend on physical assets located at a given
location as of the Effective Date may not be transferred without Provider’s reasonable consent.
(d) Standards of Services. Provider will provide, or cause to be provided, the Services
in a workmanlike manner, consistent with the level of service provided to the Business in the
Ordinary Course. Provider will use commercially reasonable efforts to enforce and pass through
to Recipient the rights or benefits from any service level agreements or arrangements that Provider
has with any third-parties performing Services (including by applying penalties for third-parties’
failure to achieve service levels to reduce Fees). Provider shall not make changes in the manner
of performing the Services that deviates from the first sentence of this Section 1(d) without the
prior written consent of Recipient, such consent not to be unreasonably withheld. Recipient
acknowledges that Provider may, in its sole and reasonable discretion, temporarily suspend the
provision of Services (or any part thereof), including for reasons of preventative or emergency
maintenance; provided that Recipient receives reasonable advance notice from Provider for any
such suspension unless as a result of exigent circumstances for which advance notice is not
possible (which notice shall be provided as promptly as possible). Seller will not adversely
differentiate the provision of Business Services to the Business of Purchaser in relation to the
provision of services to the business of the Ventilator Purchaser.
(e) Third Party Consents. To the extent the provision by Provider or its subcontractors
of any Service requires the consent, license, or approval of any third party to provide any Service
(a “Consent”), then Provider and Recipient shall cooperate in good faith to obtain such Consent to
enable Provider or its applicable subcontractor to provide such Service. Purchaser shall bear the
costs, fees and expenses directly incurred as a result of seeking and obtaining any such Consent,
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including the cure amount related thereto. Seller shall cooperate in good faith with Purchaser to
minimize costs of obtaining any such Consent, including ensuring that applicable costs and cure
amounts be apportioned with the Ventilator Purchaser, where applicable, in proportion with their
respective usage of the underlying Service. If a Consent is required to permit Seller or a
subcontractor to provide, or Purchaser to receive, a particular Business Service, then Seller shall
be relieved of the obligation to provide the applicable Business Services until such Consent is
obtained; provided that Seller used commercially reasonably efforts to obtain such consent prior
to the Effective Date.
(f) Cooperation. Recipient shall (i) cooperate with Provider to provide all resources
and timely decisions, approvals and acceptances in order that Provider may perform its obligations
under this Agreement in a timely and efficient manner, and (ii) make available on a timely basis
to Provider access to employees, facilities, systems, and all information and materials requested
by Provider, in each case as reasonably necessary for providing the Services. Notwithstanding the
foregoing, Provider’s delay in performing or failure to perform any of its obligations under this
Agreement shall be excused (and Provider shall not be liable to Recipient) if and to the extent such
delay or failure results from Recipient’s failure to timely provide any of the foregoing or to perform
any of its obligations hereunder.
(g) Transition Management. Each of Provider and Recipient shall, within five (5) days
after the Effective Date, appoint a transition manager (the “Transition Managers”) for purposes of
administering, managing and overseeing the performance of the Services and other obligations of
the Parties under this Agreement. The Transition Managers shall be the primary points of contact
with respect to the day-to-day provision of the Services hereunder, and shall meet regularly to
prepare and administer the Transition Plan (as defined below), review, resolve and render invoices,
ensure that Services are provided to the agreed standards of service, and utilize good faith efforts
to promptly resolve any issues that may arise during the performance of the Services before any
such dispute is escalated in accordance with Section 9(j) hereof. For the avoidance of doubt, the
Parties acknowledge that the forgoing does not constitute an exhaustive list of duties of the
Transition Managers. To the extent a Party desires to replace its Transition Manager, such
Party shall provide prior written notice of any such replacement; it being understood and agreed
that Provider and Recipient shall take all commercially reasonable actions to ensure a qualified
representative is promptly appointed to fill such role. Notwithstanding the foregoing, any
amendment or waiver of this Agreement must be in accordance with Section 9(d).
(h) Tripartite Agreement. If and when requested by the Recipient, Provider agrees to
reasonably cooperate with the Recipient and each Party agrees to use commercially reasonable
efforts to execute and deliver, or cause its respective Affiliates to execute and deliver, a tripartite
agreement in substantially the form attached hereto as Exhibit A (the “Tripartite Agreement”) in
connection with the transfer of employment to Recipient or any of its Affiliates of any employee
in the United Arab Emirates or any other country for whom Provider is managing payroll as a
Business Service. In the event that, notwithstanding such efforts of the Parties, any employee in
the United Arab Emirates is unwilling to agree to a Tripartite Agreement, Purchaser shall be
responsible for and shall pay (or reimburse Seller or its applicable Affiliate, or cause to be paid or
reimbursed) amounts, if any, due and owing upon termination of such employee’s employment
with the applicable Affiliate of Seller.
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2. Pricing and Payment.
(a) Fees.
(i) As consideration for the Services, each Recipient shall pay to each Provider
or its designee, as applicable, all reasonable and documented fees, costs and expenses that
are incurred by such Provider for the provision of the Services, with no mark-up or profit
of any kind (the “Fees”), including any third party costs and expenses arising in connection
with any early termination of a Service or this Agreement. The Fees for Business Services
shall be no less favorable than those offered to the Ventilator Purchaser for services
comparable to the Business Services, in that both Purchaser and Ventilator Purchaser shall
be responsible for the actual costs of their respective services without markup or discount
(and the transition services agreement with the Ventilator Purchaser, a copy of which has
been provided to Purchaser, requires the foregoing of both Seller and Ventilator Purchaser).
To the extent a Business Service is also provided to the Ventilator Purchaser, the Fees for
such Business Service shall be apportioned among Purchaser and Ventilator Purchaser in
amounts equal to their proportionate usage of such Business Services. In addition,
(A) Recipient shall bear the reasonable costs of (i) any reasonable additional license fees,
cure costs, temporary right-to-use fees, royalties, or other amounts payable to any third
party that are necessary for Provider to provide or for the Recipient to receive the Services
and (ii) standing up replacement solutions and integrating Business data into such
solutions; and (B) Recipient shall bear the costs of separating Business information and
data housed in shared systems that it controls. For the avoidance of doubt, and
notwithstanding anything to contrary herein, in no event shall Recipient be responsible for
any portion of Fees attributable to Ventilator Purchaser, including any increase in Fees
resulting from early termination of any service by Ventilator Purchaser, unless Seller has
provided Recipient written notice of such increase at least fifteen (15) days prior to the
effective date of such increase, including Seller’s good faith estimate of any Fee increase
or adjustment as a result of such termination. Seller shall provide written notice of any
termination by Ventilator Purchaser promptly upon receipt of notice from Ventilator
Purchaser in accordance with the transition services agreement with the Ventilator
Purchaser and shall reasonably cooperate with Purchaser with respect to the foregoing,
including, by allowing Purchaser to terminate such affected Business Service by written
notice to Seller. If Purchaser elects to terminate such affected Business Service, such
termination shall be effective upon the earlier of (1) the time at which such termination
would otherwise be effective under Section 3(c) and (2) the later of (a) the effective date
of the termination of such service under the the transition services agreement with the
Ventilator Purchaser and (b) the date set forth in Purchaser’s notice. If clause (2) of the
preceding sentence applies, neither Party shall be required to comply with the any notice
requirements set forth in Section 3(c) hereof; provided that Purchaser provides prompt
written notice to Seller of its intent to terminate such service together with Ventilator
Purchaser.
