Exhibit 10.2
Asset
Purchase Agreement -New York
by and
between
Allied
Healthcare Products, Inc.,
as Seller
and
Allied
Medical, LLC,
As Purchaser
Dated as of May 7, 2023
TABLE OF CONTENTS
| ARTICLE I – DEFINITIONS |
1 |
| |
|
| Section 1.1 Defined Terms |
1 |
| Section 1.2 Other Interpretive Provisions |
11 |
| |
|
| ARTICLE II – PURCHASE AND SALE |
11 |
| |
|
| Section 2.1 Purchase and Sale of Assets |
11 |
| Section 2.2 Purchased Assets |
11 |
| Section 2.3 Excluded Assets |
14 |
| Section 2.4 Assumed Liabilities |
16 |
| Section 2.5 Retained Liabilities |
16 |
| Section 2.6 Non-Assignable Assets |
18 |
| |
|
| ARTICLE III – PURCHASE PRICE |
18 |
| |
|
| Section 3.1 Purchase Price |
18 |
| Section 3.2 Earnest Money |
19 |
| Section 3.3 Closing Payments |
19 |
| Section 3.4 Release of Earnest Money Deposit |
19 |
| Section 3.5 Proration |
19 |
| Section 3.6 Purchase Price Allocation |
19 |
| |
|
| ARTICLE IV – REPRESENTATIONS AND WARRANTIES OF SELLER |
19 |
| |
|
| Section 4.1 Organization and Power |
19 |
| Section 4.2 Authorization and Enforceability |
20 |
| Section 4.3 No Conflicts |
20 |
| Section 4.4 Consents and Approvals |
20 |
| Section 4.5 Legal Proceedings |
21 |
| Section 4.6 Brokers’ Fees |
21 |
| Section 4.7 Purchased Assets |
21 |
| Section 4.8 FDA Regulatory Compliance and Compliance with other Laws |
21 |
| Section 4.9 Financial Statements |
22 |
| Section 4.10 Taxes |
23 |
| Section 4.11 Real Property |
23 |
| Section 4.12 Intellectual Property |
24 |
| Section 4.13 Contracts |
25 |
| Section 4.14 Permits |
25 |
| Section 4.15 Environmental Matters |
25 |
| Section 4.16 Employee Plans |
26 |
| Section 4.17 Labor Matters; Employees |
27 |
| Section 4.18 Product Warranty; Product Recalls |
27 |
| Section 4.19 Product Liability |
27 |
| Section 4.20 Absence of Certain Changes or Events |
28 |
| Section 4.21 Certain Payments |
28 |
| Section 4.22 Receivables |
28 |
| Section 4.23 Insurance |
28 |
| Section 4.24 Inventory |
28 |
| Section 4.25 No Other Representations or Warranties of Seller |
28 |
| |
|
| ARTICLE V – REPRESENTATIONS AND WARRANTIES OF PURCHASER |
29 |
| |
|
| Section 5.1 Organization |
29 |
| Section 5.2 Authorization and Enforceability |
29 |
| Section 5.3 No Conflicts |
29 |
| Section 5.4 Consents and Approvals |
29 |
| Section 5.5 Legal Proceedings |
30 |
| Section 5.6 Brokers’ Fees |
30 |
| Section 5.7 Financing Source |
30 |
| Section 5.8 No Other Representations and Warranties of Purchaser |
30 |
| |
|
| ARTICLE VI – COVENANTS |
30 |
| |
|
| Section 6.1 Certain Bankruptcy Undertakings |
30 |
| Section 6.2 Bankruptcy Court Matters |
30 |
| Section 6.3 Non-Exclusive Access to Information and the Premises |
33 |
| Section 6.4 Conduct of the Business Pending Closing |
33 |
| Section 6.5 Consents and Permits |
34 |
| Section 6.6 Further Assurances |
34 |
| Section 6.7 Publicity |
35 |
| Section 6.8 Notification of Certain Matters |
35 |
| Section 6.9 Confidentiality |
36 |
| Section 6.10 Employee Matters |
36 |
| Section 6.11 Purchase of Personal Property Subject to Lease |
38 |
| Section 6.12 Tax Matters |
38 |
| Section 6.13 Collection of Receivables |
39 |
| Section 6.14 Due Diligence Reports |
39 |
| |
|
| ARTICLE VII – CONDITIONS TO CLOSING |
40 |
| |
|
| Section 7.1 Conditions Precedent to the Obligations of the Parties |
40 |
| Section 7.2 Conditions Precedent to the Obligations of Seller |
40 |
| Section 7.3 Conditions Precedent to the Obligations of Purchaser |
41 |
| |
|
| ARTICLE VIII – CLOSING |
42 |
| |
|
| Section 8.1 Closing |
42 |
| Section 8.2 Proceedings at Closing |
43 |
| Section 8.3 Deliveries by Seller |
43 |
| Section 8.4 Deliveries by Purchaser |
44 |
| |
|
| ARTICLE IX – TERMINATION |
44 |
| |
|
| Section 9.1 Termination |
44 |
| Section 9.2 Notice of Termination |
46 |
| Section 9.3 Effect of Termination |
46 |
| ARTICLE X – MISCELLANEOUS PROVISIONS |
47 |
| |
|
| Section 10.1 Amendments |
47 |
| Section 10.2 Assignment |
47 |
| Section 10.3 Binding Effect |
47 |
| Section 10.4 Counterparts; Electronic Transmission |
47 |
| Section 10.5 Entire Agreement |
47 |
| Section 10.6 Equitable Relief |
47 |
| Section 10.7 Construction |
47 |
| Section 10.8 Governing Law |
48 |
| Section 10.9 Jurisdiction; Venue |
48 |
| Section 10.10 Notices |
48 |
| Section 10.11 No Recourse |
50 |
| Section 10.12 Remedies |
50 |
| Section 10.13 Severability |
51 |
| Section 10.14 Survival |
51 |
| Section 10.15 No Third-Party Beneficiaries |
51 |
| Section 10.16 Time Is of the Essence |
51 |
| Section 10.17 Waiver of Bulk Sales Laws |
51 |
| Section 10.18 Waiver of Trial by Jury |
52 |
| Section 10.19 Waivers |
52 |
| Section 10.20 Seller’s Right to Continue Marketing |
52 |
| EXHIBITS AND SCHEDULES |
| |
| EXHIBIT A – Bid Procedures Order |
| EXHIBIT B – Sale Order |
| EXHIBIT C – Bill of Sale |
| EXHIBIT D – Assignment and Assumption Agreement |
| EXHIBIT E – Bargain and Sale Deed |
| EXHIBIT F – IP Assignment Agreement |
| |
| SCHEDULE 3.6 - Allocation |
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT
(this “Agreement”) is made and entered into as of May 7, 2023 (the “Execution Date”), by and
between Allied Healthcare Products, Inc., a Delaware corporation (“Seller”), and Allied Medical, LLC, a Delaware
limited liability company (“Purchaser”).
RECITALS
A. Seller
is engaged in the business of manufacturing and selling carbon dioxide absorbents and other products from the New York Facility (“Business”).
B. Shortly
after executing this Agreement, Seller intends to file a voluntary petition for relief (“Bankruptcy Case”), under Chapter 11
of Title 11 of the United States Code, 11 U.S.C. §§101, et seq. (“Bankruptcy Code”)
in the United States Bankruptcy Court for the Eastern District of Missouri (“Bankruptcy Court”), with such filing date
being the “Petition Date”.
C. After
the Petition Date, Seller will seek the Bankruptcy Court’s authorization and approval for this Agreement and corresponding overbid
and auction procedures, as well as the Purchaser Reimbursable Expenses per the conditions provided in the Bid Procedures Order, to be
paid to Purchaser in the event Purchaser is not the successful bidder at the Auction, if any, of the Purchased Assets.
D. Notwithstanding
any provisions herein to the contrary, Seller and Purchaser both acknowledge and agree that this Agreement is subject to the Bankruptcy
Court’s Final authorization and approval, and upon such Final authorized and approved terms and conditions set forth herein, Purchaser
desires to purchase from Seller, and Seller desires to sell to Purchaser, the Purchased Assets free and clear of Liens, Claims and other
interests (other than Permitted Liens), all as more specifically provided herein and in the Sale Order.
E. Certain
terms used in this Agreement are defined in Section 1.1.
NOW, THEREFORE, in consideration
of the foregoing premises, the mutual representations, warranties and covenants herein contained, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Defined
Terms. As used in this Agreement, the following terms have the meanings set forth below or in the
Sections referred to below:
“Aggregate Purchase
Price” has the meaning set forth in Section 3.1.
“Agreement”
has the meaning set forth in the preamble.
“Allocation”
has the meaning set forth in Section 3.6.
“Alternative
Transaction” means any transaction involving the closing of a sale pursuant to Section 363(b) of the Bankruptcy Code
of all or a material portion of the Business by Seller to a purchaser or purchasers other than Purchaser and/or one or more of its affiliates
at any time during the pendency of the Bankruptcy Case.
“Ancillary Agreements”
has the meaning set forth in Section 4.2.
“Assignment and Assumption
Agreement” has the meaning set forth in Section 8.3(c).
“Assumed Liabilities”
has the meaning set forth in Section 2.4.
“Auction”
has the meaning set forth in Section 6.2(c)(i).
“Avoidance Actions”
mean any and all causes of action to avoid a transfer of property or an obligation incurred by Seller arising under Sections 542, 544,
545, and 547 through and including 553 of the Bankruptcy Code or any other federal, state, or foreign law pertaining to actual or constructive
fraudulent transfer, fraudulent conveyance, or voidable transactions.
“Back-up Termination
Date” means the first to occur of (a) the Outside Date (including, for the avoidance of doubt, any extension thereof pursuant
to the terms of this Agreement), (b) consummation of the transaction with the winning bidder at the Auction, (c) the date on
which the conditions to Closing set forth in Article VII are satisfied or waived, and (d) Purchaser’s receipt of
notice from Seller of the release by Seller of Purchaser’s obligations under Section 6.2(e).
“Bankruptcy Case”
has the meaning set forth in the Recitals.
“Bankruptcy Code”
has the meaning set forth in the Recitals.
“Bankruptcy Court”
has the meaning set forth in the Recitals.
“Bankruptcy Court
Milestones” has the meaning set forth in Section 6.2(d).
“Bankruptcy Expenses”
has the meaning set forth in Section 2.5(f).
“Bid Deadline”
has the meaning set forth in Section 6.2(d)(iv).
“Bid Motion”
has the meaning set forth in Section 6.2(d)(i).
“Bid
Procedures Order” means an order of the Bankruptcy Court, in form and substance reasonably acceptable to Purchaser and
Seller that, among other things, (a) approves and authorizes the payment of the Purchaser Reimbursable Expenses on the terms and
conditions set forth in Section 6.2(a), (b) establishes procedures for the Auction process, the form of which is attached
hereto as Exhibit A, (c) establishes a date for a hearing on the Sale Order, and (d) approves the other terms and
conditions of the bidding procedures attached hereto as Exhibit A.
“Bill of Sale”
has the meaning set forth in Section 8.3(b).
“Business”
has the meaning set forth in the Recitals.
“Business Products”
has the meaning set forth in Section 4.18(a).
“Cash and Cash Equivalents”
means all of Seller’s cash (including petty cash and checks received on the Closing Date), checking account balances, marketable
securities, certificates of deposits, time deposits, bankers’ acceptances, commercial paper, security entitlements, securities accounts,
commodity Contracts, commodity accounts, government securities and any other cash equivalents, whether on hand, in transit, in banks or
other financial institutions, or otherwise held.
“Claims”
has the meaning ascribed by Section 101(5) of the Bankruptcy Code and includes, without limitation, all rights, claims (including
any cross-claim or counterclaim), causes of action, charges, assessments, suits, investigations, litigation, third party actions, arbitral
proceedings or proceedings by or before any Governmental Body or any other person, defenses, debts, demands, damages, judgments, sanctions,
penalties, costs, expenses (including reasonable, actual, out-of-pocket legal fees and expenses), losses, liabilities, offset rights,
setoff rights, recoupment rights, obligations, and liabilities of any kind or nature under contract, at Law or in equity, whatsoever,
whether or not reduced to judgment, whether known or unknown, secured, unsecured, fixed, contingent, matured, unmatured, disputed, undisputed,
liquidated or unliquidated, whether arising prior to or subsequent to the commencement of the Bankruptcy Case, whether under any theory
of successor or transfer liability and whether imposed by agreement, understanding, law or otherwise, and all rights and remedies with
respect thereto.
“Closing”
has the meaning set forth in Section 8.1.
“Closing Date”
has the meaning set forth in Section 8.1.
“Closing Cash Payment”
means the Aggregate Purchase Price less the Deposit.
“COBRA”
means the Consolidated Omnibus Budget Reconciliation Act of 1985.
“Code”
means the United States Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder.
“Collective Bargaining
Agreement” means each Contract with a labor union or labor organization, works council or other similar employee representative,
in each case, covering an Employee who works in the Business.
“Competing Bids”
has the meaning set forth in Section 6.2(b).
“Contracts”
means all purchase orders, sales agreements, sales orders, supply agreements, manufacturing agreements, distribution agreements, insurance
policies, employee or consulting agreements, leases, subleases, licenses (including, for the avoidance of doubt, third-party software
licenses), sublicenses, product warranty or service agreements and other binding commitments, agreements, contracts, instruments, arrangements,
obligations and undertakings of any nature (whether written or oral, and whether express or implied).
“CT Male”
means C.T. Male Associates Engineering, Surveying, Architecture, Landscape Architecture & Geology, D.P.C., Latham, NY.
“Cure Amounts”
means, to the extent applicable, all Liabilities that must be paid and obligations that otherwise must be satisfied under Sections 365
of the Bankruptcy Code, in connection with the assumption by Seller and assignment to Purchaser of any Purchased Contract, Real Property
Lease or Permit. For the avoidance of doubt, notwithstanding anything provided herein to the contrary, no provision herein shall be construed
as an admission or wavier as to the amount of any potential cure amount, or as a representation that any assumption, rejection, or assignment
within the meaning of Section 365 of the Bankruptcy Code has occurred; such assumptions, rejections, or assignments shall be addressed
by order of the Bankruptcy Court (including the Final Sale Order) accordingly, to the extent applicable.
“Customer Credits”
means (a) payments made by specified customers of the Business for (i) products not yet manufactured or delivered to such specified
customers or (ii) services not yet provided to such specified customers; or (b) any credits or amounts due or alleged to be
due from Seller to specified customers of the Business, including for refunds, short-shipments, rebates, allowances or otherwise. For
purposes of this definition, “specified customers” means any customers who have ordered or purchased products or services
from Seller at any time during the 12-month period immediately preceding the Closing Date, or any customers with respect to whom Seller
reasonably believes it will have to issue a credit or refund a payment previously made to Seller.
“Customs
and International Trade Laws” means any domestic Law, license, directive, award or other decision or requirement, including
any amendments, having the force or effect of Law, of any Governmental Body, concerning the transfer, importation, exportation, reexportation
or deemed exportation of products, technical data, technology and/or services, the terms and conduct of transactions, and making or receiving
of payment related to such transfer, importation, exportation, reexportation or deemed exportation.
“Deposit”
has the meaning set forth in Section 3.2.
“Designated Receivables
Account” has the meaning set forth in Section 6.13(c).
“Due Diligence Reports”
has the meaning set forth in Section 6.14.
“Effective Time”
has the meaning set forth in Section 8.1.
“Employee”
has the meaning set forth in Section 4.17(a).
“Employee Benefit
Plans” means each plan, fund, program, agreement, arrangement or scheme (and any amendments thereto) that is at any time sponsored
or maintained by Seller or to which Seller makes or has an obligation to make, contributions providing benefits to the current or former
employees, directors, managers, officers, consultants, independent contractors, contingent workers or leased employees of Seller or the
dependents of any of them (whether written or oral), or in respect of which Seller has any liability or obligation, including (i) each
deferred compensation, bonus, incentive compensation, pension, retirement, employee stock ownership, stock purchase, stock option, profit
sharing or deferred profit sharing, stock appreciation, phantom stock plan and other equity compensation plan, “welfare” plan
(within the meaning of Section 3(1) of ERISA, determined without regard to whether such plan is subject to ERISA), (ii) each
“pension” plan (within the meaning of Section 3(2) of ERISA, determined without regard to whether such plan is either
subject to ERISA or is tax-qualified under the Code), (iii) each severance plan or agreement, and each other plan providing health,
vacation, supplemental unemployment benefit, hospitalization insurance, medical, dental, disability, life insurance, death or survivor
benefits, fringe benefits or legal benefits and (iv) each other employee benefit plan, fund, program, agreement or arrangement; provided,
that, for the avoidance of doubt, in no event shall “Employee Benefit Plans” be deemed to include any regular wages or salary
payable to any Employees of Seller.