(ii) To the extent any of the Fees would be increased as a result from
(A) entering into a new Contract, (B) engaging a new third party provider, (C) a request
from a third party provider to increase its costs, (D) agreeing to any Cure Cost, (E) a request
to a third party provider that would result in an increase in the costs of such provider, or
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(F) an increase in compensation of Seller employees, in each case, as compared to as of the
Effective Date, Purchaser shall have consented to such increase in advance. In the event
that Seller becomes aware of that any such increase is necessary in order for Seller to
continue to provide the Services in accordance with the terms of this Agreement, Seller
will promptly provide written notice to Purchaser. Seller will use commercially reasonable
efforts to continue to provide the Services in accordance with the terms of this Agreement
as long as reasonably practicable without such increase, but to the extent such increase is
necessary in order for Seller to continue to provide the Services in accordance with the
terms of this Agreement and Purchaser does not consent to such increase, Seller shall be
excused from performance of such Service to the extent of such inability.
(iii) It is understood that employees of Provider or any of its Affiliates that are
providing Business Services to the Recipient under this Agreement will remain employees
of Provider or such Affiliate, as applicable, and shall not be deemed to be employees of
Recipient or any of its Affiliates for any purpose. Provider or such Affiliate, as applicable,
shall be solely responsible for the payment and provision of all wages, bonuses, employee
benefits, and the withholding and payment of all applicable taxes relating to such
employees and for any costs arising from the termination of employment of any such
employees. Neither Recipient nor any of its Affiliates shall have any liability whatsoever
for any of the foregoing employee related costs; provided that this Section 2(a)(iii) shall
not limit Recipient’s responsibility for any Fees themselves, which Fees will include all
wages, bonuses, employee benefits, and the withholding and payment of all applicable
taxes relating to such employees solely relating to the Services.
(iv) All amounts charged under this Agreement will be billed and paid in U.S.
Dollars.
(b) Taxes.
(i) Sales Tax or Other Transfer Taxes. Unless otherwise specified thereon, the
Fees are exclusive of Sales and Service Taxes. Recipient shall bear any and all sales, use,
excise, value added, goods and service, consumption, turnover, transaction and transfer
taxes and any other similar Taxes imposed on or payable with respect to the Services
(collectively, the “Sales and Service Taxes”); provided that each of Provider and Recipient
shall be responsible for Taxes based on its respective net income. Within ten (10) days of
receipt of an invoice in accordance with Section 2(c) and applicable tax Law, such Sales
and Service Taxes will be payable by Recipient in addition to the Fees in accordance with
this Agreement; provided that unless otherwise required by applicable Law, Recipient shall
pay an amount equal to such Sales and Service Taxes to the applicable governmental
authority and shall file all tax returns that are required to be filed in connection therewith;
provided further that to the extent Provider is required by applicable Law to remit such
Sales and Service Taxes to the applicable governmental authority, Recipient shall timely
pay an amount equal to such Sales and Service Taxes to Provider and Provider shall (i)
remit such Sales and Service Taxes to the applicable governmental authority and shall file
all tax returns that are required to be filed in connection therewith and (ii) provide Recipient
with any proof of payment or filing or any other documentation reasonably requested by
Recipient confirming that Provider has remitted such Sales and Service Taxes to the
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applicable governmental authority and filed all tax returns that are required to be filed in
connection therewith. The Parties shall cooperate with one another in good faith to
minimize any Sales and Service Taxes, including by providing any applicable tax forms,
documentation or certificates as may be reasonably necessary to avail of any exemption
from, or reduction of, such Sales and Service Taxes.
(ii) Withholding Tax or Other Similar Taxes. Payments for Services or other
amounts under this Agreement shall be made free and clear of, and without deduction or
withholding for any Taxes; provided that if any withholding or deduction is required
pursuant to any applicable Law, Recipient will: (1) withhold or deduct such Tax from the
amount payable to Provider, (2) gross up the amount payable to Provider as necessary so
that after making all such required withholding and deductions, Provider receives the
amount it would have received had no such withholding or deduction of Taxes been made,
(3) timely pay the withheld or deducted amount to the relevant governmental authority and
(4) promptly forward to Provider a certificate or other evidence of such payment.
(c) Billing and Payment.
(i) Initial Payment. On the Effective Date, Purchaser shall pay to Seller
Seller’s good faith estimate of the amount of Fees that are expected to be payable in
accordance with the terms of this Agreement with respect to Business Services to be
provided for the remainder of the month in which the Effective Date occurs.
(ii) Purchaser Invoices. Seller shall invoice Purchaser in advance on a monthly
basis for the Seller’s good faith estimate of the amount of Fees that are expected to be
payable in accordance with the terms of this Agreement with respect to Business Services
to be provided in the month following such invoice and Purchaser shall pay to Seller
(A) 75% of such estimated Fees and (B) the remaining 25% of the invoice for the prior
month, as adjusted. In the event that the Effective Date occurs on or after the 15th of the
month, the Parties shall reasonably cooperate to arrange for funding of the month
immediately following the month in which the Effective Date occurs to be made in
accordance with this Section 2(c)(ii) prior to the start of such following month.
(iii) Invoice Adjustments. Each monthly invoice be adjusted to (A) include the
actual amounts payable in accordance with the terms of this Agreement that are in excess
of the estimated amounts previously included in the prior invoice; or (B) be reduced to the
extent the estimated amounts in the prior month’s invoice were in excess of the amounts
actually incurred during such month in accordance with the terms of this Agreement. Each
monthly invoice will apply such adjustments to both the 75% prepaid for the prior month
and the 25% remaining to be paid for the prior month, resulting in one aggregate adjustment
for the prior month to be added to or subtracted from the 75% payment to be made for such
invoice for the next month. To the extent applicable, all invoices shall reasonably identify
the applicable Business Service, any fixed costs, any variable costs, and the variance from
the previous invoice, based on actual figures, including reasonably detail for material
discrepancies from the estimate.
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(iv) Seller Fees. In those cases where the Provider is the Purchaser and the
Recipient is the Seller, the Provider shall invoice the Recipient monthly in arrears for the
Fees incurred by the Provider or any of its Affiliates, and Recipient shall pay Provider in
full such Fees within thirty (30) days after the date of each such invoice.