“Environmental
Laws” means any applicable Laws: (a) relating to pollution (or the cleanup thereof) or the protection of natural
resources, endangered or threatened species, human health or safety, or the environment (including ambient air (indoor or outdoor), soil,
surface water or groundwater, or subsurface strata); or (b) concerning the presence of, exposure to or the management, manufacture,
use, containment, storage, recycling, reclamation, reuse, treatment, generation, discharge, transportation, processing, production, handling,
disposal or remediation of any Hazardous Materials. The term “Environmental Law” includes, without limitation, the
following (including their implementing regulations and any state analogs): the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amended, inter alia, by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. §§
9601 et seq.; the Solid Waste Disposal Act, as amended, inter alia, by the Resource Conservation and Recovery Act
of 1976 and the Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. §§ 6901 et seq.; the Federal Water Pollution
Control Act of 1972, as amended, inter alia, by the Clean Water Act of 1977, 33 U.S.C. §§ 1251 et seq.; the Toxic
Substances Control Act of 1976, as amended, 15 U.S.C. §§ 2601 et seq.; the Emergency Planning and Community Right-to-Know
Act of 1986, 42 U.S.C. §§ 11001 et seq.; the Clean Air Act of 1966, as amended, inter alia, by the Clean Air Act
Amendments of 1990, 42 U.S.C. §§ 7401 et seq.
“Environmental Liabilities”
has the meaning set forth in Section 2.4(b).
“ERISA”
means the United States Employee Retirement Income Security Act of 1974, as amended, and the regulations promulgated thereunder.
“ERISA Affiliate”
means all employers (whether or not incorporated) that would be treated together with Seller or any of its affiliates as a “single
employer” within the meaning of Section 414 of the Code or Section 4001 of ERISA.
“ESA” has
the meaning set forth in Section 6.14(b).
“Escrow Agent”
means Morris Anderson & Associates, Ltd., 55 West Monroe Street, Suite 2350, Chicago, IL 60603.
“Excluded Assets”
has the meaning set forth in Section 2.3.
“Excluded Contracts”
has the meaning set forth in Section 2.3(c).
“Execution Date”
has the meaning set forth in the preamble.
“FDA” means
the U.S. Food and Drug Administration.
“Final”
shall mean an order as entered on the docket as to which the time to appeal or petition for certiorari has expired and as to which no
appeal or petition for certiorari has been timely filed, or as to which any appeal or petition for certiorari that has been filed has
been resolved by the highest court to which the order was timely appealed or from which certiorari was sought.
“Financial Statements”
has the meaning set forth in Section 4.9.
“GAAP”
means United States generally accepted accounting principles in effect on the date hereof.
“Governmental Body”
means any domestic or foreign federal, state or local government, governmental or regulatory body thereof, political subdivision thereof,
any agency, authority, board, bureau or department thereof or any court or arbitrator thereof, including the Bankruptcy Court.
“Hazardous Material”
means (A) any petroleum, waste oil, crude oil, asbestos, urea formaldehyde per- and polyfluoroalkyl substances (PFAS), or polychlorinated
biphenyl; (B) any “hazardous substance,” “pollutant,” “contaminant,” “hazardous waste,”
“regulated substance,” “hazardous chemical” or “toxic chemical” as designated, listed or defined in
any applicable Environmental Law; (C) any other substance or material (regardless of physical form) that is subject to any applicable
Environmental Law.
“Initial Overbid”
subject to Final Bankruptcy Court authorization and approval and pursuant to the terms and conditions of the Bid Procedures Order, shall
be equal to a sum greater than or equal to 5.5% of the Initial Stalking Horse Purchase Price.
“Initial Stalking
Horse Purchase Price” means the sum of: (a) Three Million One Hundred Fifty Thousand Dollars ($3,150,000), plus
(b) an amount equal to ninety-five percent (95%) of the aggregate total of the Receivables less the Zero Rated Receivables as of
the Closing Date.
“Intellectual Property”
means all domestic and foreign letters patent, patents, patent applications, patent licenses, software licenses, know-how licenses, trade
secrets, trade names, trademarks, copyrights, service marks, trademark registrations and applications, service mark registrations and
applications, and copyright registrations and applications.
“Inventory”
has the meaning set forth in Section 2.2(b).
“IP Assignment Agreement”
has the meaning set forth in Section 8.3(e).
“Joint Written Direction”
means a written direction to the Escrow Agent executed by Purchaser and Seller.
“Law”
means any law, statute, regulation, rule or Order of, administered or enforced by or on behalf of, any Governmental Body, or common
law.
“Legal
Proceeding” means any claim, demand, litigation, cause of action, audit, dispute, review, investigation, hearing, charge, indictment,
complaint, petition, suit or other judicial or administrative proceeding, at law or in equity, by or before any Governmental Body or arbitration
or similar dispute resolution proceeding.
“Liabilities”
means any and all debts, indebtedness, Claims, Liens, losses, damages, assessments, commitments, undertakings, deficiencies, fines, fees,
expenses, costs, royalties, guaranties, adverse claims, demands, liabilities (including civil fines, and any any liabilities that result
from, arise out of, or relate to any tort or product liability claim), charges, obligations, causes of action, penalties, sanctions of
every kind and character (including reasonable fees and expenses of attorneys, technical experts and expert witnesses), judgments, proceedings,
duties, responsibilities and obligations of any nature whatsoever, whether accrued or unaccrued, fixed, vested, absolute or contingent,
known or unknown, disclosed or undisclosed, express or implied, primary or secondary, disputed or undisputed, liquidated or unliquidated,
direct or indirect, asserted or unasserted, absolute or contingent, matured or unmatured, due or to become due, or determined or determinable
or otherwise, and whenever and however arising, including those arising under any Law, including any Environmental Law, equity, contract,
tort, strict liability or voluntary settlement or otherwise and including all costs and expenses relating thereto (including all fees,
disbursements and expenses of legal counsel, experts, engineers and consultants and costs of investigation), and in all cases without
regard to when sustained, incurred or asserted or when the relevant events occurred or circumstances existed.
“Liens”
means, whether imposed by Law, Contract or otherwise, all liens, whether consensual or statutory (including mechanic’s, materialman’s,
carrier’s, repairer’s, contractor’s and other similar liens arising under applicable law), replacement liens, adequate
protection liens or other liens granted under Sections 361, 363 or 364 of the Bankruptcy Code, claims, mortgages, deeds of trust, hypothecations,
pledges, security interests or similar interests, charges, leases, subleases, options, rights of setoff, netting or deduction, restrictions,
and encumbrances of any nature, including without limitation, preemptive rights, rights of first refusal, right of first offer, licenses,
sublicenses, right of use or possession, defect or objection liens, conditional and installment sales agreements, title retention agreements
or other similar restrictions or liens, voting trusts or agreements, transfer restrictions, easements, restrictive covenants, encroachments,
servitudes, or restrictions of any kind and other title or interest retention arrangements, reservations, or limitations of any nature
whatsoever, and including without limitation those charges or interests in property within the meaning of “lien” under Bankruptcy
Code § 101(37) or any other limitation, restriction or interest that constitutes an “interest” for the purposes of Bankruptcy
Code § 363(f).
“M&A Qualified
Beneficiaries” has the meaning set forth in Section 6.10(h).
“Material Contracts”
has the meaning set forth in Section 4.13.
“Medical Device”
has the meaning set forth in Section 4.8(a).
“Monetary Lien”
means a deed of trust, mortgage, security deed, lien, monetary judgment, security interest, past due tax or assessment or other similar
encumbrance of a monetary nature against the Owned Real Property.
“Multiemployer Plan”
has the meaning set forth in Section 4.16(b).
“Necessary Consent”
has the meaning set forth in Section 2.6.
“New York Facility”
means the facility located at the Owned Real Property.
“Non-Assignable Asset”
has the meaning set forth in Section 2.6.
“Offer
Employee” has the meaning set forth in Section 6.10(b).
“Order”
means any decree, order, injunction, ruling, writ, judgment, and consent of or by any Governmental Body.
“Ordinary Course
of Business” means the operation of the Business by Seller in the usual and ordinary course in a manner substantially similar
to the manner in which Seller has been operating during the past six (6) months prior to the Petition Date with the assumption that
Seller had sufficient cash to operate.
“Organizational
Documents” means (i) with respect to any corporation, its certificate or articles of incorporation, its bylaws,
and any shareholder or stockholder agreement, (ii) with respect to any limited partnership, its certificate of limited partnership
and its partnership agreement, (iii) with respect to any general partnership, any statement of partnership and its partnership agreement,
(iv) with respect to any limited liability company, its certificate of formation or articles of organization and its operating agreement,
(v) with respect to any other form of entity, any charter or similar document adopted or filed in connection with the creation, formation
or organization of a person and any agreement amongst its members, (vi) any documents equivalent to any of the foregoing applicable
to non-U.S.jurisdictions, and (vii) any amendments, side letters, modifications, or other arrangements with respect to any of the
foregoing.
“Outside Date”
has the meaning set forth in Section 9.1(d).
“Owned Real Property”
has the meaning set forth in Section 2.2(p).
“Permits”
has the meaning set forth in Section 2.2(f).
“Permitted Liens”
means (a) Liens for Taxes that are not due and payable so long as all such Liens for Taxes arising prior to Closing shall have been
extinguished through payment by Seller on or prior to Closing; and (b) with respect to the Owned Real Property, (i) all restrictions
and encumbrances of record, (ii) all general exceptions and those title exceptions set forth in Schedule B – Section 2
of the title commitment issued by SMPR Title Insurance Agency, Inc. on behalf of Fidelity National Title Insurance Company, Order
No. M085148 with an effective date of January 9, 2023, as updated after receipt and review of a current ALTA survey prepared
by CT Male, and (c) all other currently existing Liens that will be removed or released on or prior to Closing, including through
the operation of the Sale Order.
“Personal Property”
has the meaning set forth in Section 2.2(c).
“Petition Date”
has the meaning set forth in the Recitals.
“Prepaid Expenses”
means all deposits (including customer deposits and security deposits (whether maintained in escrow or otherwise)) for rent, electricity,
telephone bonds or other sureties or other expenses (including all prepaid rent and all prepaid charges, expenses and rent under any personal
property leases), advances, prepaid expenses, prepayments, rights under warranties or guarantees, vendor rebates and other refunds of
every kind and nature (whether or not known or unknown or contingent or non-contingent),except that professional fee retainers and prepaid
deposits related thereto shall not be included in the definition of “Prepaid Expenses.” For the avoiadance of doubt, “Prepaid
Expenses” shall not include any such deposits, expenses, advancemens, prepaid expenses, prepayments, rights under warranties or
guarantees, vendor rebates and other refunds solely applicable to the St. Louis Business.
“Purchased Assets”
has the meaning set forth in Section 2.2.
“Purchased Contracts”
has the meaning set forth in Section 2.2(e).
“Purchased Intellectual
Property” has the meaning set forth in Section 2.2(d).
“Purchaser”
has the meaning set forth in the preamble.
“Purchaser Material
Adverse Effect” means any effect, event, change, condition, state of facts, occurrence or circumstance (regardless of whether
such effect, event, change, condition, state of facts, occurrence or circumstance constitutes a breach of any representation, warranty
or covenant of Purchaser hereunder) that has had or would reasonably be expected to have, individually or when considered together with
any other effect, event, change, condition, state of facts, occurrence or circumstance, a material and adverse effect on the ability of
Purchaser to consummate the transactions contemplated by this Agreement and the Ancillary Agreements to which it is a party or to perform
its obligations hereunder or thereunder.
“Purchaser
Reimbursable Expenses” means, subject to Purchaser’s payment of the Seller Reimbursable Expenses, the reasonable, documented
actual costs and expenses incurred and paid by Purchaser with respect to Purchaser’s preparation of the Due Diligence Reports (the
fees and expenses arising out of or in connection to the preparation and presentation of the said due diligence not to exceed 2.5% of
the Aggregate Purchase Price), and the reasonable, documented actual costs and expenses incurred and paid by Purchaser for solicitor and
attorney fees (said solicitor and attorney fees not to exceed 1% of the Aggregate Purchase Price), which said total Purchaser Reimbursable
Expenses shall not exceed 3.5% of the Aggregate Purchase Price. For the avoidance of doubt, the Purchaser Reimbursable Expenses
shall not include (i) the actual costs and expenses incurred and paid by Purchaser with respect to preparation of any due diligence
reports for non-Purchased Assets; and/or (ii) the actual costs and expenses incurred and paid by Purchaser with respect to preparation
of any due diligence reports for which Purchaser has already received reimbursement.
“Receivables”
has the meaning set forth in Section 2.2(a).
“Retained Liabilities”
has the meaning set forth in Section 2.5.
“Retained Records”
has the meaning set forth in Section 2.3(h).
“Sale
Order” means one or more orders of the Bankruptcy Court , substantially in the form attached hereto as Exhibit B,
with any changes in form and substance reasonably satisfactory to Seller and Purchaser, (a) approving (i) this Agreement and
the execution, delivery, and performance by Seller of this Agreement and the Ancillary Agreements; (ii) the sale of the Purchased
Assets to Purchaser free and clear of all Claims and Liens, other than any Permitted Liens or any Assumed Liabilities; (iii) the
assumption of the Assumed Liabilities by Purchaser on the terms set forth herein; and (iv) the assumption and assignment to Purchaser
of the Purchased Contracts that are executory contracts and unexpired leases on the terms set forth herein; (b) determining that
Purchaser is a good faith purchaser; and (c) providing that the Closing will occur in accordance with the terms and conditions hereof.
“Secured
Lender” shall mean Summit Financial Resources, LLC, a Delaware limited liability company and successor in interest to
Summit Financial Resources, L.P., a Hawaiian limited partnership, or its successor in interest, Sterling Commercial Credit, LLC, a Delaware
limited liability company, or any other successor financial institution who, at the time, has provided financing to Seller as a secured
lender.
“Seller”
has the meaning set forth in the preamble.
“Seller Fundamental
Representations” means the representations and warranties of Sellers set forth in Section 4.1 (Organization and
Power), Section 4.2 (Authorization and Enforceability), Section 4.3 (No Conflicts) and Section 4.6
(Brokers’ Fees).
“Seller Material
Adverse Effect” means any effect, event, change, condition, state of facts, occurrence or circumstance (regardless of whether
such effect, event, change, condition, state of facts, occurrence or circumstance constitutes a breach of any representation, warranty
or covenant of Seller hereunder) that has had or would reasonably be expected to have, individually or when considered together with any
other effect, event, change, condition, state of facts, occurrence or circumstance (a) a material adverse effect on or a material
adverse change in or to the Business or the Purchased Assets or the condition (financial or otherwise), assets, Liabilities, prospects,
or operations of the Business or the Transferred Assets, taken as a whole; (b) a material adverse effect on or a material adverse
change in or to the ability of Seller to consummate the transactions contemplated by this Agreement and the Ancillary Agreements to which
it is a party or to perform its obligations hereunder or thereunder; or (c) the effect of preventing or delaying the transactions
contemplated hereby; provided, that the following effects, events, changes, conditions, state of facts, occurrences or circumstances
will not constitute a Seller Material Adverse Effect, (i) actions or omissions taken or not taken by or on behalf of Seller in compliance
with the Bankruptcy Code or an order from the Bankruptcy Court or (ii) the fact that Seller will be operating the Business as a debtor-in-possession
under the Bankruptcy Code.
“Seller’s Disclosure
Schedule” means the disclosure letter being delivered by Seller to Purchaser contemporaneously with the execution of this Agreement.
“Seller
Reimbursable Expenses” shall mean the reasonable, documented actual costs and expenses incurred and paid by Seller with respect
to preparation and production of any of the Due Diligence Reports for the purchase of the Purchased Assets (the reimbursable amount
of the fees arising out of or in connection with the Due Diligence Reports not to exceed 2.5% of the Aggregate Purchase Price). The Seller
Reimbursable Expenses shall be paid as follows: (i) to Seller from the sale proceeds at Closing; or (ii) to Seller by offset
against the Purchaser Reimbursable Expenses to the extent the Purchaser Reimbursable Expenses is triggered pursuant to Section 6.2(a) herein.
“St. Louis Business”
means Seller’s business of manufacturing and selling healthcare products, equipment and services from its facility located at the
St. Louis Facility.
“St. Louis Facility”
means Seller’s facility located at 1720 Sublette Avenue, St. Louis, Missouri 63110.
“Subsequent Overbids”
subject to Final Bankruptcy Court authorization and approval and pursuant to the terms and conditions of the Bid Procedures Order, shall
mean the bid increments after the Initial Overbid, which shall be no less than 1.9% of the Initial Stalking Horse Purchase Price.
“Tax Return”
any return, report or statement required to be filed in respect of any Tax (including any schedule and attachments thereto, and any amendment
thereof) including, any information return, election, claim for refund, amended return or declaration of estimated Tax, and including,
where permitted or required, combined, consolidated or unitary returns for any group of entities that includes Seller or any of its affiliates.
“Taxes”
means (A) any and all federal, state, local or foreign taxes, charges, fees, imposts, levies or other assessments, including, all
net income, gross receipts, capital, sales, use, ad valorem, value added, transfer, franchise, profits, inventory, capital stock, license,
withholding, payroll, employment, social security, unemployment, excise, severance, stamp, occupation, property and estimated taxes, customs
duties, fees, assessments and charges of any kind whatsoever; (B) all interest, penalties, fines, additions to tax or additional
amounts imposed by any taxing authority in connection with any item described in clause (A); and (C) any liability in respect
of any items described in clause (A) or (B) payable by reason of contract, assumption, transferee liability, operation
of law, Section 1.1502-6(a) of the United States Treasury regulations promulgated under the Code (or any predecessor or successor
thereof or any analogous or similar provision under law) or otherwise.
“Title Commitment”
has the meaning set forth in Section 2.2(p).
“Title Company”
means SMPR Title Insurance Agency, Inc., as agent for Fidelity National Title Insurance Company.
“Title Policy”
has the meaning set forth in Section 7.3(i).
“Transfer
Documents” has the meaning set forth in Section 8.3(j).
“Transferred Employee”
has the meaning set forth in Section 6.10(b).
“Transition
Agreement“ means a transition agreement in form and substance reasonably acceptable to Purchaser, by and between or among, as
applicable, Purchaser and the purchaser or purchasers of the assets of the St. Louis Business pursuant to which, for a period of six (6) months
following the Closing (at actual out-of-pocket costs plus, if warranted, a reasonable allocation of overhead) (a) such purchaser
or purchasers of the assets of the St. Louis Business will, as applicable, continue the manufacturing of inventory for, and the provision
of services, technology and assets to, Purchaser in substantially the same manner as provided by Seller out of its St. Louis Facility
prior to Closing, including (i) the use of Intellectual Property, (ii) for a period of ninety (90) days following the Closing
Date, manufacturing and delivering, or causing to be manufactured and delivered, Business Products to Purchaser of the same quality manufactured
by Seller immediately prior to the Closing (which such obligation shall be determined based upon actual manufacture of Business
Products by Seller over the twelve (12) months immediately preceding the Closing),
and (iii) the use of software, servers, systems, computers and similar equipment with respect to Seller’s accounting system,
payroll system, inventory tracking system, purchase and sales orders and general business operations; and, if applicable (b) Purchaser
will provide and make available to the purchaser or purchasers of the assets of the St. Louis Business certain services, technology and
assets forming part of the Purchased Assets that are reasonably necessary for the operation of such assets in substantially the same manner
conducted by Seller immediately prior to Closing.
“Vendor Avoidance
Actions” mean Avoidance Actions pursuant to 11 U.S.C. § 547 against pre-Petition Date vendors of Seller (i) for which
such claims have not otherwise been resolved, waived, or settled pursuant to a pre-Closing order of the Court and (ii) for which
the Seller has entered into a transaction within 90 days of the Petition Date or after the Petition Date.
“WARN Act”
means the Worker Adjustment and Retraining Notification Act, as amended, and every state and local Law regarding the same or similar subject
matter.
“Workers”
has the meaning set forth in Section 2.2(g).
“Zero
Rated Receivables” means, without duplication, (i) all Receivables more than 90 days old as of the Closing Date;
(ii) all Receivables less than 90 days old as of the Closing Date but where the Seller does not have a reasonable expectation of
payment (howsoever arising); and (iii) all Receivables reserved for bad or doubtful accounts as of the Closing Date.
Section 1.2 Other
Interpretive Provisions. As used in this Agreement the following words or phrases have the following meanings: (i) “affiliate”
means, in respect of any specified person, any other person that, directly or indirectly through one or more intermediaries, controls,
is controlled by or is under common control with, such specified person; (ii) “business day” means any day other
than Saturday, Sunday or any day on which The Federal Reserve Bank of St. Louis, Missouri is closed for business; (iii) for purposes
of the definition of “affiliate,” “control” when used in respect of any person means the power to direct
the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or
otherwise (and “controlling” and “controlled” have meanings correlative thereto); (iv) “day”
means a calendar day; (v) “dollar” or “$” means lawful currency of the United States; (vi) “hereby,”
“herein,” “hereof,” “hereto,” “hereunder,” “herewith”
and words of similar import refer to this Agreement as a whole and not to any particular provision hereof; (vii) “include,”
“including” or derivatives thereof means “including without limitation”; (viii) “knowledge
of Seller” means the actual knowledge of any one of Dan Dunn, Greg Mueller or Tom Gerhold, in each case after reasonable inquiry;
(ix) “knowledge of Purchaser” means the actual knowledge of Hash Poormand; (x) “or”
means “and/or”; (xi) “person” means any individual, corporation, joint venture, partnership, limited
partnership, limited liability company, trust, unincorporated association or other form of business or legal entity or Governmental Body;
and (xii) “U.S.” means the United States of America.
ARTICLE II
PURCHASE AND SALE
Section 2.1 Purchase
and Sale of Assets. On the terms and subject to the conditions hereof, including Final Bankruptcy Court authorization and approval,
at the Closing, Purchaser shall purchase, acquire and accept from Seller, and Seller shall sell, assign, transfer, convey, and deliver,
or cause to be sold, assigned, transferred, conveyed and delivered, to Purchaser, free and clear of all Claims, Liens (other than Permitted
Liens) and any other interests, the Purchased Assets.
Section 2.2 Purchased
Assets. The “Purchased Assets” shall consist of all of Seller’s right, title and interest in and to the following
assets, properties, rights and interests of every kind and description, wherever located, tangible and intangible, whether real or personal
or mixed of Seller (other than the Excluded Assets):
(a) as
of the Closing Date, all accounts and/or notes receivable and other such claims of Seller for payment against its customers for goods
supplied and/or services rendered incident to the operation of the Business (collectively the “Receivables”);
(b) as
of the Closing Date, all inventories of goods, equipment, raw materials, components, packaging materials, supplies, and samples related
thereto that are used or held for use in the conduct of the Business, in each case wherever located (including any of the foregoing in
the possession of manufacturers, suppliers, customers, dealers or others and any of the foregoing in transit and any of the foregoing
as set forth on Section 2.2(b) of the Seller’s Disclosure Schedule) (collectively, “Inventory”);
(c) all
machinery, equipment, tools, dies, jigs, molds, patterns, computer hardware, furniture, furnishings, supplies, spare parts in respect
of any of the foregoing and other tangible personal property and movable assets used or held for use in the conduct of the Business that
do not constitute Inventory, in each case wherever located (including that which is set forth on Section 2.2(c) of Seller’s
Disclosure Schedule) (collectively, “Personal Property”);
(d) all
right, title, and interest in and to all of Seller’s currently existing Intellectual Property that is used or held for use in the
operation of the Business by Seller, including those listed in Section 2.2(d) of Seller’s Disclosure Schedule,
and all trade secrets, technical knowledge, know-how, and other confidential proprietary information and related ownership, use, and other
rights of Seller used in the conduct of the Business, including the right to sue for, collect and recover damages, profits and any other
remedy in connection therewith, for past, present or future infringement, dilution, misuse, breach, default, misappropriation or other
violation related to any of the foregoing assets, but specifically excluding the name “Allied Healthcare Products” and all
derivatives thereof that include the name “Allied Healthcare” (collectively, the “Purchased Intellectual Property”);
provided, that in the event that the Purchaser purchases all or substantially all of the assets used with the St. Louis Business, prior
to, contemporaneous with, or after the Closing Date, the Purchased Intellectual Property in this Agreement and the purchased Intellectual
Property under such separate agreement in aggregate shall include any and all of Seller’s Intellectual Property currently existing
throughout the world used in the conduct of the Business or St. Louis Business, without exclusion, including the name “Allied Healthcare
Products” and all derivatives thereof that include the name “Allied Healthcare”;
(e) subject
to Section 2.6, all Contracts relating to the Business or the Purchased Assets to which Seller is a party that are listed
in Section 2.2(e) of Seller’s Disclosure Schedule and are specifically assumed by Purchaser (collectively, the
“Purchased Contracts”); provided, that (i) Purchaser may amend or revise Section 2.2(e) of
Seller’s Disclosure Schedule in order to add any Contract (to the extent relating to the Business or the Purchased Assets) to, or
eliminate any Contract from, such section at any time during the period commencing on the Execution Date and ending at the date that is
two business days before the Closing Date, and Seller shall within one business day after written notice from Purchaser of its intent
to add a Contract to the list of Purchased Contracts set forth on Section 2.2(e) of Seller’s Disclosure Schedule
serve a supplemental notice of contract assumption on each of the counterparties to such Contracts in accordance with the Bid Procedures
Order and provide a copy of the same to Purchaser; (ii) automatically upon the addition of any Contract to Section 2.2(e) of
Seller’s Disclosure Schedule, such Contract shall be a Purchased Contract for all purposes of this Agreement and (iii) automatically
upon the removal of any Contract from Section 2.2(e) of Seller’s Disclosure Schedule, such Contract shall be an
Excluded Asset for all purposes of this Agreement, and no Liabilities arising thereunder shall be assumed or borne by Purchaser;
(f) subject
to Section 2.6, all existing licenses, permits, clearances, registrations, certificates, accreditations, approvals, and similar
rights issued by any Governmental Body that are used or held for use in the conduct of the Business, all of which are listed in Section 2.2(f) of
Seller’s Disclosure Schedule (collectively, “Permits”);
(g) all
books and records of Seller to the extent relating to the Business or the Purchased Assets (but excluding the Retained Records), including
all books, records, files, data, correspondence and other information relating to employees, consultants, independent contractors, contingent
workers and leased employees who have provided services to the Seller (collectively, “Workers”), purchase or sale information,
advertising, marketing, inventory, sales, customers, suppliers, vendors, and financial, accounting and operations of the Business;
(h) the
non-exclusive right and irrevocable, worldwide, royalty-free, sub-licensable license (an equivalent license may be granted to the purchaser(s) of
Seller’s other business segments) to use, make, have made, sell, have sold, import, export, have imported and have exported any
and all of Seller’s Intellectual Property used or held in the operation of the Business by Seller but not included in the Purchased
Intellectual Property, but only to the extent such use is reasonably necessary or beneficial to operate and carry on the Business in the
manner currently conducted by Seller;
(i) the
non-exclusive right and irrevocable, worldwide, royalty-free, sub-licensable license (an equivalent license may be granted to the purchaser(s) of
Seller's other business segments) for a one (1) year period starting on the Closing Date and ending on the one (1) year anniversary
of the Closing Date to carry on the Business under the name of “Allied Healthcare Products” or any name including the words
“Allied Healthcare”;
(j) all
Prepaid Expenses related to the Business or the Purchased Assets;
(k) all
rights, claims or causes of action of Seller against any party arising out of events occurring prior to the Closing related to the Business
or the Purchased Assets, including, but not limited to, arising out of events occurring prior to the commencement of the Bankruptcy Case,
and including, but not limited to, any rights under or pursuant to any and all warranties, licenses, representations and guarantees made
by suppliers, (sub)manufacturers and contractors relating to products, components or materials sold, or services provided, to Seller,
in each case, relating to the Business or the Purchased Assets; provided, however, that for the avoidance of doubt, all Avoidance Actions
other than Vendor Avoidance Actions are Excluded Assets;
(l) all
information technology assets, and related software systems used in the Business, wherever located (including at the Leased Real Property)
that are (i) owned or purported to be owned by the Seller for use in the Business; or (ii) licensed to, subscribed to or leased
for use by Seller in the Business and governed by any Purchased Contract, or any off the shelf or clickwrap agreement, to the extent assignable;
(m) to
the extent not prohibited by Law and not subject to attorney-client privilege or other work product privilege, all documents and other
books and records, correspondence (including electronic mail communications), all vendor files, information and data, and all customer
sales, regulatory, marketing, advertising, packaging and promotional materials, files, data, software (whether written, recorded or stored
on disk, film, tape or other media, and including all computerized data), drawings, engineering and manufacturing data and other technical
information and data, and all other business and other records of Seller, in each case, to the extent related to the Business or any Purchased
Asset;
(n) all
telephone and facsimile numbers of the Business and all records of email addresses of customers, suppliers and service providers of the
Business;
(o) except
as set forth in Section 2.3(n), all rights, claims and benefits (including all insurance proceeds) under or arising out of
all insurance policies relating to the Business or any of the Purchased Assets or Assumed Liabilities, to the extent assignable;
(p) the
improved real property known and numbered as 42 New Street, Town of Stuyvesant, Columbia County, New York including all adjacent parcels
of land owned in fee by Seller on the Closing Date, as more specifically set forth on Section 2.2(p) of Seller’s
Disclosure Schedule, together with all appurtenant easements thereunto and all buildings, structures, fixtures, and improvements located
thereon, and all existing material licenses, permits, certificates and approvals relating to the New York Facility, free of Monetary Liens
and all other Liens which may render title to such real property uninsurable, except for Permitted Liens and such liens and encumbrances
which shall be satisfied at Closing (the “Owned Real Property”); for the avoidance of doubt, the Owned Real Property
will be taken subject to the Brownfield Cleanup Agreement, Index No. C411020-06-20, dated November 2, 2020 and those other
Contracts specifically identified in Section 2.2(e) Seller’s Disclosure Schedule as being applicable to the Owned
Real Property, and subject to the all general exceptions and those title exceptions set forth in Schedule B – Section 2 of
the title commitment issued by the Title Company, Order No. M085148 with an effective date of January 9, 2023 (the “Title
Commitment”), as updated after receipt and review of a current ALTA survey prepared by CT Male, associated with the Owned Real
Property;
(q) all
rights to claim New York State Brownfield Cleanup Program tax credits based on the costs that Seller has incurred to the Closing Date,
to the extent permitted by Law;
(r) all
goodwill and other intangible assets related to the Purchased Assets or the Business;
(s) all
Vendor Avoidance Actions related to the Business and the Purchased Assets; and
(t) except
to the extent listed as an Excluded Asset, any other assets and properties of Seller, wherever located, used or held for use by Seller
to the extent relating to the Business or the Purchased Assets, of every kind and description, whether real, personal or mixed, tangible
or intangible.
Section 2.3 Excluded
Assets. Notwithstanding any other provision of this Agreement to the contrary, at the Closing, Seller shall retain,
Purchaser shall not acquire, and the Purchased Assets shall not include, any right, title or interest in the following assets, properties
and interests of Seller (collectively, “Excluded Assets”):
(a) all
inventory that has been sold, transferred, consumed or otherwise disposed of by Seller prior to the Closing, in each case in the Ordinary
Course of Business and Section 6.4;
(b) (i) all
inventory solely with respect to the operation of the St. Louis Business, wherever located, and (ii) all machinery, equipment, tools,
dies, jigs, molds, patterns, computer hardware, furniture, furnishings, supplies, spare parts in respect of any of the foregoing and other
tangible personal property and movable assets located at the St. Louis Facility and used solely with respect to the operation of
the St. Louis Business (other than that which is covered by Section 2.2(b) or Section 2.2(c) (including
Section 2.2(c) of Seller’s Disclosure Schedule);
(c) all
Contracts not identified on Section 2.2(e) of Seller’s Disclosure Schedule as in effect immediately prior to the
Closing (collectively, the “Excluded Contracts”);
(d) all
Contracts that have terminated or expired prior to the Closing in the Ordinary Course of Business consistent with past practice and Section 6.4;
(e) subject
to the provisions of Section 2.2(i), the name of “Allied Healthcare Products” or any name including the words
“Allied Healthcare”;
(f) subject
to the provisions of the Transition Agreement (if applicable) and Sections 2.2(h) and 2.2(l), all Intellectual Property and
other intangible assets (other than the Purchased Intellectual Property) used solely with respect to the St. Louis Business;
(g) all
of Seller’s tax deposits, refunds and other similar credits or payments of any kind, other than any New York State Brownfield Cleanup
Program tax credits set forth in Section 2.2(p);
(h) Seller’s
Tax Returns and reports, corporate seal, minute books, charter documents, stock ledgers, and such other books and records as pertain to
the organization, existence, or share capitalization of Seller, and all books, records, agreements and other documents pertaining solely
to the St. Louis Business (collectively, “Retained Records”) and duplicate copies of such records included in the Purchased
Assets as are necessary to enable Seller to file its Tax Returns and reports, and any other records or materials relating to Seller generally
and not involving or relating to the Purchased Assets or the Business;
(i) all
rights, claims, causes of action and credits to the extent relating to any Excluded Asset or Retained Liabilities, including any such
item to the extent arising under any warranty, guarantee, indemnity or similar right in favor of Seller in respect of an Excluded Asset
or Retained Liabilities;
(j) Seller’s
rights arising out of or relating to this Agreement or the transactions contemplated hereby;
(k) all
Employee Benefit Plans of Seller;
(l) all
Cash and Cash Equivalents of Seller;
(m) all
deposits with respect to legal, accounting, financial advisory, valuation and investment banking fees and expenses incurred by
or on behalf of Seller;
(n) (i) Seller’s
insurance policies and any prepaid premiums with respect thereto, specifically including any D&O insurance policies and rights, claims,
and benefits under such D&O policies, (ii) any claims for the return of unused premiums, and (iii) all rights, claims, and
benefits under Seller’s insurance policies to the extent relating to any Excluded Assets or Retained Liabilities;;
(o) any
other asset or property of Seller listed on Section 2.3(o) of Seller’s Disclosure Schedule;
(p) all
Avoidance Actions other than Vendor Avoidance Actions;
(q) all
workers’ compensation deposits and other deposits and retentions with insurance companies; and
(r) the
Zero Rated Receivables.