(v) Payment Method. Recipient shall pay Provider by wire transfer in
accordance with the instructions provided by Provider in writing to Recipient. In the event
Recipient disputes in good faith any amount due for a particular Service as reflected on an
invoice, Recipient shall (i) deliver a written statement to Provider within ten (10) days
following receipt of Provider’s invoice, listing all disputed items and providing a
reasonably detailed description of each disputed item and (ii) withhold the disputed
amounts until resolution of such dispute as set forth herein. For the avoidance of doubt,
any other amounts not subject to a good faith dispute shall be payable as set forth in
Section 2(c)(iv) above. Provider shall continue to perform the Services so long as the
Parties seek to resolve all such disputes expeditiously and in good faith and so long as
Seller has sufficient funding to pay the costs of the Services.
(d) Interest Payments on Amounts Past Due. All payments required to be made
pursuant to this Agreement shall, unless disputed in good faith, bear interest from and including
the date such payment is due until but excluding the date of payment, at a rate of the lesser of
(i) one and one-half percent (1.5%) each month and (ii) the highest amount permitted by applicable
Law. Such interest shall be payable at the same time as the payment to which it relates and will
be calculated on the basis of a month of thirty (30) days and the actual number of days elapsed.
(e) Right of Set-Off. Each Party hereby acknowledges that it shall have no right under
this Agreement to set-off any amounts owed (or to become due and owing) to the other Party,
whether under this Agreement, the Purchase Agreement or otherwise, against any other amount
owed (or to become due and owing) to it by the other Party; except that in those cases where the
Recipient is the Purchaser and estimated Fees for any particular month exceed the costs actually
incurred by the Provider for the performance of Services, the invoice for the subsequent month
shall be reduced by such excess in accordance with Section 2(c)(iv).
(f) Audit Right; Record Retention. During the Term, Recipient may, during normal
business hours, audit the books, records and accounts of the Provider, at Recipient’s sole cost and
expense, to the extent that such books, records and accounts pertain to Business Services hereunder
or otherwise relate to the performance of this Agreement by Provider. Provider shall maintain all
such books, records and accounts for a period of at least three (3) years after the date of expiration
or termination of this Agreement or, if earlier, until the winddown and dissolution of Seller or its
applicable Subsidiary and in accordance with applicable Law. The Recipient’s right to audit
hereunder shall survive the expiration or termination of this Agreement for a period of three (3)
years after the date of such expiration or termination or, if earlier, until the winddown and
dissolution of Seller or its applicable Subsidiary.
3. Term and Termination.
(a) Term. The term of this Agreement will commence on the Effective Date and,
unless sooner terminated pursuant to Section 3(c) or Section 3(d) or as mutually agreed among the
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Parties, continue until the earlier of (i) the date that is six (6) months after the Effective Date
(provided that, solely with respect to such Services that are necessary to maintain those
registrations or permits as expressly indicated in Schedule A, unless sooner terminated, the term
of this Agreement shall continue until the date set forth for such Services in Schedule A, except
that, in no event shall such term exceed the date that is eighteen (18) months after the Effective
Date); and (ii) the date on which all of the Services have been transitioned, terminated or have
expired (the “Term”). For clarity, with respect to each of the Services, the term of each Service
will commence on the Effective Date and, subject to Section 3(c) and Section 3(d), shall expire
and terminate upon the date specified for such Service in Schedule A or Schedule B, as applicable
unless sooner terminated as set forth in this Agreement (the last date in each such term is referred
to herein as the “Termination Date” for each of such Services). Recipient will use commercially
reasonable efforts to end Recipient’s need to use each Service as soon as commercially practicable
following the Effective Date, except that Recipient shall have the right, upon reasonable request
to and consent of Provider (not to be unreasonably withheld), to extend the service period with
respect to any particular Business Service for thirty (30) day periods, but in no event later than the
applicable Termination Date.
(b) Business Service Term Beyond the Plan Effective Date. Notwithstanding anything
to the contrary in this Agreement, if (i) the provision of any Business Service is dependent upon
access to an executory contract and (ii)(A) the Termination Date set forth on Schedule A for any
Business Service would otherwise occur after the effective date of any plan of reorganization in
the Bankruptcy Cases (the “Plan Effective Date”) or (B) the term with respect to such Business
Services would otherwise extend beyond the Plan Effective Date, such Business Service will
terminate on the Plan Effective Date unless Purchaser agrees to pay any associated cure cost for
Seller to assume and assign the executory contract to Purchaser and Purchaser does so assume
such executory contract on or prior to the Plan Effective Date. As soon as reasonably practicable
prior to the Plan Effective Date, Seller shall provide Purchaser advanced written notice of any
expected disruption or termination of Business Services.
(c) Termination by Recipient. Except as otherwise specified in Schedule A and
Schedule B, as applicable, Recipient will have no obligation to continue to use any of the Services,
and may reduce or terminate a Service in whole, but not in part, by giving Provider not less than
thirty (30) days’ prior written notice of its desire to reduce or terminate the such Service; provided,
however, that the reduction or termination of such Service will be effective as of the beginning of
the following calendar month (after the expiration of such thirty (30)-day notice period). As soon
as reasonably practicable following receipt of any such notice, Provider will advise Recipient in
writing as to whether the reduction or termination of such Service will require the reduction,
termination or partial termination of, or otherwise affect the performance of, any other Services
and related details. Upon receipt of such advice from Provider, Recipient may withdraw or
confirm its reduction or termination notice within ten (10) Business Days following the receipt of
such advice from Provider. No reduction or termination notice will be deemed final unless
Recipient provides Provider with written notice confirming such reduction or termination notice.
(d) Termination for Breach.
(i) By Provider. Either Party, in its capacity as Provider, (as applicable) may
terminate its respective obligation to provide a particular Business Service or Reverse
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Service (as applicable) immediately upon written notice if the other Party, in its capacity
as Recipient, materially breaches this Agreement in respect of such Business Service or
Reverse Service (as applicable) and has not cured such breach within ten (10) days after
receipt from the other Party of written notice of such breach, and Seller may terminate its
respective obligation to provide a particular Business Service immediately upon written
notice if such Business Service can no longer be provided as a result of a Bankruptcy
Disposition.