Section 2.4 Assumed
Liabilities. Notwithstanding any other provision of this Agreement to the contrary, Purchaser shall not assume any Liabilities of
Seller, including, without any limitation, any Liabilities arising out of or otherwise relating to the Business or the Purchased Assets
prior to the Closing, except for the following (collectively, “Assumed Liabilities”):
(a) all
Liabilities arising under the terms of each Purchased Contract, solely to the extent arising after the Closing Date, but excluding any
Liabilities arising out of or related to any breach or default thereof occurring at or prior to the Closing or arising out of any event
or circumstance occurring at or prior to the Closing which, with the delivery of notice, lapse of time or both, would constitute a breach
or default thereof;
(b) all
Liabilities of Seller to investigate and remediate the presence of Hazardous Materials in, on, under or below the Owned Real Property
to the extent arising under Environmental Laws, whether the disposal or other release of such Hazardous Materials occurred before
or after the Closing, including those Liabilities set forth on Section 2.4(b) of Seller’s Disclosure Schedule (“Environmental
Liabilities”); for the avoidance of doubt, the assumed Environmental Liabilities include only conditions on, in, under and below,
or migrating to or from the Owned Real Property, and do not include any Seller’s Liabilities, whatever the same may be, to third
parties associated with Seller’s arrangement at any time for the management and/or off-site treatment, storage and/or disposal of
any Hazardous Material;
(c) any
and all real property taxes and assessments assessed and/or levied upon the Owned Real Property from and after the Closing; and
(d) all
Liabilities set forth on Section 2.4(d) of Seller’s Disclosure Schedule.
Section 2.5 Retained
Liabilities. Seller acknowledges and agrees that pursuant to the terms and provisions of this Agreement, Purchaser will not assume,
or in any way be liable or responsible to pay, perform or otherwise discharge, any Liability of Seller (including Liabilities relating
to the pre-petition or post-petition operation of the Business, the Excluded Assets or to the Purchased Assets), whether relating to or
arising out of the Business, the Excluded Assets or the Purchased Assets or otherwise, other than the Assumed Liabilities (collectively,
the “Retained Liabilities”). Without limiting the preceding sentence, for the avoidance of doubt, Seller shall remain
responsible for, and Purchaser shall not assume and hereby disclaims any Liability to pay, perform or otherwise discharge any of the Retained
Liabilities, including all of the following Liabilities of Seller (each of which shall constitute a Retained Liability):
(a) all
Liabilities arising out of or related to the Excluded Assets;
(b) all
Liabilities for Taxes of Seller that are attributable to any period, or portion thereof, before or after the Closing Date or the transfer
of the Purchased Assets from Seller to Purchaser;
(c) all
Liabilities for Taxes in respect of the Purchased Assets that are attributable to any period, or portion thereof, before the Closing Date;
(d) all
Liabilities (other than the Environmental Liabilities) incurred in respect of or attributable to the Business or ownership or operation
of the Purchased Assets prior to the Closing, or Liabilities from which the Purchased Assets and Purchaser are discharged, released or
otherwise cleared as of the Closing in accordance with the Sale Order;
(e) all
Liabilities arising under or related to pension withdrawal liability that are based on or attributable to Seller’s or an ERISA Affiliate’s
obligation to contribute to a Multiemployer Plan on or prior to the Closing Date, or that are based on or attributable to any other facts,
occurrences or conditions first arising or existing on or prior to the Closing Date;
(f) with
the exception of Seller Reimbursable Expenses, all Liabilities in respect of any costs, fees and expenses (including all legal, accounting,
financial advisory, valuation, investment banking and other third-party advisory or consulting fees and expenses) incurred by or on behalf
of Seller in connection with or arising from the Bankruptcy Case or the transactions contemplated by this Agreement, the Ancillary Agreements
and each other agreement, document or instrument contemplated hereby and thereby (the “Bankruptcy Expenses”);
(g) all
Liabilities (i) existing prior to the filing of the Bankruptcy Case under the Bankruptcy Case or (ii) incurred subsequent to
the filing of the Bankruptcy Case and prior to the Closing;
(h) all
Liabilities of Seller under this Agreement, the Ancillary Agreements and each other agreement, document or instrument contemplated hereby
and thereby, or any Contract entered into in connection herewith or therewith;
(i) all
Liabilities to the extent arising out of or related to (i) the breach, performance, or non-performance by Seller prior to the Closing
under any Contract, and (ii) any Cure Amounts resulting from the assumption and assignment of the Purchased Contracts by Seller
to Purchaser;
(j) all
Liabilities (other than Environmental Liabilities) arising out of, relating to or in respect of any Hazardous Material-containing waste
generated prior to the Closing by or in association with Seller’s or any bankruptcy trustee’s operation or administration
of the Business or the Purchased Assets, including any arrangement for the proper management and/or off-site treatment, storage and/or
disposal thereof;
(k) all
Cure Amounts;
(l) all
Liabilities arising out of, relating to or in respect of (i) the employment or performance of services, or termination of employment
or services of any individual on or before the Closing Date, (ii) Employee Benefit Plans of Seller, and (iii) workers’
compensation and unemployment claims against Seller that relate to the period on or before the Closing Date, irrespective of whether such
claims are made prior to or after the Closing;
(m) any
Liabilities arising under or relating to any Collective Bargaining Agreement; and
(n) all
Liabilities associated with any Monetary Liens.
For the avoidance of doubt, the Environmental
Liabilities shall not, in any event, be deemed Retained Liabilities.
Section 2.6 Non-Assignable
Assets. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall not constitute an
agreement to assign, sell or transfer and shall not affect the assignment, sale or transfer of any Purchased Asset (“Non-Assignable
Asset”) if (i) an attempted assignment, sale or transfer thereof, without the approval, authorization or consent of, or
granting or issuance of any license or permit by, any Governmental Body or other third person (each such action, a “Necessary
Consent”), would constitute a breach, default or violation thereof or of any Law or Order or in any way adversely affect the
rights of Purchaser thereunder; and (ii) the Bankruptcy Court has not entered an Order providing that such Necessary Consent is not
required. In the event any assignment, sale or transfer is subject to such Necessary Consent being obtained, then Seller shall use commercially
reasonable efforts to obtain the Necessary Consent in respect of any such Non-Assignable Asset or any claim or right or any benefit arising
thereunder for the assignment, sale or transfer thereto to Purchaser as Purchaser may reasonably request. For the avoidance of doubt,
any asset that would be a Purchased Asset but is not assigned in accordance with this Section 2.6 shall not be considered
a “Purchased Asset” for purposes hereof unless and until such asset is assigned to Purchaser after the Closing Date upon receipt
of any Necessary Consent or approval of the Bankruptcy Court. If such Necessary Consent is not obtained, or if an attempted assignment,
sale or transfer thereof would be ineffective or would adversely affect the rights of Purchaser to such Non-Assignable Asset after the
Closing, then Seller shall cooperate with Purchaser in any reasonable arrangement to allow Purchaser to obtain the benefits and assume
the obligations thereunder in accordance with this Agreement. Pending the receipt of such Necessary Consent, the parties shall, at Purchaser’s
expense, reasonably cooperate with each other to provide Purchaser with all of the benefits of use of such Non-Assignable Asset. Once
such Necessary Consent for the sale, transfer, assignment, conveyance or delivery of any such Non-Assignable Asset not sold, transferred,
assigned, conveyed or delivered at the Closing is obtained, Seller shall promptly transfer, assign, convey and deliver such asset to Purchaser.
To the extent that any such Non-Assignable Asset cannot be transferred or the full benefits or use of any such asset cannot be provided
to Purchaser, then as promptly as practicable following the Closing, Purchaser and Seller shall enter into such arrangements (including
subleasing, sublicensing or subcontracting), and shall, at Purchaser’s expense, reasonably cooperate with each other, to provide
Purchaser with all of the benefits of use of such Non-Assignable Asset. Seller shall hold in trust for, and pay to Purchaser, promptly
upon receipt thereof, all income, proceeds and other monies received by Seller derived from their use of any Non-Assignable Asset that
would be a Purchased Asset in connection with the arrangements under this Section 2.6.
ARTICLE III
PURCHASE PRICE
Section 3.1 Purchase
Price. On the terms and subject to the conditions set forth herein, in consideration of the sale, assignment, conveyance, and
transfer by Seller of the Purchased Assets to Purchaser at the Closing, Purchaser will pay Seller an amount (the “Aggregate Purchase
Price”) equal to the sum of: (a) Three Million One Hundred Fifty Thousand Dollars ($3,150,000); plus (b) in
the event there is any Initial Overbid and/or any Subsequent Overbids, but Purchaser is the successful bidder at the Auction, the sum
of such overbid amounts (net of the amount of the Purchaser Reimbursable Expenses, less payment of the Seller Reimbursable Expenses);
plus (c) an amount equal to ninety-five percent (95%) of the aggregate total of the Receivables minus the Zero Rated Receivables
as of the Closing Date; minus (d) Customer Credits as of the Closing Date.
Section 3.2 Earnest
Money. On the Execution Date, Purchaser shall pay an earnest money deposit (the “Deposit”) in the amount
of Three Hundred Fifteen Thousand Dollars ($315,000) to the Escrow Agent, to be held in their trust account and disbursed in accordance
with the provisions of this Agreement.
Section 3.3 Closing
Payments. At the Closing, the Aggregate Purchase Price shall be paid to Seller as follows:
(a) The
Deposit shall be paid by the Escrow Agent to Seller; and
(b) Purchaser
shall pay the Closing Cash Payment to Seller, to be distributed pursuant to the Bankruptcy Code and upon final Bankruptcy Court approval.
Section 3.4 Release
of Earnest Money Deposit. In the event that the Closing occurs, the Seller and Purchaser shall, at the Closing, send a Joint
Written Direction to the Escrow Agent directing the Escrow Agent to pay the Deposit to Seller at the Closing as set forth in Section 3.3(a).
In the event that this Agreement is terminated prior to the Closing for any reason other than pursuant to Section 9.1(f),
then Seller and Purchaser shall send a Joint Written Direction to the Escrow Agent, on the date of such termination, directing the Escrow
Agent to pay the Deposit to Purchaser on such date, free of any Claims by Seller with respect thereto.
Section 3.5 Proration.
All pro-ratable items (specifically including, without limitation, utilities and real estate taxes and assessments for calendar
year 2023 for the Owned Real Property) shall be prorated as of the Effective Time.
Section 3.6 Purchase
Price Allocation. Purchaser and Seller agree that the Aggregate Purchase Price, applicable Assumed
Liabilities and other relevant items treated as purchase price for U.S. federal income tax purposes shall be allocated in accordance with
an allocation schedule (the “Allocation Statement”), which shall be prepared in a reasonable manner by Purchaser and
delivered by Purchaser to Seller within ninety (90) days following the Closing Date. Purchaser and Seller shall (and shall cause their
respective affiliates to) file all Tax Returns (including IRS Form 8954 (as and to the extent applicable)) and other Tax-related
information reports in a manner consistent with the Allocation Schedule and not take any position inconsistent with the Allocation Statement
in any Tax-Related audit, examination or other proceeding (whether administrative or judicial) unless required by applicable Law. If either
party receives any notice from a Governmental Body in respect of an audit, examination or other proceeding (whether administrative or
judicial) regarding any allocation of the Aggregate Purchase Price or otherwise proposing an allocation different from the Allocation
Statement, such party shall notify the other party of such notice and provide such other party with a copy of such notice, and the parties
shall cooperate with each other in good faith regarding the resolution of any such matter.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER
Except as set forth in the
Seller’s Disclosure Schedule, Seller hereby represents and warrants to Purchaser that:
Section 4.1 Organization
and Power. Seller is a corporation duly organized, validly existing, and in good standing under the Laws of its
jurisdiction of incorporation. Subject to the limitations imposed on Seller as a result of filing a petition for relief under the Bankruptcy
Code, Seller has the requisite corporate power and authority to own, lease, or otherwise hold the assets and properties owned, leased
or otherwise held by it and to carry on its business as currently conducted. Seller is duly qualified and authorized to conduct business
as a foreign corporation and is in good standing (or its equivalent) under the Laws of each jurisdiction in which the conduct of its business
or the ownership or lease of its assets or properties requires such qualification or authorization.
Section 4.2 Authorization
and Enforceability. Subject to the entry of the Final Sale Order and such other authorization and approval as is
required by the Bankruptcy Court, Seller has the requisite corporate power to execute and deliver this Agreement, any bill of sale, assignment
and assumption agreement and such other agreements, documents or instruments to be executed in connection with the transactions contemplated
hereby or thereby (collectively, the “Ancillary Agreements”) to which Seller is or will be a party, to perform the
obligations to be performed by it hereunder and thereunder, and to consummate the transactions contemplated hereby and thereby. Subject
to the entry of the Final Sale Order and such other authorization and approval as is required by the Bankruptcy Court, the execution and
delivery by Seller of this Agreement and each Ancillary Agreement to which Seller is or will be a party and the performance by it of the
obligations to be performed by it hereunder and thereunder, and the consummation of the transactions contemplated hereby and thereby,
have been (or, in the case of any such Ancillary Agreement, at the Closing, will be) duly authorized by all necessary corporate action
on the part of Seller. Subject to the entry of the Final Sale Order and such other authorization and approval as is required by the Bankruptcy
Court, this Agreement has been, and the Ancillary Agreements to which Seller is or will be a party will at the Closing be, duly executed
and delivered by Seller and, assuming the due execution and delivery of this Agreement and the Ancillary Agreements by the other parties
hereto and thereto (other than any affiliate of Seller), constitute valid and binding obligations of Seller enforceable against Seller
in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium, or other similar
Laws affecting the enforcement of creditors’ rights in general and subject to general principles of equity (regardless of whether
such enforceability is considered in a proceeding at law or in equity).
Section 4.3 No
Conflicts. Except as set forth on Section 4.3 of Seller’s Disclosure Schedule, the execution
and delivery by Seller of this Agreement and each Ancillary Agreement to which Seller is or will be a party, the performance by Seller
of the obligations to be performed by it hereunder and thereunder, and the consummation of the transactions contemplated hereby and thereby,
will not, with or without notice, lapse or time or both, (i) conflict with any Organizational Document of Seller, (ii) subject
to the entry of the Final Sale Order and such other authorization and approval as is required by the Bankruptcy Court, result in a breach
of, conflict with, or result in any violation of, or constitute a default (with or without notice, lapse of time, or both) under, or give
rise to a right of termination, cancellation, or acceleration of any obligation or to loss of a benefit under, or result in the creation
or imposition of any Lien (other than a Permitted Lien) on, any Purchased Asset (including any Purchased Contract or any Permit listed
or required to be listed in Section 2.2(f) of Seller’s Disclosure Schedule), or (iii) subject to the entry
of the Final Sale Order and such other authorization and approval as is required by the Bankruptcy Court, conflict with or violate any
Law or Order applicable to Seller or violate any Law applicable to Seller, the Business, the Purchased Assets or the Assumed Liabilities.
Section 4.4 Consents
and Approvals. Except as set forth on Section 4.4 of Seller’s Disclosure Schedule and except
to the extent required by the Bankruptcy Court, no consent, approval, Order, Permit or authorization of, or registration, or filing with,
any Governmental Body or other person is required to be obtained or made on the part of Seller in connection with the execution and delivery
of this Agreement or any Ancillary Agreement to which Seller is or will be a party, the performance by Seller of the obligations to be
performed by it hereunder or thereunder, or the consummation of the transactions contemplated hereby or thereby, other than the entry
of the Sale Order.
Section 4.5 Legal
Proceedings. Except for the general pendency of the Bankruptcy Case or as listed on Section 4.5 of
Seller’s Disclosure Schedule, there is no, and since January 1, 2020 there has not been any Legal Proceeding pending or, to
the knowledge of Seller, threatened that involves or affects any of Seller, the Purchased Assets or the Business or that could reasonably
be expected to give rise to any Liability of Purchaser or adversely affect Purchaser’s ability to conduct the Business after the
Closing or the ownership or use of the Purchased Assets in the operation of the Business after the Closing. Neither Seller nor any of
the Purchased Assets are, nor since January 1, 2020 have been, subject to any Order.
Section 4.6 Brokers’
Fees. Except as listed on Section 4.6 of Seller’s Disclosure Schedule, neither Seller nor any
person acting on its behalf has agreed to pay a fee, commission or similar payment in connection with this Agreement, any Ancillary Agreement
or any of the transactions contemplated hereby or thereby to any person for which Purchaser might be liable.
Section 4.7 Purchased
Assets; Sufficiency.
(a) Seller
has, in all material respects, indefeasible title to, and owns and possesses all rights and interests in, including the right to use,
each of the Purchased Assets, or with respect to leased Purchased Assets, valid leasehold interests in, or with respect to licensed Purchased
Assets, valid licenses to use, in each case free and clear of all Claims and Liens (other than Permitted Liens).
(b) This
Agreement and the instruments and documents to be delivered by Seller to Purchaser at Closing shall be adequate and sufficient to transfer
(i) Seller’s entire right, title and interest in and to the Purchased Assets to Purchaser and (ii) to Purchaser, good
and valid title to the Purchased Assets, free and clear of all Claims and Liens (other than Permitted Liens and Assumed Liabilities).
(c) Subject
to the entry of the Sale Order, at the Closing, Purchaser will own or have the right to use all of the assets used in, held for use or
necessary to conduct in all material respects the Business as conducted as of the Execution Date, other than the Excluded Assets.
(d) The
Purchased Assets to be conveyed to Purchaser in the aggregate hereunder at Closing (together with the services, properties and assets
to be provided to and made available for use by Purchaser and its affiliates pursuant to the Transition Agreement (if applicable)) constitute
all the properties (tangible and intangible), rights and other assets necessary, and are, without reference to cash historically spent
by Seller in the Ordinary Course of Business, sufficient, to carry on the Business immediately following the Closing as it is currently
conducted by Seller.
(e) Except
as set forth on Section 4.7(e) of Seller’s Disclosure Schedule, Seller owns or has valid rights to use the
Purchased Assets, free and clear of all Claims and Liens (other than Permitted Liens).
Section 4.8 FDA
Regulatory Compliance and Compliance with Other Laws.
(a) Except
as disclosed in Section 4.8(a) of Seller’s Disclosure Schedule, each product manufactured or sold by Seller
in the Business that is subject to the U.S. Food, Drug and Cosmetic Act (including the rules and regulations of the FDA promulgated
thereunder), or comparable applicable Laws in any non-U.S. jurisdiction (each such product, a “Medical Device”), is
being or has been developed, manufactured, sold, tested, labeled, stored, distributed and marketed in material compliance with all necessary
Permits and other applicable Laws and requirements under the FDA, applicable industry-standards, including ISO, and applicable comparable
Laws in any non-U.S. jurisdiction. Seller is in material compliance with all applicable Laws and requirements of the FDA relating to the
maintenance of technical and clinical data generated prior to the Closing Date by Seller with respect to Medical Devices.
(b) Except
as set forth in Section 4.8(b) of Seller’s Disclosure Schedule all material product issues, incidents and
complaints with respect to the Business have been suitably investigated, documented and managed.
(c) All
reports, documents, claims, Permits and notices required to be filed, maintained or furnished with or to the FDA by Seller for the Business
have been so filed, maintained or furnished. All such reports, documents, claims, Permits and notices were complete and accurate
in all material respects on the date filed (or were corrected in or supplemented by a subsequent filing).
(d) Except
as disclosed in Section 4.8(d) of Seller’s Disclosure Schedule, Seller has not, with respect to the Business,
received any written notice that the FDA has (i) commenced, or threatened to initiate, any action to withdraw its premarket clearance
or premarket approval or request the recall of any Medical Devices, (ii) commenced, or threatened to initiate, any action to enjoin
manufacture or distribution of any Medical Devices or (iii) commenced, or threatened to initiate, any action to enjoin the manufacture
or distribution of any Medical Devices, or (iv) identified any non-compliance with reporting, registration, labeling, good manufacturing
practices, advertising and other requirements under the FDA regulations.
(e) Except
as listed in Section 4.8(e) of Seller’s Disclosure Schedule: (i) the Business is being conducted, and
at all times since January 1, 2021 has been conducted, in compliance with, and Seller is in compliance, and at all times since January 1,
2021 has been in compliance, with all applicable Laws relating to the operation of the Business and the Purchased Assets, in each case
in all material respects, and (ii) there are no pending or, to the knowledge of Seller, threatened (and since January 1, 2021
there have been no pending, or to the knowledge of Seller, threatened), Legal Proceedings by any Governmental Body relating to any non-compliance
of the Business or the Purchased Assets in any material respect.
(f) Seller,
in relation to the Purchased Assets, is (and at all times since January 1, 2021 has been) in compliance with all applicable
material Customs and International Trade Laws, and at no time has Seller or any person on behalf of the Business committed any material
violation of the Customs and International Trade Laws of those countries in which Seller is engaged in the Business. The conduct of the
Business is, and since January 1, 2021 has been, in all material respects, in compliance with all Laws governing or concerning the
payment of all customs duties, countervailing duties, Taxes, fees and charges applicable to and due with respect to all import transactions,
including any countervailing or antidumping duties. To the knowledge of Seller, no products, goods, parts, or accessories imported in
the course of engaging in the Business are or have been subject to any countervailing or antidumping duty investigation, Order, notice
or other Legal Proceeding by any Governmental Body. There are no material unresolved questions or claims concerning any Liability of any
conduct in furtherance of the Business with respect to Customs and International Trade Laws applicable to the import or export of goods.
Section 4.9 Financial
Statements. Seller has delivered to Purchaser copies of (i) the audited balance sheet of Seller as at June 30,
2022 and the related audited income statement and statement of retained earnings for the year then ended, and (ii) the unaudited
balance sheet of Seller as at March 31, 2023 and the related unaudited income statement and statement of retained earnings for the
year then ended (such audited and unaudited statements, including the related notes and schedules thereto, are referred to herein as the
“Financial Statements”). Each of the Financial Statements is true, complete and correct in all material respects, has
been accurately derived from the books and records of Seller as of the dates and for the periods indicated therein, has been prepared
in accordance with GAAP consistently applied without modification of the accounting principles used in the preparation thereof throughout
the periods presented and presents fairly in all material respects the financial position, results of operations, and stockholders’
equity of Seller as at the dates and for the periods indicated (subject to normal year-end adjustments, none of which are material, with
respect to the unaudited statements).
Section 4.10 Taxes.
(a) Except
as set forth on Section 4.10(a) of Seller’s Disclosure Schedule, (i) Seller has timely filed, or obtained
extensions of time to file, all Tax Returns required to be filed with the appropriate taxing authorities in all jurisdictions in which
such Tax Returns are required to be filed (taking into account any extension of time to file granted or to be obtained on behalf of Seller)
and all such Tax Returns are correct and accurate; and (ii) all Taxes due from Seller, regardless of whether shown to be payable
on such Tax Returns, have been paid. Seller is not a foreign person within the meaning of Section 1445 of the Code.
(b) Except
as set forth on Section 4.10(b) of the Seller’s Disclosure Schedule, all deficiencies asserted or assessments made
as a result of any examinations by any Governmental Body with respect to any Taxes due from Seller have been paid in full to the
extent that the underpayment or non-payment of such Taxes would result in a Lien on the Purchased Assets after the Closing Date. No audit
or other Claim by any Governmental Body is pending or, to the knowledge of Seller, threatened in writing with respect to any Taxes due
from Seller the underpayment or nonpayment of which would result in a Lien on the Purchased Assets after the Closing Date.
(c) None
of the assets of Seller: (i) constitutes “tax-exempt bond financed property” within the meaning of Code Section 168;
(ii) is subject to a lease, safe harbor lease or other arrangement as a result of which such assets are required for federal Income
Tax purposes to be treated as owned by a Person other than Seller; or (iii) is subject to the limitations on “amortizable section 197
intangibles” described in Section 197(f)(9) of the Code or any similar comparable limitation under state, local or foreign
Law.
Section 4.11 Real
Property.
(a) With
respect to Seller’s Owned Real Property:
(i) Seller
has insurable title to the Owned Real Property, free and clear of all Liens, except (A) the Liens listed on Section 4.11(a)(i) of
Seller’s Disclosure Schedule, (B) Permitted Liens, and (C) those environmental restrictions and Contracts, in each case,
identified as such or listed in Section 4.11(a)(i)(C) of Seller’s Disclosure Schedule;
(ii) Seller
has not conveyed, assigned, or encumbered, or entered into any Contract for the sale, assignment or encumbrance of, its interest in the
Owned Real Property or any portion thereof, except with respect to Permitted Liens;
(iii) Except
as listed on Section 4.11(a)(iii) of the Seller’s Disclosure Schedule, Seller has not leased or otherwise
granted to any person the right to occupy the Owned Real Property or any portion thereof that remain in effect; and
(iv) Except
for this Agreement, there are no options, rights of first offer, or rights of first refusal to purchase the Owned Real Property or any
portion thereof.
(b) Seller
has no leased real property used with respect to the Business other than the St. Louis Facility at which certain Personal Property is
located.
(c) In
the past three (3) years, Seller has not received any written notice of (i) violations of building codes or zoning ordinances
or other governmental or regulatory Laws affecting the Owned Real Property, (ii) existing, pending or threatened condemnation or
eminent domain proceedings affecting the Owned Real Property, or (iii) existing, pending or threatened zoning, building code or other
moratorium proceedings, or similar matters which could reasonably be expected to adversely affect the ability to operate on the Owned
Real Property as currently operated.
(d) To
the extent not payable over time as shown on a real estate or similar municipal bill, all connection fees, "tie-in" charges
and other fees, if any, due and payable with respect to the utilities or facilities now serving the Owned Real Property have been fully
paid.
(e) (i) all
certificates of occupancy, permits, licenses, franchises, approvals and authorizations of all Governmental Bodies, board of fire underwriters,
association or any other entity having jurisdiction over the Owned Real Property, which are required to use or occupy the Owned Real Property
or own and operate the Business as currently conducted thereon, have been issued and are in full force and effect; and (ii) Seller
has not received any notices of actual or threatened cancellation or suspension of any right of occupancy for any portion of any building
located on the Owned Real Property.
(f) Seller
has not received any written notice indicating that any contractor, subcontractor, materialman or supplier has filed or intends to file
a mechanic’s lien against the Owned Real Property, and no contractor, subcontractor, materialman or supplier has provided written
notice to Seller indicating that money is due and owing for construction, alteration or repair work on any Owned Real Property that will
not be paid for (in full) on or before the Closing Date.
Section 4.12 Intellectual
Property. Except as listed on Section 4.12 of Seller’s Disclosure Schedule (a) Seller owns
and possesses all right, title and interest in and to (or has the right to use pursuant to a license or other permission) the Purchased
Intellectual Property and Seller’s Intellectual Property licensed to Purchaser under Sections 2.2(h) and 2.2(i);
(b) Seller has no obligation to compensate, and Purchaser will have no obligation to compensate, any person for the right to use
any of the Purchased Intellectual Property or Seller’s Intellectual Property that is licensed to Purchaser under Sections 2.2(h) and
2.2(i); (c) Seller has not granted to any person any exclusive license, option or other similar rights in or to any of the
Purchased Intellectual Property or Intellectual Property licensed to Purchaser under Sections 2.2(h) and 2.2(i); (d) Seller
has not in the past three (3) years received any written notice from any person that challenges the validity or enforceability of
any of the Purchased Intellectual Property or Intellectual Property licensed to Purchaser under Sections 2.2(h) and 2.2(i);
(e) Seller has not in the past three (3) years received any notice from any person challenging Seller’s ownership of,
or right to use, any of the Purchased Intellectual Property or Intellectual Property licensed to Purchaser under Sections 2.2(h) and
2.2(i); and (f) to the knowledge of Seller, no person is infringing upon or has misappropriated any of the Purchased Intellectual
Property and Seller’s Intellectual Property licensed to Purchaser under Sections 2.2(h) and 2.2(i). For the avoidance
of doubt, no representation or warranty is being made with respect to off-the-shelf or clickwrap Intellectual Property utilized by Seller
in the operation of its Business. Seller does not collect the Personal Information (meaning, any information that identifies, relates
to, or could reasonably be linked with an individual, including, but not limited to, a consumer’s name, physical address, email
address, IP address, internet browsing history, geolocation data, biometric information, social security number, or payment information)
of consumers. Seller has hired an outside consultant to review its policies, procedures and safeguards with respect to protecting its
material confidential information and the security of its information technology and data used or held for use in connection with the
Business. Section 4.12 of Seller’s Disclosure Schedule sets forth the consultant’s recommendations and any actions
taken by Seller with respect to such recommendations.
Section 4.13 Contracts.
The contracts listed in Section 4.13 of Seller’s Disclosure Schedule constitute a true and accurate list
of all Contracts material to the Business to which Seller is a party or by which it is bound with respect to the Business (collectively,
the “Material Contracts”); for the avoidance of doubt, Material Contracts do not include Contracts which taken individually
or in the aggregate are not material to the Business. Subject to requisite Bankruptcy Court approvals, and assumption by Seller of the
applicable Contract in accordance with applicable Law and except as a result of the commencement of the Bankruptcy Case, each Purchased
Contract is in full force and effect and is a valid, binding and enforceable obligation of Seller and, to the knowledge of Seller, each
of the other parties thereto, except as may be limited by bankruptcy, insolvency, reorganization, moratorium, or other similar Laws affecting
the enforcement of creditors’ rights in general and subject to general principles of equity (regardless of whether such enforceability
is considered in a proceeding at law or in equity). Except as set forth on Section 4.13 of Seller’s Disclosure Schedule
Seller is not in default, or is alleged by any counterparty thereto to have breached or to be in default, under any Purchased Contract,
and, to the knowledge of Seller, each other party to each Purchased Contract is not in default thereunder. No Purchased Contract has been
canceled or otherwise terminated, and Seller has not received any written notice from any person regarding any cancellation or termination
thereto (actual or proposed). As of the Execution Date, Seller has made available to Purchaser copies of all Purchased Contracts and such
copies are true, complete and accurate in all material respects and include all amendments thereto.
Section 4.14 Permits.
Seller is in possession of, and in good standing with respect to, all Permits necessary for it to own, lease and operate
its assets and properties, to employ or engage officers, workers and employees who are not citizens of the country where they are carrying
out their duties or performing their services and to carry on the Business as currently conducted and possess and use the Purchased Assets
as currently possessed and used, all of which Permits are set forth in Section 4.14 of Seller’s Disclosure Schedule
and constitute all of the Permits required of Seller to lawfully operate the Business, possess and use the Purchased Assets, and own and
occupy the Owned Real Property. All such Permits disclosed, or required to be disclosed, in Section 4.14 of Seller’s
Disclosure Schedule: (i) are valid and in full force and effect and Seller is not in default under, or in violation of, any such
Permit, except for such defaults or violations which would not reasonably be expected, individually or in the aggregate, to materially
restrict or interfere with Purchaser’s ability to operate the Business as currently operated or possess and use the Purchased Assets
as currently possessed and used, and no suspension or cancellation of any such Permit is pending (other than pursuant to its terms) or,
to the knowledge of Seller, threatened and (ii) subject to entry of the Sale Order, except as set forth on Section 4.14
of Seller’s Disclosure Schedule, each such Permit may be transferred or reissued to Purchaser in accordance with this Agreement
and without the approval of any Person (other than the Bankruptcy Court).
Section 4.15 Environmental
Matters. Except as set forth on Section 4.15 of Seller’s Disclosure Schedule, (i) there
is no suit, claim, action, settlement, investigation, proceeding or notice of investigation relating to or arising under Environmental
Laws that is pending or, to the knowledge of Seller, threatened against Seller with respect to the Owned Real Property; (ii) in the
past five (5) years, Seller has not received any written notice from any Governmental Body alleging that Seller has failed in any
material respect to comply with any Environmental Law or that Seller is liable for any injury or damages to any person or property because
of the release of any Hazardous Materials at or from the Owned Real Property; (iii) Schedule 4.15(iii) contains a complete list
of all permits, licenses and approvals required of the Seller to lawfully operate the Business and occupy the Owned Real Property in compliance
with Environmental Laws, and Seller is in compliance in all material respects with such each such permits, licenses and approvals, and
each remains active and in good standing with the issuing Government Body; and (iv) in the past ten (10) years, Seller has not
received any written notice, claim, demand, or written request for information from the any Governmental Body related to any past arrangements
Seller or persons acting on Seller’s behalf allegedly made for the off-site treatment, storage and/or disposal of any Hazardous
Material generated in association with Seller’s Business or operations.