(ii) By Recipient. Subject to the qualifications with respect to Seller and its
Affiliates set forth in Section 1(b), either Party, in its capacity as Recipient (as applicable)
may terminate any or all Business Services or Reverse Services (as applicable) it is
receiving immediately upon written notice if the other Party, in its capacity as Provider,
materially breaches this Agreement and has not cured such breach within ten (10) days
after receipt from the other Party of written notice of such breach. [In the event the
Recipient terminates this Agreement in accordance with this Section 3(d)(ii), the Recipient
shall only be responsible for Fees related to Services provided in accordance with the terms
of this Agreement and shall have no obligations to pay the Provider any Fees accruing after
the effective date of such termination.]1
(e) Effect of Termination. Each Party acknowledges and agrees that the expiration or
termination of a Service or this Agreement for any reason shall not release a Party from any
liability or obligation with respect to those Services that have not been terminated (including the
continuing duty to provide those Services or portions thereof that have not been terminated), or
other obligation that already has accrued as of the effective date of such termination, as applicable,
and shall not constitute a waiver or release of, or otherwise be deemed to adversely affect, any
rights, remedies, or claims which a Party may have hereunder at Law, in equity or otherwise or
which may arise out of or in connection with such termination. In the event of the expiration or
termination of this Agreement or any Service for any reason, all applicable rights and obligations
of the Parties will immediately cease and terminate, and no Party will have any further obligation
to the other Party with respect to this Agreement (or such Service), except (i) for payment of Fees
accrued but unpaid, (ii) Purchaser shall be responsible for all early termination, wind-down, and
other costs incurred by Provider or its Affiliates that are incurred as a result of the early termination
of a Business Service, and (iii) any obligations that survive pursuant to Section 3(f). In the event
of any termination of a Business Service, to the extent all amounts paid in advance by Purchaser
exceed the final amounts payable by Purchaser under this Agreement, Sellers shall promptly
refund such excess to Purchaser. For the avoidance of doubt, Seller acknowledges, approves, and
agrees that Purchaser shall be deemed a holder of an allowed administrative claim in the
Bankruptcy Cases under the Bankruptcy Code for the full amount of any reimbursement obligation
of Seller hereunder.
(f) Survival. Section 2, Section 3(e), Section 3(f), Section 6, Section 7, Section 8, and
Section 9 shall survive any termination or expiration of this Agreement.
1 K&E NTD: Subject to Seller review.
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4. Third-Party Agreements; Intellectual Property; Information Security and Privacy.
(a) Third-Party Agreements. Recipient agrees to comply with the terms of any license
or other agreement of Provider or any of its Affiliates relating to the performance of any Services.
Recipient acknowledges that certain Services are dependent on specific underlying third-party
software, systems, or services and any such Services are limited to the scope and time limits
imposed in any license or temporary right-to-use granted by the licensor or service provider
thereof.
(b) Intellectual Property.
(i) Any Intellectual Property, software, development tools, know-how,
methodologies, processes, technologies or algorithms owned by Provider or any of its
Affiliates and which may during the Term be operated or used by Provider or any of its
Affiliates in connection with the performance of the Services hereunder will remain
Provider’s or its Affiliates’ (as applicable) property and Recipient will have no rights or
interests therein. Any Intellectual Property, software, development tools, know-how,
methodologies, processes, technologies or algorithms owned by any Recipient and which
may during the Term be operated or used by Provider or any of its Affiliates in connection
with the performance of the Services hereunder will remain such Recipient’s property and
neither Provider nor any of its Affiliates will have any rights or interests therein.
(ii) To the extent required for the provision or receipt of the Services in
accordance with this Agreement, each Party (as applicable, the “Licensor”), for itself and
on behalf of its Subsidiaries, hereby grants to the other (as applicable, the “Licensee”) (and
the Licensee’s Subsidiaries) a non-exclusive, non-transferable, non-sublicensable (except
to third parties as required for the provision or receipt of Services, but not for their own
independent use), royalty-free, worldwide license during the term of this Agreement to use
Intellectual Property owned or sublicensable Licensor, but only to the extent and for the
duration necessary for the Licensee to provide or receive the applicable Service under this
Agreement. Upon the expiration of such term, or the earlier termination of such Service in
accordance with this Agreement, the license to the relevant Intellectual Property will
terminate (unless, and then only to the extent that, the license to such Intellectual Property
is required or necessary for the provision or receipt of Services that have not been
terminated hereunder); provided that all licenses granted hereunder shall terminate
immediately upon the expiration or earlier termination of this Agreement in accordance
with the terms hereof. The foregoing license is subject to any licenses granted by others
with respect to Intellectual Property not owned by the Parties or their respective
Subsidiaries.
(c) Information Systems. Each Party shall use commercially reasonable efforts to
maintain an information security program designed to protect Personal Information. In accessing
any Provider systems or platforms, Recipient shall (and shall cause its employees to) comply with
Provider’s reasonable policies and instructions, including rules and procedures pertaining to safety,
infrastructure, information technology systems, security, and confidentiality. Each Party shall
comply with applicable Laws related to information security and data privacy as it applies to the
provision or receipt of Services, respectively.
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5. Transition Plan(s); Data Separation.
(a) Preparation of Transition Plan. Immediately following the execution of this
Agreement, the Parties shall use commercially reasonable efforts to jointly prepare a written plan
(the “Transition Plan”) to be completed by no later than thirty (30) days following the execution
of this Agreement. The Transition Plan shall set forth: (i) the timetable and steps that each of
Purchaser and Seller will take to reduce and ultimately end requirements for or transfer to
Recipient or a successor Provider (“Successor Provider”); and (ii) any additional and reasonable
assistance that Purchaser or Seller requires in relation to the transfer to the Successor Provider of
those applicable Services (e.g., assistance in identifying any additional information and activities,
other than those listed in the Transition Plan, that are needed to transfer the applicable Services to
the relevant Successor Providers); provided that Seller and Purchaser shall cause such assistance
requiring merely de minimis resources on the part of such Party or its Affiliates to be performed
without any additional charges to the other such Party.
(b) Level of detail in Transition Plan. The Transition Plan, as agreed in good faith by
Purchaser and Seller, shall not be inconsistent with, or (unless expressly agreed by the Parties)
modify, the terms of this Agreement (including the description in the attached Schedules of the
applicable Services), be reasonably detailed, and shall show the timetable and principal steps each
Party will execute in order to reduce and ultimately end the Recipient’s requirements for those
applicable Services.
(c) Amending the Transition Plan. Each of Seller and Purchaser may propose to modify
the Transition Plan from time to time. Any such modification will be subject to the other Party’s
mutual agreement, not to be unreasonably withheld or delayed.
(d) Data separation.
(i) As soon as reasonably practicable, Seller will use commercially reasonable
efforts, to identify and provide logical separation of the Business’ data for each Business
Service, to the extent applicable, in Schedule A for which logical separation is
contemplated under the Transition Plan. For this purpose, “logical separation” means that
the Business’ data is logically separated from other legal entities’ data (e.g., in different
database tables or logical partitions).
(ii) Promptly following the expiration of the applicable Termination Date or as
otherwise contemplated by the Transition Plan, Seller will provide to Purchaser the
Business’ data with respect to a Business Service logically separated in the format in which
such data has been separated; provided, however, that Seller will consult with Purchaser
with respect to the format in which such data is to be provided to Purchaser by Seller.
6. Representations and Warranties.
(a) Mutual. Each Party hereby represents and warrants to the other that: (i) the
execution, delivery and performance of this Agreement has been duly and validly authorized; and
(ii) this Agreement constitutes the valid and binding obligations of each Party, enforceable against
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each Party in accordance with its terms (subject to bankruptcy, moratorium, and similar laws and
subject to the application of specific performance and other equitable principles).