Section 4.16 Employee
Plans.
(a) Section 4.16(a) of
Seller’s Disclosure Schedule sets forth a true, correct and complete list of all Employee Benefit Plans of Seller with respect
to the Business.
(b) Except
as described in Section 4.16(b) of Seller’s Disclosure Schedule, neither Seller nor any ERISA Affiliate has
sponsored, maintained, contributed to or withdrawn from: (i) any “employee pension plan” as defined in Section 3(2) of
ERISA, that is subject to Title IV of ERISA or Section 412, 430 or 436 of the Code; (ii) any “multiemployer plan,”
as defined in Section 3(37) of ERISA (“Multiemployer Plan”); or (iii) any post-termination retiree medical
or life insurance benefits, other than as required under COBRA.
(c) Except
as set forth on Section 4.16(c) of Seller’s Disclosure Schedule, there is no suit, action, claim, order,
charge, complaint, investigation, audit or other proceeding pending or, to the knowledge of Seller, threatened in writing against Seller
related to such Employee Benefit Plans of Seller (other than routine claims for benefits) that would reasonably be expected to result
in any liability to Purchaser.
(d) Except
as described in Section 4.16(d) of Seller’s Disclosure Schedule, neither the Seller nor any ERISA Affiliate has
(i) failed to comply with the requirements under COBRA; (ii) failed to timely make any required contributions to any Employee
Benefit Plan, including any Multiemployer Plan; (iii) incurred any withdrawal liability (including any contingent or secondary withdrawal
liability) within the meaning of ERISA Sections 4201 or 4204 to any Multiemployer Plan, and nothing has occurred that presents a material
risk of the occurrence of any withdrawal from or the partition, termination, reorganization, or insolvency of any such Multiemployer Plan
that could result in any liability of the Seller, any ERISA Affiliate, or Purchaser to any such Multiemployer Plan. With respect to any
Multiemployer Plan, Seller has furnished a copy of the most recent withdrawal liability estimate, if any, received by Seller or any ERISA
Affiliate and all documentation provided to Seller or any ERISA Affiliate by such plan with respect to such plan for the current plan
year and prior two full plan years (including any notices or calculations, statements or estimates of potential withdrawal liability)
and historical base units, contribution rates and annual contributions to such plan for 2012 through 2022.
(e) Except
as set forth on Section 4.16(e) of Seller’s Disclosure Schedule, neither the execution of this Agreement, nor the
consummation of any of the transactions contemplated hereby will (either alone or upon the occurrence of any additional or subsequent
events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of Seller to severance
pay, post-termination retiree medical or life insurance benefits or any other payment; (ii) accelerate the time of payment, funding
or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) increase
the amount payable under or result in any other compensatory obligation to a service provider of the Seller; (iv) result in “excess
parachute payments” within the meaning of Section 280G(b) of the Code; or (v) require a “gross-up” or
other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Code.
Section 4.17 Labor
Matters; Employees.
(a) Section 4.17(a) of
Seller’s Disclosure Schedule contains a list of all of Seller’s employees at the New York Facility as of the Execution Date,
which such schedule shall be updated to provide any and all employment or service hirings or terminations occurring prior to the Closing
Date (“Employees”). Except as set forth on Section 4.17(a) of Seller’s Disclosure Schedule,
all Employees are employed at will.
(b) Seller
is, as of the date hereof, and has been for the past three (3) years, in compliance in all material respects with all applicable
Laws respecting employment of its employees and engagement of all other Workers and with all contracts between Seller and any employee
or other Worker of Seller. Except as set forth on Section 4.17(b) of Seller’s Disclosure Schedule, there has been
no “mass layoff” or “plant closing” within the meaning of the WARN Act, or any similar state or local “mass
layoff” or “plant closing” Law with respect to Seller within the six month period prior to the date hereof.
(c) Except
as set forth on Section 4.17(c) of Seller’s Disclosure Schedule, Seller is not a party to or otherwise bound by
any labor or collective bargaining agreement, Contract or other agreement or understanding with a labor union or labor organization in
respect of the Business.
Section 4.18 Product
Warranty; Product Recalls.
(a) All
products manufactured by Seller in the operation of the Business (the “Business Products”) and all services rendered
by Seller in the operation of the Business, for the past five (5) years, have been in conformity in all material respects with all
applicable contractual commitments, Law, and all express and implied warranties. Seller does not have any Liability in connection with
any Business Product or services rendered, or for other damages related to any Business Product or services rendered, other than Liabilities
for warranty claims arising in the Ordinary Course of Business or Liabilities that would not be reasonably expected to be material to
the Business. To the knowledge of Seller, there exist no facts or circumstances that would reasonably be expected to result in or form
the basis of any claim against Seller for Liability on account of any express or implied warranty to any third party in connection with
the Business Products or services rendered by Seller in the operation of the Business, other than Liabilities that would not be reasonably
expected to be material to the Business.
(b) To
the knowledge of Seller, no Business Product is or has been, since January 1, 2018, subject to any recall (howsoever arising) or
post-sale warnings by Seller, or to the knowledge of Seller, any recall or post-sale warning by any third party retained by Seller or
any distributor or wholesaler of such Business Products other than, in each case, recalls that would not be reasonably expected to be
material to the Business. To the knowledge of Seller, there exist no facts or circumstances that would reasonably be expected to result
in or form the basis of any such recalls or post-sale warnings with respect to Business Products.
Section 4.19 Product
Liability. All Business Products are and have been, since January 1, 2018, without design defects or manufacturing defects. Seller
does not have any Liability in connection with the Business arising out of the presence or alleged presence of Hazardous Materials in
any Business Product or any injury to individuals or property as a result of the ownership, possession or use of any Business Product,
other than Liabilities that would not be reasonably expected to be material to the Business.
Section 4.20 Absence
of Certain Changes or Events. Since June 30, 2022, except as disclosed in Section 4.20 of Seller’s Disclosure
Schedule, through the Execution Date, there has not been any event, change, condition, occurrence or effect that, individually or in the
aggregate, has had, or would be reasonably expected to have, a Seller Material Adverse Effect. Except for (i) discussions, negotiations
and activities related to this Agreement or other potential strategic transactions; (ii) the solicitation of, discussions and negotiations
with, presentations and provision of other diligence to and similar engagement with other potential bidders for the Purchased Assets,
or the negotiation and execution of this Agreement; (iii) the preparation and commencement of the Bankruptcy Case; or (iv) as
set forth on Section 4.20 of the Seller’s Disclosure Schedule or as expressly contemplated by this Agreement, from June 30,
2022 until the Execution Date Seller has not taken any action or failed to take any action, as applicable, that would be prohibited by
Section 6.4, if taken, failed to be taken or proposed to be taken, except for the execution and delivery of this Agreement.
Section 4.21 Certain
Payments. Since January 1, 2018, neither Seller nor, to the knowledge of Seller, any of its representatives has (a) used
or is using any corporate funds for any illegal contributions, gifts, entertainment or other unlawful expenses relating to political activity;
(b) used or is using any corporate funds for any direct or indirect unlawful payments to any foreign or domestic governmental officials
or employees; (c) violated or is violating any provision of the Foreign Corrupt Practices Act of 1977; (d) established or maintained,
or is maintaining, any unlawful fund of corporate monies or other properties; or (e) made any bribe, unlawful rebate, payoff, influence
payment, kickback or other unlawful payment of any nature.
Section 4.22 Receivables.
Seller has not entered into any agreement to discount or accelerate the payment of Receivables. The Receivables have arisen from bona
fide, arms-length transactions entered into by Seller in the Ordinary Course of Business, have been recorded in accordance with GAAP,
and are not subject in any material respect to claims, offsets or other defenses or counterclaims other than normal cash discounts accrued
in the Ordinary Course of Business.
Section 4.23 Insurance.
Each insurance policy maintained by Seller on the properties, assets, products, business or personnel of Seller is legal, valid, binding,
enforceable by Seller, and in full force and effect, and all premiums with respect thereto covering all periods up to and including the
date hereof have been paid, and no notice of cancellation or termination has been received with respect to any such insurance policy since
June 30, 2022.
Section 4.24 Inventory.
The Inventory (i) is not materially damaged in any way that would prevent it from being used for its intended purpose; (ii) is
not part of or subject to a current or past recall (including, to the knowledge of Seller, any threatened recall), nor have any such recalls
been pending at any time; (iii) was manufactured, and has been shipped, stored, and otherwise maintained in accordance with, to the
extent applicable, Good Manufacturing Practice requirements of the FDA and any other applicable Law in all material respects; and (iv) is
free of any defect or deficiency and is in working condition. Seller does not hold any Inventory on consignment.
Section 4.25 No
Other Representations or Warranties of Seller. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS ARTICLE IV,
THE PURCHASED ASSETS ARE BEING PURCHASED “AS IS, WHERE IS” AND NEITHER SELLER NOR ANY PERSON ACTING ON BEHALF OF SELLER MAKES
ANY OTHER EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WITH RESPECT TO SELLER, ANY AFFILIATE OF SELLER, THE BUSINESS, THE PURCHASED ASSETS,
OR WITH RESPECT TO ANY OTHER INFORMATION PROVIDED TO PURCHASER OR ANY OF ITS AFFILIATES OR REPRESENTATIVES IN CONNECTION WITH THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING, EXCEPT AS SET FORTH IN THE REPRESENTATIONS AND WARRANTIES OF SELLER CONTAINED
IN THIS ARTICLE IV, SELLER MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AT LAW OR IN EQUITY, WITH RESPECT TO (A) MERCHANTABILITY,
FITNESS FOR ANY PARTICULAR PURPOSE OR USE, TITLE OR NON-INFRINGEMENT OF THE PURCHASED ASSETS, (B) ANY INFORMATION WRITTEN OR ORAL
AND IN ANY FORM PROVIDED OR MADE AVAILABLE TO PURCHASER OR ANY OF ITS AFFILIATES OR REPRESENTATIVES, ON THE ONE HAND, AND SELLER, ITS
AFFILIATES, OR ANY OF ITS REPRESENTATIVES, ON THE OTHER HAND, OR ON THE ACCURACY OR COMPLETENESS OF ANY SUCH INFORMATION, OR ANY PROJECTIONS,
ESTIMATES, BUSINESS PLANS OR BUDGETS DELIVERED TO OR MADE AVAILABLE TO PURCHASER OR ANY OF ITS AFFILIATES OR REPRESENTATIVES OR (C) FUTURE
REVENUES, EXPENSES OR EXPENDITURES, FUTURE RESULTS OF OPERATIONS (OR ANY COMPONENT THEREOF), FUTURE CASH FLOWS OR FUTURE FINANCIAL CONDITION
(OR ANY COMPONENT THEREOF) OF SELLER’S BUSINESS OR THE PURCHASED ASSETS.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents
and warrants to Seller that:
Section 5.1 Organization.
Purchaser is a limited liability company, duly organized, validly existing, and in good standing under the Laws of the state
of Delaware.
Section 5.2 Authorization
and Enforceability. Purchaser has the requisite corporate power to execute and deliver this Agreement, the Ancillary Agreements
to which Purchaser is a party and to perform the obligations to be performed by it hereunder and thereunder. The execution and delivery
by Purchaser of this Agreement and each Ancillary Agreement to which Purchaser is a party and the performance by it of the obligations
to be performed by it hereunder and thereunder have been (or, in the case of any such Ancillary Agreement, at the Closing, will be) duly
authorized by all necessary action on the part of Purchaser. This Agreement has been, and the Ancillary Agreements to which Purchaser
is a party will at the Closing be, duly executed and delivered by Purchaser and, assuming the due execution and delivery of this Agreement
and the Ancillary Agreements by the other parties hereto and thereto, constitute valid and binding obligations of Purchaser enforceable
against Purchaser in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium,
or other similar Laws affecting the enforcement of creditors’ rights in general and subject to general principles of equity (regardless
of whether such enforceability is considered in a proceeding at law or in equity).
Section 5.3 No
Conflicts. The execution and delivery by Purchaser of this Agreement and each Ancillary Agreement to which Purchaser is
a party, the performance by Purchaser of the obligations to be performed by it hereunder and thereunder, and the consummation of the transactions
contemplated hereby and thereby, will not, (i) conflict with the Organizational Documents of Purchaser, (ii) conflict with,
or result in any violation of, or constitute a default (with or without notice, lapse of time, or both) under, or give rise to a right
of termination, cancellation, or acceleration of any obligation or to loss of a benefit under, any material Contract or Permit to which
Purchaser is a party or by which any of its assets or properties are bound, or (iii) violate any Order or Law applicable to Purchaser,
other than such conflicts, violations, defaults, terminations, cancellations or accelerations or loss of a benefits that would not reasonably
be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect.
Section 5.4 Consents
and Approvals. No consent, approval, waiver, Order, Permit or authorization of, or registration, declaration or filing
with, any Governmental Body or other person is required to be obtained or made on the part of Purchaser in connection with the execution
and delivery of this Agreement or any Ancillary Agreement to which Purchaser is a party by Purchaser, the performance by Purchaser of
the obligations to be performed by it hereunder or thereunder, or the consummation of the transactions contemplated hereby or thereby,
other than (i) the entry of the Sale Order and (ii) such consents, approvals, waivers, Orders, Permits, authorizations, registrations,
declarations or filings, that would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse
Effect. Purchaser acknowledges and agrees that this Agreement is subject to Final authorization and approval by the Bankruptcy Court.
Section 5.5 Legal
Proceedings. There is no Legal Proceeding pending or, to the knowledge of Purchaser, threatened against Purchaser or to
which Purchaser is otherwise a party before any Governmental Body, which, if adversely determined, would reasonably be expected to have,
individually or in the aggregate, a Purchaser Material Adverse Effect. Purchaser is not subject to any Order, except to the extent the
same would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect.
Section 5.6 Brokers’
Fees. Neither Purchaser nor any person acting on its behalf has agreed to pay a fee, commission or similar payment in
connection with this Agreement, any Ancillary Agreement or any of the transactions contemplated hereby or thereby to any person for which
Seller might be liable.
Section 5.7 Financing
Source. Purchaser has sufficient available cash on hand necessary to make all of the payments required to be made by
Purchaser pursuant to this Agreement.
Section 5.8 No
Other Representations and Warranties of Purchaser. Except for the representations and warranties expressly set forth in
this Article V, neither Purchaser nor any other Person on behalf of Purchaser makes (and Purchaser, on behalf of itself and
its affiliates, and their respective representatives, hereby disclaims), and Seller has not relied on, any express or implied representation
or warranty with respect to Purchaser, its affiliates or any of their respective businesses, operations, properties, assets, liabilities
or otherwise in connection with this Agreement or the transactions contemplated hereby, including as to the accuracy or completeness of
any information.
ARTICLE VI
COVENANTS
Section 6.1 Certain
Bankruptcy Undertakings. This Agreement and the sale of the Purchased Assets and the assumption and/or assignment of the Purchased
Contracts are subject to approval by the Bankruptcy Court. Subject to the terms of the Final Bid Procedures Order and Final authorization
and approval of this Agreement, Seller and Purchaser each agree to use commercially reasonable efforts to do such acts and things as may
reasonably be required to obtain the Bankruptcy Court’s approval of the Sale Order, the sale of the Purchased Assets to Purchaser
in accordance with this Agreement, the assumption and/or assignment or transfer of the Purchased Contracts and Permits, or any other agreement
contemplated hereby and the consummation of the transactions contemplated hereby.
Section 6.2 Bankruptcy
Court Matters.
(a) Approval
of Purchaser Reimbursable Expenses. In the event that Purchaser terminates this Agreement pursuant to Section 9.1(h),
and Seller consummates an Alternative Transaction, following the termination of this Agreement, in consideration for Purchaser having
expended considerable time and expense in connection with this Agreement and the negotiation thereof and the identification and quantification
of assets of Seller, subject to Purchaser’s payment of the Seller Reimbursable Expenses, Seller shall pay Purchaser, in accordance
with the terms hereof and the Bid Procedures Order, the Purchaser Reimbursable Expenses. Subject to Purchaser’s payment of the Seller
Reimbursable Expenses, payment of the Purchaser Reimbursable Expenses shall be paid to Purchaser at the closing of the Alternative Transaction.
Subject to Purchaser’s payment of the Seller Reimbursable Expenses, and only to the extent that the Purchaser Reimbursable Expenses
are not paid at the closing of the Alternative Transaction, Seller’s obligation to pay the Purchaser Reimbursable Expenses shall
constitute an allowed superpriority administrative expense against Seller’s bankruptcy estate pursuant to Sections 105(a), 363,
364, 503(b) and 507(a)(2) of the Bankruptcy Code, with priority over all other administrative expenses.
(b) Competing
Transaction. This Agreement is subject to approval by the Bankruptcy Court and the consideration by Seller of higher or better competing
bids in respect of the Purchased Assets (each, a “Competing Bid”). From the date of this Agreement (and any prior time)
and until the sale contemplated herein is consummated, Seller is permitted to initiate contact with, solicit or encourage submission of
any inquiries, proposals or offers by, any person (in addition to Purchaser and its affiliates and representatives) in connection with
a Competing Bid. In addition, Seller shall have the authority to respond to any inquiries or offers for a Competing Bid and perform any
and all other acts related thereto which are required under the Bankruptcy Code, the Bid Procedures Order or other applicable Law, including
supplying information relating to the Business and the Purchased Assets to prospective purchasers.
(c) Bankruptcy
Court Filings.
(i) As
soon as reasonably practicable following the Execution Date and the commencement of the Bankruptcy Case, Seller shall file with the Bankruptcy
Court a motion seeking entry of the Bid Procedures Order (which shall, among other things, approve and authorize payment of the Purchaser
Reimbursable Expenses, and shall establish procedures for the conduct of the auction with respect to the Purchased Assets (“Auction”)).
(ii) Provided
Purchaser is selected as the winning bidder at the Auction, if any, or if no Competing Bid is submitted with respect to the Purchased
Assets, Seller shall seek entry of the Sale Order by the Bankruptcy Court in accordance with the terms and conditions of the Bid Procedures
Order; provided that any revisions to the Sale Order are subject to Purchaser’s prior written consent (which shall not be unreasonably
withheld, conditioned, or delayed) if there are material changes to the form of Sale Order attached hereto as Exhibit B. Seller
agrees that all filings by Seller with respect to this Agreement, including any reply in support thereof or any filing relating to the
assignment or assumption of contracts, shall be provided to Purchaser no later than two (2) business days prior to filing or otherwise
as soon as reasonably practicable, for review. Purchaser and Seller understand and agree that the transactions contemplated by this Agreement
are subject to approval by the Bankruptcy Court.
(iii) Purchaser
agrees that it will promptly take such actions as are reasonably requested by Seller to assist in obtaining entry of the Bid Procedures
Order and Sale Order, including a finding of adequate assurance of future performance by Purchaser, including by furnishing witnesses,
affidavits or other documents or information for filing with the Bankruptcy Court for the purposes, among others, of providing necessary
assurances of performance by Purchaser under this Agreement and demonstrating that Purchaser is a “good faith” purchaser under
section 363(m) of the Bankruptcy Code. In the event the entry of the Bid Procedures Order or Sale Order shall be appealed (or if
any petition for certiorari or motion for reconsideration, amendment, clarification, modification, vacation, stay, rehearing or re-argument
shall be filed with respect to the Bid Procedures Order or Sale Order), Seller and Purchaser (and with respect to the Purchaser, at least
until the Outside Date) shall use their respective commercially reasonable efforts to defend such appeal, petition or motion. Seller shall
waive their rights to appeal (or file any petition for certiorari or motion for reconsideration, amendment, clarification, modification,
vacation, stay, rehearing or re-argument) with respect to the Sale Order, and such waivers shall be explicitly set forth in the Sale Order.
(iv) Seller
shall file such motions or pleadings as may be reasonably appropriate or necessary to assume and assign the Purchased Contracts and to
determine the amount of the Cure Amounts; provided, however, that nothing herein shall preclude Seller from filing motions, including
upon commencement of the Bankruptcy Case, to reject any Contracts that are not Purchased Contracts.
(d) Bankruptcy
Court Milestones. The following milestones (“Bankruptcy Court Milestones”) shall apply, which may be extended by
Purchaser, in Purchaser’s reasonable discretion:
(i) on
or within five (5) business days of the Petition Date, Seller shall have filed a motion seeking entry of the Bid Procedures Order
(“Bid Motion”);
(ii) Seller
shall seek to have a hearing occur on or within twenty-one (21) days of filing the Bid Motion;
(iii) Seller
shall seek to have the Bankruptcy Court enter the Bid Procedures Order on or within thirty (30) days of filing the Bid Motion;
(iv) the
final date for submitting a qualified bid, as set forth in the approved Bid Procedures Order, shall be no later than thirty
(30) days after the Bankruptcy Court’s entry of the Bid Procedures Order (“Bid Deadline”);
(v) Seller
shall hold the Auction, if any, no later than two (2) business days after the Bid Deadline; and
(vi) on
or within fourteen (14) business days after the conclusion of the Auction, the Bankruptcy Court shall enter the Sale Order.
(e) Back-up
Bidder. Seller and Purchaser agree that, in the event that Purchaser is not the winning bidder at the Auction, if and only if (i) Purchaser
submits the second highest or second best bid at the Auction for the Purchased Assets and (ii) Seller gives written notice to Purchaser
on or before the Back-up Termination Date, stating that Seller (A) failed to consummate the sale of the Purchased Assets with the
winning bidder, and (B) terminated the purchase agreement with the winning bidder, Purchaser shall promptly consummate the transactions
contemplated by this Agreement upon the terms and conditions as set forth herein, or as set forth on the record of the Auction, including
the Purchase Price, subject to any increase to the Purchase Price made by Purchaser, if any, at the Auction.
(f) Auction
Overbids. During the Auction, pursuant to the terms of the Final Bid Procedures Order, if any qualified bidder submits a topping bid
with respect to the Purchaser’s bid, Purchaser is authorized to “credit bid” the net value of the Purchaser Reimbursable
Expenses after payment of the Seller Reimbursable Expenses as part of any overbid by the Purchaser.
Section 6.3 Non-Exclusive
Access to Information and the Premises. From the Execution Date through the Closing Date, Purchaser shall be entitled, through its
officers, employees and representatives (including, its legal counsel, accountants and other advisors), to make such investigation of
the assets, properties, operations, businesses and affairs of Seller with respect to the Business, and such examination of the books and
records and financial condition of Seller with respect to the Business and the Purchased Assets as it reasonably requests and to make
extracts and copies of such books and records. From the Execution Date through the Closing Date, Seller shall provide the representatives
of Purchaser (one such representative at a time, as designated by Purchaser from time to time) with non-exclusive reasonable access during
normal business hours to the New York Facility and to Seller’s employees at the New York Facility, to ensure that the Business is
being operated in the Ordinary Course of Business, and offer reasonable suggestions (which may be ignored by Seller, at Seller’s
sole discretion) as to the operations of the Business. Seller shall reasonably cooperate, and shall cause its officers, employees, consultants,
agents, accountants, attorneys and other representatives to reasonably cooperate, with Purchaser and its representatives in connection
with such access, investigation and examination as herein set forth.
Section 6.4 Conduct
of the Business Pending Closing. Except as required by applicable Law or by the Bankruptcy Court, or as otherwise expressly provided
by this Agreement, or as otherwise disclosed in Section 6.4 of Seller’s Disclosure Schedule, from the Execution Date
until the Closing Date, Seller shall, subject to the availability of necessary funds: (a) use commercially reasonable efforts to
preserve intact the Business, to keep available the services of its current employees and all other Workers and agents, and to maintain
its relations and goodwill with its suppliers, customers, distributors and any others with whom or with which it has business relations,
in accordance with the Ordinary Course of Business in each case; (b) maintain and operate the Business and the Purchased Assets in
the Ordinary Course of Business; (c) continue to operate the Business in all material respects in compliance with all Laws applicable
to Seller or the Business; (d) review its Customer Credits and update its books and records to only include “specified customers”
(as defined in the definition of Customer Credits); and (e) not (i) sell, transfer, mortgage, lease, sublease, license, abandon,
encumber or otherwise dispose of any Purchased Assets, other than immaterial dispositions thereof and Inventory sold or disposed of in
the Ordinary Course of Business; provided that in no event shall Seller sell or dispose of Inventory for less than the actual cost thereof
or in a bulk sale; (ii) acquire any corporation, partnership, limited liability company, other business organization or division
thereof related to or affecting the Business or the Purchased Assets or any material assets, except acquisitions of raw materials in the
Ordinary Course of Business; (iii) merge or consolidate with or into any legal entity, dissolve, liquidate or otherwise terminate
its existence, or issue, transfer, sell, pledge, dispose or encumber any shares or capital stock or other equity interests; (iv) authorize,
declare, set aside or pay any dividend or other distribution; (v) enter into any joint venture agreement that involves a sharing
of profits, cash flows, expenses or losses with other persons related to or affecting the Business or the Purchased Assets; (vi) (1) reject,
terminate (other than by expiration in accordance with its terms), or materially amend any Purchased Contract or Real Property Leases,
or seek Bankruptcy Court approval to do so, or (2) fail to use commercially reasonable efforts to oppose any action by a third party
to so terminate (including any action by a third party to obtain Bankruptcy Court approval to terminate) any Purchased Contract; (vii) make
any loans, advances or capital contributions to, or investments in, any other person; (viii) subject any of the Purchased Assets
to any Lien other than Permitted Liens; (ix) except as set forth in Section 6.4(d)(ix) of Seller’s Disclosure
Schedule, incur, guarantee or assume any indebtedness for borrowed money, enter into any capital lease or guarantee any such indebtedness;
(x) modify, amend, terminate or waive any rights under any Purchased Contract or contract necessary for the services contemplated
under the Transition Agreement; (xi) change or modify any material accounting practice, policy or procedure, except as required by
GAAP or applicable Law; (xii) except as required by applicable Law, (1) make, revoke or change any material Tax election or
method of accounting with respect to Taxes, (2) file any amended Tax Return, (3) enter into any closing agreement or settle
or compromise any material Tax claim or assessment, (4) request or obtain any ruling or determination from any taxing authority,
or (5) consent to any extension or waiver of the limitation period applicable to any claim or assessment with respect to Taxes; in
each case to the extent such action relates to the Purchased Assets and could have any effect on Purchaser or its affiliates; (xiii) enter
into any agreement to discount or accelerate the payment of the Receivables; or (xiv) agree or commit to any of the foregoing. Without
in any way limiting any party rights or obligations under this Agreement, the parties understand and agree that nothing contained in this
Agreement shall give Purchaser, directly or indirectly, the right to control or direct the operations of Seller, or the Business prior
to the Closing and prior to the Closing, Seller shall exercise, consistent with, and subject to, the terms and conditions of this Agreement,
complete control and supervision over the Business and its operations.
Section 6.5 Consents
and Permits. Seller shall use commercially reasonable efforts, and Purchaser shall cooperate with Seller, to obtain at the earliest
practicable date all consents and approvals contemplated hereby, including, the consents and approvals referred to in Section 4.4
and the Necessary Consents. Purchaser and Seller shall use their commercially reasonable efforts to obtain the issuance, or transfer of,
all Permits required to be issued, transferred or reissued to Purchaser in connection with the acquisition of the Purchased Assets and
the operation of the Business by Purchaser after the Closing Date. Seller and Purchaser shall use commercially reasonable efforts to give
and make all notices and reports that Seller or Purchaser is required to make to the appropriate Governmental Body and other persons in
respect of the Permits that may be necessary for the sale of the Purchased Assets to Purchaser at the Closing.
Section 6.6 Further
Assurances.
(a) Upon
the terms and subject to the conditions set forth in this Agreement, each of the parties shall use its commercially reasonable efforts
to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other party in doing,
all things necessary, proper, or advisable to consummate and make effective, in the most expeditious manner practicable (and in any event
prior to the Outside Date), the transactions contemplated by this Agreement on the terms set forth in this Agreement, including the conditions
to the Closing set forth in Article VII. Without limiting the generality of the foregoing, (i) Seller shall use its commercially
reasonable efforts to cause the conditions set forth in Section 7.1 that are within its control or influence to be satisfied
or fulfilled, and (ii) Purchaser shall use its commercially reasonable efforts to cause the conditions set forth in Section 7.2
that are within its control or influence to be satisfied or fulfilled.
(b) From
time to time, whether at or following the Closing, Seller and Purchaser shall execute, acknowledge and deliver all such further conveyances,
notices, assumptions and releases and such other instruments, and shall take such further actions, as may be necessary or appropriate
to vest in Purchaser all the right, title, and interest in, to or under the Purchased Assets, to provide Purchaser and Seller all rights
and obligations to which they are entitled and subject pursuant to this Agreement and the Ancillary Agreements, and to otherwise make
effective as promptly as practicable the transactions contemplated by this Agreement and the Ancillary Agreements. Each of the parties
will take, or cause to be taken, all actions, and do, or cause to be done, all things necessary, proper or advisable under applicable
Laws to cause all of the obligations imposed upon it in this Agreement to be duly complied with and to cause all conditions precedent
to such obligations to be satisfied. Notwithstanding the foregoing, nothing in this Section 6.6(b) shall (i) require
Seller or Purchaser or any of their affiliates to make any expenditure or incur any obligation on their own or on behalf of any other
party (unless funds in the full amount thereof are advanced by such other party in cash) or (ii) prohibit Seller from ceasing operations
or winding up its affairs following the Closing.
(c) Following
the Closing, Seller shall cooperate with Purchaser’s reasonable requests with respect to the investigation and prosecution of any
Legal Proceeding related primarily to the Business or the Purchased Assets (other than in connection with disputes between the parties),
including taking, or causing to be taken, all actions, and doing, or causing to be done, all things necessary, proper or advisable under
applicable Laws to furnish all reasonably available information and testimony, to arrange discussions with, and the calling as witnesses
of, officers, directors, employees, agents and other representatives, and to provide other reasonable assistance in connection with any
such Legal Proceedings, with such cooperation to be at the cost and expense of Purchaser. Notwithstanding the foregoing, nothing in this
Section 6.6(c) shall prohibit Seller from ceasing operations, winding up its affairs or terminating its existence and
all of its employees following the Closing.
Section 6.7 Publicity.
Except as set forth in Section 10.20 or otherwise required by Law, neither Purchaser nor Seller will make any public
announcement regarding the proposed purchase without the consent of the other party, which consent will not be unreasonably withheld or
delayed; provided, however, that Purchaser and Seller acknowledge and agree that the transactions contemplated by this Agreement
require the approval of the Bankruptcy Court and in no event shall it be deemed to be a violation of the terms and conditions of this
Section 6.7 for Purchaser to file the appropriate pleadings in the Bankruptcy Case to approve the transactions contemplated
by this Agreement and the attachment of this Agreement to such pleadings and the content of such pleadings shall not be deemed to be a
violation of the terms and conditions of this Section 6.7. Notwithstanding the foregoing, nothing set forth herein shall limit
or restrict Seller’s right to (i) publicize the sale of the Business, the terms of the proposed transaction or the identity
of Purchaser or other interested buyers as deemed necessary by Seller for the auction of Seller’s business segments; or (ii) make
any filings or public disclosures required by the Securities and Exchange Commission.
Section 6.8 Notification
of Certain Matters.
(a) From
time to time prior to the Closing, Seller shall promptly deliver written notice to Purchaser of (i) any event, change, effect, condition,
state of facts or occurrence that comes to the knowledge of Seller that (A) would reasonably be expected to (1) cause a breach
of Seller’s covenants or agreements contained herein, (2) render the satisfaction of the conditions in Section 7.1
or Section 7.3 reasonably unlikely to be fulfilled, or (3) prevent, prohibit or delay the Closing; (B) would reasonably
be expected to have a Seller Material Adverse Effect; or (C) if occurring or arising or in existence before or on the Execution Date
would have caused a representation or warranty of Seller to be inaccurate or deficient; (ii) any notice or other written communication
from any person alleging that the consent of such person is or may be required in connection with the consummation of the transactions
contemplated hereby; and (iii) the commencement of any Legal Proceeding relating to the Business or the Purchased Assets. The delivery
of any notice pursuant to this Section 6.8(a) shall not have any effect on the satisfaction of the condition to Closing
set forth in Section 7.3(a) or Purchaser’s right to terminate the Agreement pursuant to Section 9.1(d),
and shall not be deemed to amend or supplement Seller’s Disclosure Schedule or limit or otherwise affect any remedy available to
Purchaser or prevent or cure any breach of any representation or warranty.
(b) From
time to time prior to the Closing, Purchaser shall promptly deliver written notice to Seller of (i) any event, change, effect, condition,
state of facts or occurrence that comes to the knowledge of Purchaser that (A) would reasonably be expected to (1) cause a breach
Purchaser’s covenants or agreements contained herein, (2) render the satisfaction of the conditions in Section 7.1
or Section 7.2 reasonably unlikely to be fulfilled, or (3) prevent, prohibit or delay the Closing; (B) would reasonably
be expected to constitute a Purchaser Material Adverse Effect; or (C) that, if occurring or arising or in existence before or on
the Execution Date would have caused a representation or warranty of Purchaser to be inaccurate or deficient; and (ii) any notice
or other written communication from any person alleging that the consent of such person is or may be required in connection with the consummation
of the transactions contemplated hereby. The delivery of any notice pursuant to this Section 6.8(b) shall not have any
effect on the satisfaction of the condition to Closing set forth in Section 7.2(a) or Seller’s right to terminate
this Agreement pursuant to Section 9.1(f) and shall not be deemed to limit or otherwise affect any remedy available to
Seller or prevent or cure any breach of any representations or warranty.