(b) Seller. Seller hereby represents and warrants to Purchaser that, as of the Effective
Date, to Seller’s knowledge, no asset or resource was divested or otherwise disposed of in
connection with any of the Bankruptcy Cases that is necessary to perform the Services, except
pursuant to a Bankruptcy Disposition or with respect to Reverse Services, in either case, prior to
the Effective date and only if the foregoing was effected in accordance with the terms of this
Agreement as if this Agreement had been in effect as of the time of such foregoing event.
(c) Disclaimer. EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT,
THE SERVICES ARE PROVIDED “AS-IS” AND NEITHER PARTY MAKES ANY
REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THIS AGREEMENT. EACH
PARTY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY
IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, EXCEPT TO THE EXTENT THAT ANY
WARRANTIES IMPLIED BY LAW CANNOT BE VALIDLY WAIVED.
7. Limitations on Liability.
(a) EXCEPT FOR EITHER PARTY’S GROSS NEGLIGENCE, WILLFUL
MISCONDUCT, WILLFUL BREACH OF THIS AGREEMENT, AND BREACHES OF
CONFIDENTIALITY, IN NO EVENT WILL PROVIDER OR ANY OF ITS AFFILIATES BE
LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR
CONSEQUENTIAL DAMAGES OR LOST PROFITS, LOSS OF REVENUE, OR LOST SALES
IN CONNECTION WITH THIS AGREEMENT REGARDLESS OF WHETHER SUCH PARTY
WAS ADVISED OF THE POSSIBILITY OF SUCH CLAIMS, LOSSES, DAMAGES,
INJURIES, OR LIABILITIES. THE AGGREGATE DAMAGES FOR WHICH A PARTY MAY
BE LIABLE IN CONNECTION WITH OR AS A RESULT OF THIS AGREEMENT OR THE
SERVICES SHALL NOT EXCEED THE AMOUNT EQUAL TO THE AGGREGATE
AMOUNT PAID TO SUCH PARTY AS THE PROVIDER OF THE SERVICES UNDER THIS
AGREEMENT FOR THE APPLICABLE SERVICE(S) GIVING RISE TO THE CLAIM FOR
DAMAGES SINCE THE EFFECTIVE DATE. THE LIMITATIONS ON LIABILITY IN THIS
SECTION 7 APPLY TO ANY AND ALL CLAIMS, LOSSES, DAMAGES, INJURIES, OR
LIABILITIES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF
LIABILITY, WHETHER DERIVED FROM CONTRACT, TORT (INCLUDING
NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF EITHER PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH CLAIMS, LOSSES, DAMAGES, INJURIES, OR
LIABILITIES, AND REGARDLESS OF WHETHER THE LIMITED REMEDIES UNDER
THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
(b) Duty to Mitigate. Each Party shall use commercially reasonable efforts to mitigate
liability, damages, and other losses arising out of, relating to, or in connection with, any
performance or lack of performance under this Agreement.
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8. Confidentiality.
(a) Definition of Confidential Information. The following shall be considered
“Confidential Information” of a Party under this Agreement: all proprietary and confidential
information, provided or received in connection with the provision of the Services hereunder,
concerning the business, business relationships (including prospective customers and business
partners) or financial affairs of such Party or any of its Affiliates, whether or not in writing and
whether or not labeled or identified as confidential or proprietary, including inventions, trade
secrets, technical information, know-how, product and pricing information and plans, research and
development activities, marketing plans and activities, customer, supplier and prospect
information, employee and financial information, and information disclosed by third parties of a
proprietary or confidential nature or under an obligation of confidence, including Purchaser’s
“confidential information and data” (as defined in the Purchase Agreement) concerning the
Business or the Acquired Assets. Notwithstanding the foregoing, Confidential Information does
not include, and there shall be no obligation under this Section 8, with respect to information that
(i) is or becomes generally available to the public other than as a result of disclosure by the
Receiving Party or its Representatives in violation of this Agreement, (ii) is or becomes available
to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party
or its Representatives, which source, to the Receiving Party’s knowledge, is not bound by any
contractual or other obligation of confidentiality to the Disclosing Party with respect thereto, (iii)
is developed by the Receiving Party or its Representatives independently of the Confidential
Information disclosed to it under this Agreement, or (iv) was in the Receiving Party’s possession
prior to its receipt from or on behalf of the Disclosing Party and received from a source other than
the Disclosing Party or its Representatives, which source, to the Receiving Party’s knowledge, is
not bound by any contractual or other obligation of confidentiality to the Disclosing Party with
respect thereto. The terms and conditions of this Agreement shall constitute the Confidential
Information of each Party.
(b) Confidentiality. At all times during the Term and so long as the Confidential
Information or trade secret is maintained as such under applicable Law, each Party (a “Receiving
Party”) shall, and shall cause its Affiliates, and its and their current and former respective officers,
directors, employees and agents (collectively, such receiving party’s “Representatives”) to, keep
completely confidential and not publish or otherwise disclose the Confidential Information of the
other party (the “Disclosing Party”), except to the extent disclosure is permitted by the terms of
this Agreement. Each Receiving Party shall (and shall cause its Representatives to) take
reasonable actions to protect against any disclosure of the Confidential Information of the
Disclosing Party (and shall use no less than a reasonable degree of care) except as expressly
permitted under this Section 8. Each Receiving Party may disclose Confidential Information
disclosed to it by the Disclosing Party to the extent that such disclosure by the Receiving Party is:
(i) required by applicable Law; provided, however, that the Receiving Party, where reasonably
possible, shall first have given notice to the Disclosing Party and give the Disclosing Party a
reasonable opportunity to quash any applicable order or obtain a protective order requiring that the
Confidential Information and documents that are the subject of such order be held in confidence;
and provided further that if a disclosure order is not quashed or a protective order is not obtained,
the Confidential Information disclosed in response to such court or governmental order shall be
limited to the information that is legally required to be disclosed in response to such court or
governmental order; (ii) made by the Receiving Party or its Representative to its attorneys,
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auditors, advisors, consultants, contractors, licensees or other third parties in connection with the
performance of its obligations or exercise of its rights as contemplated by this Agreement;
provided, however, that such individuals or entities shall be subject to obligations of confidentiality
substantially similar to the Receiving Party’s obligations hereunder; or (iii) made by the Receiving
Party or its Representative to actual or prospective acquirers, merger candidates, financing sources,
or investors (and to their respective Affiliates, Representatives, and financing sources); provided
that each such third party signs an agreement that contains obligations of confidentiality
substantially similar to the Receiving Party’s obligations hereunder.
9. Miscellaneous.
(a) Purchase Agreement. In the event of a conflict between the terms of this Agreement
and the Purchase Agreement, the terms of this Agreement shall control.
(b) 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 (i) when personally delivered,
(ii) when transmitted by electronic mail (having obtained electronic delivery confirmation thereof),
if delivered by 5:00 P.M. local time of the recipient on a Business Day and otherwise on the
following Business Day, (iii) the day following the day on which the same has been delivered
prepaid to a reputable national overnight air courier service or (iv) 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:
Trudell Medical Limited
Attention: General Counsel
Email: GC@tmlcorp.com
and
Crowell & Moring LLP
1001 Pennsylvania Avenue, NW
Washington, DC 20004
Attention: Samuel Feigin
Frederick Hyman
Email: sfeigin@crowell.com
fhyman@crowell.com
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Notices to Seller:
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: steve.winters@kirkland.com
Adam.clifford@kirkland.com
steve.toth@kirkland.com
Yusuf.salloum@kirkland.com
(c) Binding Effect; Assignment. 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 Agreement Order and Sale Order, Seller, 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 Seller; provided,
however, that Seller may delegate responsibility for the Business Services pursuant to Section 1(b)
and Seller will provide Purchaser advance written notice of such delegation. Notwithstanding
anything to the contrary in this Agreement, Seller may upon reasonable advanced written notice
to Purchaser, assign Seller’s rights or obligations with respect to any Reverse Service under this
Agreement to the Ventilator Purchaser, and upon such assignment, the terms and conditions of this
Agreement shall apply to Ventilator Purchaser’s receipt of the Reverse Services, mutatis mutandis,
for which purposes all references in this Agreement to Seller shall be deemed to be references to
the Ventilator Purchaser. Any attempted assignment or delegation not in accordance with this
Section 9(c) shall be null and void.
(d) 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 Seller 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.
(e) 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
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purposes of Section 9(f) 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.
(f) 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, (i) 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
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 9(f) and shall be entitled to enforce
this Section 9(f) as if a party directly hereto.
(g) 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.
(h) 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.
(i) Complete Agreement. This Agreement (together with the Purchaser Agreement,
where applicable) contains the entire agreement of the Parties respecting the provision of Services
by Provider to Recipient. 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.
(j) Jurisdiction and Exclusive Venue. Each Party 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
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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 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 9(b). Nothing in this Agreement will affect the right of any Party
to serve process in any other manner permitted by Law.
(k) Governing Law; Waiver of Jury Trial.
(i) 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.
(ii) 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 9(k).
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(l) 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.
(m) Force Majeure. Neither Party nor any of their respective Affiliates shall be liable
to the other Party (and shall not be deemed in breach of this Agreement) for any interruption of
service, any delays, or any failure to perform under this Agreement solely to the extent caused by
matters or events occurring that are beyond the reasonable control of such Party or its Affiliates,
including, (i) changes to applicable Law; (ii) fires, floods, acts of God, extremes of weather,
earthquakes, tornadoes, or similar occurrences; (iii) riot, insurrection, or other hostilities;
(iv) embargo, or fuel or energy shortage; or (v) quarantine measures, epidemics or pandemics
(including COVID-19 or the effects of any COVID-19 Measures or Recipient’s or Provider’s
compliance therewith) (each, a “Force Majeure Event”). Each Party shall use its good faith efforts
to promptly notify the other upon learning of the occurrence of a Force Majeure Event and the
affected Party shall use its commercially reasonable efforts to mitigate and eliminate the Force
Majeure Event as promptly as practicable in order to resume performance. Upon the cessation of
the Force Majeure Event, the Parties will promptly resume performance of their obligations under
this Agreement.
(n) Relationship of the Parties. Provider and its applicable Affiliates shall remain at all
times an independent contractor of Recipient in the performance of all Services hereunder. In all
matters relating to this Agreement, each Party will be solely responsible for the acts of its
employees and agents, and employees or agents of one Party will not be considered employees or
agents of the other Party. Except as otherwise provided herein, neither Party will have any right,
power, or authority to create any obligation, express or implied, on behalf of the other Party nor
will either Party act or represent or hold itself out as having authority to act as an agent or partner
of the other Party, or in any way bind or commit the other Party to any obligations. Nothing in
this Agreement is intended to create or constitute a joint venture, partnership, agency, trust, or
other association of any kind between the Parties or Persons referred to herein.
(Remainder of page intentionally left blank.)
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IN WITNESS WHEREOF, the Parties have executed this Transition Services Agreement
as of the Effective Date.
Seller
VYAIRE HOLDING COMPANY
By:
Name: John Bibb
Title: President and Chief Executive Officer
Case 24-11217-BLS Doc 789-1 Filed 11/22/24 Page 23 of 37
Exhibit A
Form of Tripartite Agreement
Attached.
DCACTIVE-78262505.3
Case 24-11217-BLS Doc 789-1 Filed 11/22/24 Page 24 of 37
PRIVATE & CONFIDENTIAL
Date:
[employee]
Dear [employee]
JOINT NOTICE FROM VYAIRE, [_____] AND [_____]
As you know, on [____], Vyaire Medical announced that it had completed the sale of the Vyaire [____] business (the
“Business”) to [_____], a [_____] (the “Transaction”).
Offer of Employment
In order for you to remain employed in the Business following the completion of the Transaction, [____] (“[___]”), on
behalf of [insert legal name of entity] (“[____]”), is offering you employment as set out in the offer letter (the “[____]
Offer Letter”) in the Appendix of this Notice.
If you accept [_____]’s offer of employment (the “Offer”), subject to the terms of this Notice, you will become an
employee of [_____] on [[____]] (the “Commencement Date”).
Additionally, if you accept the Offer:
(i) your accrued unused annual leave entitlement (if any) and past years of service with Vyaire Medical Pte.
Ltd. (“Vyaire Singapore”) will be carried over and recognised by [_____]; and
(ii) Vyaire Singapore will release you from any confidentiality restrictions that may apply to you under your
terms of employment with Vyaire Singapore, but only for the purposes of allowing you to work for [_____]
and [_____] with respect to the Business. Similarly, your confidentiality obligations to Vyaire Singapore
will continue to apply in full following the End Date, to the extent that those would not need to be released
to enable you to work for [_____] and [_____] with respect to the Business.
In connection with the Transaction, [_____] agrees that it will assume and discharge all liabilities with respect to your
employment, whether accruing prior to, on or after the completion of the Transaction.
Cessation of Current Employment
If you accept the Offer, you will become an employee of [_____] on the Commencement Date and your employment
with Vyaire Singapore will terminate on the date immediately preceding the Commencement Date (the “End Date”).
You consent to the compilation and disclosure of personal data about you (and if applicable, your next of kin and/or
dependents) and your employment with Vyaire Singapore to [_____] and [_____], and Vyaire Singapore disclosing to
[_____] and [_____] in Singapore such personal data (and for [_____] and [_____] to disclose it to relevant authorities,
subject to applicable laws) as may be required for your employment with [_____].
In consideration of Vyaire Singapore having procured the Offer from [_____] and [_____]:
(i) you agree to waive any right to notice of termination, any notice period or payment in lieu of notice with
respect to the termination of your employment with Vyaire Singapore; and
(ii) you confirm that, other than your outstanding wages and contractual benefits (excluding any accrued
unused annual leave entitlement) as at the End Date (if any), you have no Claims against Vyaire Singapore
or its affiliates and related companies arising in connection with your employment or the termination of
your employment with Vyaire Singapore, whether or not such Claims arise or may arise under contract,
tort, equitable principles or statute, and any such Claims are waived. For this purpose, Claims means all
actions, claims, demands, suits, proceedings, liabilities, sums of money, damages and costs (including
legal costs on a full indemnity basis).
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Case 24-11217-BLS Doc 789-1 Filed 11/22/24 Page 25 of 37
Acceptance
Please confirm your acceptance of this Notice and the Offer, on or before [_____] by signing and returning a copy of
the Acknowledgement and Confirmation Form and the [_____] Offer Letter to [name].
If you return a signed [_____] Offer Letter with any amendments (manuscript or otherwise), this will not constitute a
valid acceptance of the Offer.
If you require any further clarification, feel free to contact Nikki Williams, Senior Manager, Human Resources, for Vyaire
Singapore at [_____] or [_____] and [_____], [position], for [_____] [contact details].
Yours sincerely,
______________________________
[Name]
for and on behalf of
Vyaire Medical Pte. Ltd
______________________________
[name]
for and on behalf of
[insert legal name of [_____] entity]
______________________________
[NAME]
for and on behalf of
[_____]
Encl. [_____] Offer Letter
2
Case 24-11217-BLS Doc 789-1 Filed 11/22/24 Page 26 of 37
ACKNOWLEDGEMENT AND CONFIRMATION FORM
Date:
To:
Vyaire Medical Pte. Ltd (“Vyaire Singapore”)
[insert legal name of [_____] entity] (“[_____]”)
GoGlobal [_____] Pte. Ltd. (“[_____]”)
Dear Sirs,
I refer to the notice jointly issued by Vyaire Singapore, [_____] and [_____] to me on [date] (the "Notice"). All
capitalised terms used herein which are not otherwise defined shall have the same meaning as set out in the Notice.
I hereby acknowledge and confirm that I accept the Offer and the terms set out in the Notice.
____________________________
Date:
3
Case 24-11217-BLS Doc 789-1 Filed 11/22/24 Page 27 of 37
Schedule A
Business Services
Attached.
DCACTIVE-78262505.3
Case 24-11217-BLS Doc 789-1 Filed 11/22/24 Page 28 of 37
RDx– Schedule A – Business Services1
Note to Draft: Exception to Section 2(c)(i) and (ii) Billing and Payment – Initial Payment, and Purchaser Invoices. Initial invoice for Business Services to be delivered in
November 2024 will include 50% of the full month’s costs. Subsequent invoices will be prepared in accordance with the final TSA form agreement.
Quality
Service Identifier TSA Area Service Termination Date
Maintain Saudi Arabia Authorized Representative License for Vyaire Medical Inc.
which also covers Vyaire Medical GmbH until RDx can obtain a new, standalone AR
Saudi Arabia [6 months from Effective
Qual-1 License for Vyaire Medical GmbH separate license to sell product in country.
License Date]
Complaint Provide complaint handling processing (via Cognizant). [3 - 6 months from
Qual-2 Handling Effective Date]
(passthrough)
Clinical Support IITs, transition of 2105 Series to RDx QMS/update QMS docs related to [0 – 3 months from
Qual- 3
Activities clinical activities, sponsored study (pediatric). Effective Date]
Operations
Service Identifier TSA Area Service Termination Date
Serve as importer of record and legal agent for RDx in country until RDx can
China Legal [0 - 3 months from Effective
Ops-1 transition to a replacement entity.
Agent Date]
Including the facility and address for importer of record.
1 Note to Draft: Any Service to be provided hereunder that is subject to a third-party contract is subject to the bankruptcy assumption and rejection timeline, and as such, the
duration of any such Service may be shorter than indicated in this Schedule (and in turn, the Termination Date for such Service may be earlier than indicated), as provided in
the Agreement.
Case 24-11217-BLS Doc 789-1 Filed 11/22/24 Page 29 of 37
Service Identifier TSA Area Service Termination Date
United States Provide existing VMI freight/customs contract accounts with CEVA and UPS for RDx
[3 - 6 months from Effective
Ops-2 Customs and use to schedule coordinate inbound shipments into the Palm Springs production
Brokerage Date]
facility. VMI as Importer of Record for US shipments.
[0 - 6 months from Effective
Date]
• Provide access for RDx personnel, customers, and suppliers to the Palm
Springs facility to be used in the normal course of business
[Exception to Section 4(c) of
Ops-3 [rTSA with TSA, “Termination by
Palm Springs • Provide access to onsite and offsite RDx materials, inventory, workstations,
ZOLL] Recipient”. There will be no
equipment (including FA lab space and lab equipment RDx has a dedicated
minimum notice period
20 x 20 room)
required by the Recipient to
terminate the Service. ]
Services which support the import of RDx products in region until RDx moves sales to [0 months to the Close of
Ops-4 Brazil (Cotia)
distributor. the Cotia transaction]
Global Support for global trade and logistics, including access and use of the SAP based [0 – 3 months from
Ops-5
Trade/Logistics Global Trade Platform that enables customer due diligence. Effective Date]
China Maintain warehouse and transportation contract in Beijing for demo units until RDx
warehouse/ can transition to a standalone agreement with Xinjie Company (address: Haifu New
freight Energy Park, No. 1 North Liulangzhuang Village, Maju Bridge, Tongzhou District, [0 – 3 months from
Ops-6
transportation Beijing, China). In addition to warehousing costs, any freight or logistics costs Effective Date]
(Xinjie triggered by RDx (e.g. inbound or outbound shipments) will be passed through by
Company) the seller at cost.
2
Case 24-11217-BLS Doc 789-1 Filed 11/22/24 Page 30 of 37
Other Corporate
Service Identifier TSA Area Service Termination Date
Outsourced Provide collections and payables processing (via Cognizant).
[3-6 months from Effective
O2C (Order to Provide customer service order entry processing (via Cognizant).
Corp-1 Date]
Cash) Process
(passthrough)
Provide resources to source ACH Vendor banking details, verbally confirm and enter [0-30 days from Effective
Corp-2 AP Support
into JDE within first 30 days. Date]
Treasury (incl.
both personnel [0-60 days from Effective
Corp-3 Provide support to re-route mis-directed cash, etc.
and Date]
passthrough)
3
Case 24-11217-BLS Doc 789-1 Filed 11/22/24 Page 31 of 37
Service Identifier TSA Area Service Termination Date
Payroll Administration
Seller to perform payroll processing and administration for conveying
employees. Purchaser will pre fund 100% of any payroll amounts; includes
wages and taxes before any payroll run occurs.
a. China (7) – until NewCo is ready (Effective Date to 31 Dec 2024)
b. India (6) – until NewCo is ready (Effective Date to 31 Dec 2024)
c. Poland (1) – until November 30
d. Singapore (1) – until November 30
e. UK (31) – until December 31
f. U.S. (stub payroll - ~ 148) – November 13, 14, 15
g. U.S. (2) – Dec 31, 2024
Corp-4 HR h. UAE (1)
i. Australia for remainder of November payroll already funded by
Seller
j. Canada for remainder of November payroll already funded by
seller
k. Fleet taxable benefit information required for W2s at end of the
year as it relates to the portion of the year that Vyaire held the
fleet lease contract.
4
Case 24-11217-BLS Doc 789-1 Filed 11/22/24 Page 32 of 37
Service Identifier TSA Area Service Termination Date
Benefits Administration
Seller to maintain and administer current employee benefits plans until
Purchaser is able to onboard employees onto the Purchaser Benefit Plans.
Purchaser will pre fund 100% of any benefits premiums for these
employees prior to any payroll run.
a. China (7) – until NewCo is ready (Effective Date to 31 Dec 2024)
b. India (6) – until NewCo is ready (Effective Date to 31 Dec 2024)
c. Poland (1) – until November 30
Benefits
Corp-5 d. Singapore (1) – until November 30 Dec 31, 2024
Administration
e. UK (31) – until December 31
f. U.S. (2) – until visas transferred (end date – U.S. payroll ends)
g. UAE (1) – until visa transferred
h. Australia for remainder of November payroll already funded by
Seller
i. Canada for remainder of November payroll already funded by
seller
[0-3 months from Effective
Corp-6 Legal Provide access to and transfer of books and records
Date]
5
Case 24-11217-BLS Doc 789-1 Filed 11/22/24 Page 33 of 37
Technology
Service Identifier TSA Area Service Termination Date
Provide support for the continuation of IT Service Management functions existing as
of the Effective Date for End-User Services, Managed Network Services, Data Center
Services, Cloud-hosting, Wintel & VDI environments, Linux, Active Directory & IAM
Infrastructure services, Microsoft Office 365, and telephony. Support covers maintaining existing
[0-6 months from Effective
Tech-1A & Operations – infrastructure & operations services including, but not limited to:
Passthrough Date]
• Managing, maintaining, monitoring, and supporting the technology stack
• Software installations
Operational processes to provide this service.
Provide support for ongoing cybersecurity governance and protection covering
cybersecurity incident management, SIEM logging and analysis, endpoint and e-mail
security, vulnerability and threat management, Privileged Account Management
(PAM), and vendor risk management. Support covers maintaining existing
cybersecurity monitoring and management services including, but not limited to:
Cybersecurity • Identity & Access Management (IAM) integration, operations, and support [0-6 months from Effective
Tech-1B Operations –
Passthrough • Environmental controls definition, implementation, and management Date]
• Vulnerability scanning
• Security incident detection, response, and recovery
Ongoing governance of the security environment with audit support where
necessary.
Provide support for ongoing application support and maintenance for required web
applications, ERP systems, Customer Relationship Management (CRM) systems,
QARA applications, and internal corporate Workday and SABA. Support covers
Application maintaining existing application support services including, but not limited to:
[0-6 months from Effective
Tech-2 Support – • Functional and application access support for existing applications and
Passthrough Date]
services
Technical application support with upgrades as required for break-fix or regulatory
changes.
6
Case 24-11217-BLS Doc 789-1 Filed 11/22/24 Page 34 of 37
Service Identifier TSA Area Service Termination Date
Provide support for managing Enterprise Data Management solutions existing as of
the Effective Date for Master Data Management support (MDM), reporting and
analytics platforms, predictive planning support, and existing data integration
Enterprise Data
components. Support covers maintaining existing Enterprise Data Management [0-6 months from Effective
Tech-3 Management –
Passthrough support services including, but not limited to: Date]
• Functional and application access support
Managing, monitoring, and maintaining existing data platforms and integrations.
Non-Services Provide contract support to ensure all required systems, applications, software
[0-6 months from Effective
Tech-4 Contracts – (Salesforce, Teamcenter, etc.) and infrastructure (AWS, Aryaka, etc.) is accessible to
Passthrough Date]
run the RDX business successfully.
TSA Manage, coordinate, & support delivery of Technology TSAs during transition period.
Governance & Includes providing Service Level Agreement management, reporting, and operational [0-6 months from Effective
Tech-5
Service Delivery escalation through TSA delivery period for “business as usual” activities. Separation Date]
– Passthrough activities and management is out of scope of Tech-5.
Provide Migration support during transition period, will perform Migration activities
only within Vyaire IT Landscape for Vyaire existing systems covered under TECH-1A,
TECH-1B, TECH-2 & TECH-3 services, where requested by Purchaser.
Support Migration planning activities across different migration stages like
Discovery, Implementation and Cutover.
Systems
Separation Testing and validation are out of scope as it will be performed by the Purchaser, [0-6 months from Effective
Tech-6
Support – Seller will only provide SME support and historical documentation. Date]
Passthrough
Pre-approval required from the Purchaser before any Tech-6 deliverables are
activated. Payment will be made for pre-approved time and materials. Should any
vendor providing services for Tech-6 deliverables expect to incur any costs which
exceed any prior pre-approvals from Trudell, then an estimate of the additional
vendor cost will be provided to Trudell for additional pre-approval before any
vendor can continue work on any Tech-6 deliverable.
7
Case 24-11217-BLS Doc 789-1 Filed 11/22/24 Page 35 of 37
Service Identifier TSA Area Service Termination Date
Terminates when purchaser
Cybersecurity Seller to maintain cyber security insurance coverage that names Jaeger Medical
Tech-7 exits all Technology related
Insurance International Inc. and its subsidiaries as additional insured.
TSA services
Oversight and Admin
Service Identifier TSA Area Service Termination Date
O&A-1 Seller will provide TSA management, leadership and oversight of seller employees
When all TSA services have
and vendors necessary to deliver services as outlined in this schedule, coordinate
Admin been exited by the
delivery and exit of services with the purchaser, and manage all TSA related admin
purchaser.
and resolution of issues.
8
Case 24-11217-BLS Doc 789-1 Filed 11/22/24 Page 36 of 37
Schedule B
Reverse Services
Attached.
DCACTIVE-78262505.3
Case 24-11217-BLS Doc 789-1 Filed 11/22/24 Page 37 of 37
RDx – Schedule B – Reverse Services
Seller will likely require Purchaser to provide access to records and support for seller to complete required wind down activities, including, but not
limited tax filings, records retrievals, access to legacy/former Vyaire owned or operated systems, and former Vyaire employees.
Service
TSA Area Service Termination Date
Identifier
0-6 months
[Exception to Section 4(c) of
Hoechberg TSA, “Termination by
Provide ongoing access to the Vents repair and troubleshooting facility, subject to
Reverse-1 (Germany) Recipient”. There will be no
Repair reasonable policies and practices implemented by the Purchaser
minimum notice period
required by the Recipient to
terminate the Service.]
Provide payroll processing services as follows:
a. Provide support to process payroll for RemainCo Vyaire employees
Dec 31, 2024
Reverse-2 Payroll in the US and UK – this service would terminate end of Dec 2024.
b. Provide support to process payroll and benefits for RemainCo
Vyaire employees in other international jurisdictions, excluding the
US and UK
9
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