Section 6.9 Confidentiality.
Purchaser acknowledges and understands that this Agreement may be publicly filed in the Bankruptcy Court, or disclosed to the New York
State Department of Environmental Conservation in connection with the Brownfield Cleanup Program, or as required in any securities filings
by Seller, and used or referenced in Alternative Transactions, and that such disclosure shall not be deemed to violate any confidentiality
obligations owing to Purchaser, whether pursuant to this Agreement or otherwise. Seller acknowledges and agrees that from and after the
Closing, all non-public information relating to the Business, including the Purchased Assets, shall be valuable and proprietary to Purchaser
and its affiliates. From and after the Closing, Seller shall not disclose to any person any information relating to Purchaser and its
affiliates, or the Business, including the Purchased Assets, except as required by applicable Law, by the Bankruptcy Court or as otherwise
becomes available in the public domain other than through any action by Seller in violation of its obligations under this Section 6.9.
Notwithstanding the foregoing, Seller is expressly permitted to disclose and discuss the information protected by and subject to this
paragraph with its professional advisors with a legitimate need to know such information; provided, however, that such professional
advisors shall be subject to confidentiality obligations with respect to such information disclosed by Seller at least as protective as
the confidentiality obligations set forth in this Section 6.9. Notwithstanding the foregoing, Purchaser acknowledges and understands
that after the Closing, Seller may be required to report certain information related to its possession and use of the Purchased Assets
prior to the Closing to the Bankruptcy Court in connection with the Bankruptcy Case, and that such reporting and disclosures shall not
be deemed to be a violation of the terms and conditions set forth in this Section 6.9. Notwithstanding the foregoing, nothing
set forth in this Section 6.9 or elsewhere in this Agreement will prevent Seller from (i) disclosing the information
set forth in Due Diligence Reports or the bids and names of other potential buyers of Seller’s assets, (ii) promoting the sale
of the Business or any other business segment(s) of Seller, or (i) soliciting competing offers from third parties for the purchase
of the Purchased Assets or any other assets of Seller pursuant to the Bid Procedures Order.
Section 6.10 Employee
Matters.
(a) Seller
shall provide Purchaser, no later than five business days after the Closing Date, with a true, correct and complete list of any and all
employment losses (within the meaning of the WARN Act) incurred by Seller during the 180-day period prior to and including the Closing
Date.
(b) Purchaser,
or one of its affiliates, may (but is not obligated to) offer employment to those Employees it identifies in its sole discretion (each,
an “Offer Employee”) an offer of employment on terms and conditions as determined by Purchaser in its sole discretion,
in each case with such employment to commence following the Closing. Each Offer Employee who receives and accepts Purchaser’s (or
an affiliate of Purchaser’s) offer of employment and who commences employment with Purchaser or an affiliate thereof on or following
the Closing shall be a “Transferred Employee.” From the date of this Agreement until the Closing Date or earlier termination
of this Agreement, Seller shall reasonably cooperate with Purchaser in effecting Purchaser’s identification of Offer Employees and
their potential transfer of employment from Seller to Purchaser or an affiliate of Purchaser as contemplated hereby, including by providing
Purchaser and its affiliates from and after the Execution Date with an unredacted census file identifying each Employee’s name,
position/title, job description, current rate of pay, and contact information (solely to the extent permitted by Law, and Seller shall
have no obligation to disclose any personally identifiable information to the extent prohibited by Law), and reasonable access to Employees
and other Seller personnel, during normal business hours, and upon reasonable advance notice, subject to reasonable denials of access
or delays to the extent any such access would unreasonably interfere with the operations of Seller, the Business or the duties of such
Employees, to allow Purchaser to identify those Employees to whom it would like to offer employment, conduct job interviews, and otherwise
plan for the transition of Employees contemplated by this Agreement. For the avoidance of doubt, Seller shall only be required to disclose
Employee information to the extent permitted by Law.
(c) Notwithstanding
anything in this Agreement to the contrary, neither Purchaser nor any of its Affiliates shall (i) assume any Liabilities relating
to or arising under any Collective Bargaining Agreement (including, without limitation, any pension obligations or retirement benefits),
or (ii) be bound by or required to adhere to any past practice of any of Seller included in writing in any Collective Bargaining
Agreement.
(d) Seller
shall retain all Liabilities accrued on or before the Closing Date relating in any way to its Workers, including all Liabilities relating
to unpaid wages, salaries, commissions and other amounts earned or accrued on or before the Closing Date by or in respect of all of its
current and former employees, including but not limited to the Transferred Employees.
(e) Nothing
express or implied in this Section 6.10 or elsewhere in this Agreement shall (i) confer upon any Transferred Employee,
or legal representative or beneficiary thereof, any rights or remedies, including any right to employment or benefits for any specified
period, of any nature or kind whatsoever, under or by reason of this Agreement, (ii) be treated as an amendment to, or prevent or
otherwise restrict the amendment or termination of any Employee Benefit Plan or any employee benefit plan, program, arrangement or agreement
sponsored or maintained by Purchaser, Seller or their respective affiliates, as applicable, or (iii) obligate Purchaser, Seller or
any of their respective affiliates to maintain any particular employee benefit plan, program or arrangement.
(f) Seller
shall be solely responsible for any and all Liabilities arising under the WARN Act and relating to any of its employees whose employment
is terminated by Seller prior to, upon, or following the Closing, including any Employees who do not receive offers of employment from
Purchaser or its affiliates.
(g) To
the extent not prohibited by Law and not subject to attorney-client privilege or other work product privilege, Seller shall provide Purchaser,
at Purchaser’s expense, with copies of all records relating to Transferred Employees promptly following the date on which Purchaser
notifies Seller of the identity of any Offered Employee; provided, however, that Seller have the right to retain original
files.
(h) Seller
and its “selling group” (as defined in Treasury Regulation Section 54.4980B-9, Q&A-2(a) (the “Selling
Group”)) shall be solely responsible for providing continuation coverage under COBRA, if required by Law, to those individuals who
are M&A qualified beneficiaries (as defined in Treasury Regulation Section 54.4980B-9, Q&A-4(a)) with respect to the transactions
contemplated by this Agreement (“M&A Qualified Beneficiaries”). In the event that no member of the Selling Group
maintains any group health plan at any time after the Closing Date, and Purchaser is deemed to be a successor employer (as defined in
Treasury Regulation Section 54.4980B-9, Q&A-8(b)(i)) to the Selling Group for the purposes of the continuation of coverage requirements
under COBRA, Seller shall immediately notify Purchaser in the event that the Selling Group ceases to provide continued COBRA coverage
to M&A Qualified Beneficiaries for any reason other than the failure by the M&A Qualified Beneficiary to pay applicable premiums
or the expiration of the required period of coverage under COBRA.
Section 6.11 Purchase
of Personal Property Subject to Lease. With respect to any Contract for the lease of Personal Property, if (a) such Contract
is recharacterized by a Final Order of the Bankruptcy Court as a secured financing or (b) Purchaser, Seller and the counterparty
to such Contract agree, then Purchaser shall have the option to purchase such Personal Property by paying to Seller for the benefit of
the counterparty to such Contract an amount equal to the amount, as applicable (i) of such counterparty’s allowed secured Claim
arising in connection with the recharacterization of such Contract as determined by such Order or (ii) agreed to by Purchaser, Seller
and such counterparty, subject to any required Bankruptcy Court authorization or approval.
Section 6.12 Tax
Matters.
(a) All
transfer, documentary, sales, use, stamp, registration and other Taxes and fees (including any penalties and interest), incurred in connection
with the transactions consummated pursuant to this Agreement with respect to the Purchased Assets conveyed by Seller will be paid by Seller.
Any Tax returns that are required to be filed in connection with transfer Taxes shall be prepared by Seller, at its own expense. Without
limiting the foregoing, Purchaser and Seller will cooperate in all reasonable respects to prepare and file all necessary returns, reports
and estimates and other documentation with respect to all such transfer, documentary, sales, use, stamp, registration and other Taxes
and fees.
(b) Seller
shall be liable for and shall pay all applicable federal, state and local taxes (other than income taxes of Purchaser and, to the extent
attributable to the period of time after Closing, gross receipts taxes), duties and other like charges properly payable by Seller upon
and in connection with the conveyance and transfer of the Purchased Assets to Purchaser, the income of Seller or sales made by Seller.
Seller shall, at its own expense, timely file any tax return or other document with respect to such Taxes or fees (and Purchaser shall
cooperate with respect thereto as necessary). Prior to Closing, Seller shall deliver a completed certification of non-foreign status pursuant
to Section 1.1445-2(b)(2) of the Treasury regulations duly executed by Seller and an IRS Form W-9 claiming a complete exemption
from backup withholding each in form reasonably satisfactory to Purchaser. For the avoidance of doubt, Purchaser shall pay all taxes with
respect to the Purchased Assets for all periods after Closing, including sales, use and personal property taxes. Purchaser hereby acknowledges
and agrees that Purchaser shall not withhold any Taxes from the Purchase Price payable to Seller. Seller agrees to indemnify and hold
harmless Purchaser for any and all Tax liability that may be imposed on Purchaser by any Tax Authority for any failure to properly withhold
any Tax amount under applicable Tax law.
(c) Seller
and Purchaser shall cooperate fully, as and to the extent reasonably requested by the other party, in connection with the filing of Income
Tax Returns and any proceeding relating to Taxes.
(d) The
parties hereby waive compliance with the provisions of any bulk sales, bulk transfer or similar Laws of any jurisdiction that may otherwise
be applicable with respect to the sale of any or all of the Purchased Assets to Purchaser. Seller agrees to indemnify and hold harmless
Purchaser from and against any and all Liabilities that may be asserted by third parties against Purchaser as a result of noncompliance
with any such bulk sales or transfer Law.
Section 6.13 Collection
of Receivables.
(a) As
of the Closing Date, Seller hereby (i) authorizes Purchaser to open any and all mail addressed to Seller relating to the Business
or the Purchased Assets and delivered to the offices of the Business or otherwise to Purchaser if received on or after the Closing Date
and (ii) appoints Purchaser its attorney-in-fact to endorse, cash and deposit any monies, checks or negotiable instruments received
by Purchaser after the Closing Date with respect to Receivables made payable or endorsed to Seller or Seller’s order, for Purchaser’s
own account. All mail relating to Excluded Assets or Retained liabilities shall be prompted forwarded by Purchaser to Seller.
(b) As
of the Closing Date, Seller agrees that any monies, checks or negotiable instruments received by Seller after the Closing Date with respect
to Receivables shall be held in trust by Seller for Purchaser’s benefit and account, and promptly upon receipt by Seller of any
such payment, Seller shall pay over to Purchaser the amount of such payments without any right of set off or reimbursement.
(c) Without
limiting the foregoing, Seller will deposit into the bank account designated by Purchaser (the “Designated Receivables Account”)
within three (3) business days after receipt all amounts received by Seller constituting Receivables. Seller will deliver written
instructions no later than three (3) business days following the Closing to all customers with Receivables to deliver all payments
with respect thereto directly to the Designated Receivables Account. Seller will maintain its bank accounts to accept any Receivables
for 120 days following the Closing.
Section 6.14 Due
Diligence Reports. Purchaser and Seller shall cause the preparation of the due diligence reports below (subject to Seller’s
right to order and pay for certain of the following due diligence reports), and Purchaser shall pay or reimburse Seller, as the case may
be, for the reasonable, documented, actual cost (up to a maximum amount equivalent to 2.5% of the Aggregate Purchase Price) of the following
due diligence reports related to the Business and the Purchased Assets (the “Due Diligence Reports”), which shall be
conducted by the following third party independent advisors mutually agreed upon by the parties and to be engaged by Seller:
(a) due
diligence reports prepared by Forvis, LLP, which shall include accounting and other material information related to Seller;
(b) a
Phase 1 Environmental Site Assessment (“ESA”) New York Facility prepared by CT Male;
(c) an
inventory appraisal (work-in-progress, raw material, and finished goods) prepared by 1st Star Alacer LLC;
(d) a
fair market value appraisal of the equipment prepared by 1st Star Alacer LLC;
(e) an
intellectual property summary memorandum prepared by Forvis, LLP;
(f) an
analysis report regarding manufacturing vendors and processes prepared by Forvis LLP;
(g) an
Environmental Compliance Review and OSHA General Industry Review New York Facility prepared by CT Male;
(h) an
ALTA/NSPS Land Title Survey prepared by CT Male;
(i) an
Owned Real Property title report issued by the Title Company; and
(j) a
zoning compliance report issued by the Town of Stuyvesant, New York.
Such Due Diligence Reports shall be
for the benefit of, and made available to, Seller, and Seller may share such Due Diligence Reports with other prospective bidders of the
Business under the supervision of the Bankruptcy Court. The Seller Reimbursable Expenses shall be paid as follows: (i) to Seller
from the sale proceeds at Closing; or (ii) to Seller by offset against the Purchaser Reimbursable Expenses to the extent the Purchaser
Reimbursable Expenses is triggered pursuant to Section 6.2(a) herein.
ARTICLE VII
CONDITIONS TO CLOSING
Section 7.1 Conditions
Precedent to the Obligations of the Parties. The respective obligations of the parties hereto to consummate the transactions
contemplated hereby are subject to the satisfaction, at or prior to the Closing, of each of the following conditions:
(a) there
shall not be in effect any Order issued, or legislation enacted, by any Governmental Body of competent jurisdiction restraining, enjoining,
delaying, or otherwise prohibiting the consummation of the transactions contemplated hereby or the Ancillary Agreements;
(b) there
shall not be any Claims or investigations commenced by any person, organization, or Governmental Body for the purpose of restraining,
enjoining, delaying, or otherwise prohibiting the consummation of the transactions contemplated hereby or the Ancillary Agreements; and
(c) the
Bankruptcy Court shall have entered the Final Sale Order, the Final Sale Order shall be in full force and effect and not stayed and shall
not have been reversed or modified since the date of its entry.
Section 7.2 Conditions
Precedent to the Obligations of Seller. Subject to the entry of the Final Sale Order and such other authorization and
approval as is required by the Bankruptcy Court, the obligation of Seller to consummate the transactions contemplated hereby is subject
to the satisfaction, at or prior to the Closing, of each of the following conditions (any or all of which may be waived by Seller, in
whole or in part, to the extent permitted by applicable Law):
(a) the
representations and warranties of Purchaser contained herein shall be true and correct in all material respects at and as of the Closing,
except to the extent expressly made as of a specified date or with respect to a specific period of time, in which case such representations
and warranties shall be true and correct in all material respects as of such specified date or with respect to such period of time, and
Seller shall have received a certificate signed by an authorized officer of Purchaser (in such capacity and without personal liability
of any kind), dated the Closing Date, to such effect;
(b) Purchaser
shall have performed and complied in all material respects with all agreements and covenants required by this Agreement to be performed
or complied with by it on or prior to the Closing Date, and Seller shall have received a certificate signed by an authorized officer of
Purchaser (in such capacity and without personal liability of any kind), dated the Closing Date, to such effect; and
(c) Purchaser
shall have delivered, or caused to be delivered, to Seller all of the items required to be delivered to Seller in Section 8.4.
Section 7.3 Conditions
Precedent to the Obligations of Purchaser. Notwithstanding any other provision of this Agreement to the contrary, the
obligation of Purchaser to consummate the transactions contemplated hereby is subject to the satisfaction, at or prior to the Closing,
of each of the following conditions (any or all of which may be waived by Purchaser, in whole or in part, to the extent permitted by applicable
Law):
(a) (i) the
Seller Fundamental Representations shall be true and correct in all respects at and as of the Execution Date and at and as of the Closing
Date, with the same force and effect as though such representations and warranties had been made at and as of the Closing Date (except
to the extent that any such representation or warranty is expressly made as of a specified date or with respect to a specific period of
time, in which case it shall be true and correct in all respects as of such specified date or with respect to such period of time) and
(ii) the other representations and warranties set forth in Article IV of this Agreement shall be true and correct in
all material respects at and as of the Execution Date and at and as of the Closing Date, as if made at and as of the Closing Date, other
than those representations and warranties that are made as of a specific date or with respect to a specific period of time, which representations
and warranties need not be true and correct in all material respects as of the Closing Date but must be true and correct in all material
respects as of such specific date or with respect to such period of time (provided, that, in each case, for purposes of this Section 7.3(a)(ii),
in determining whether such representations and warranties are true and correct, all qualifications in such representations or warranties
as to “material,” “in all material respects,” Seller Material Adverse Effect or similar materiality qualifiers
shall be disregarded), and Purchaser shall have received a certificate signed by an authorized officer of Seller (in such capacity and
without personal liability of any kind), dated the Closing Date, to such effect;
(b) Seller
shall have performed and complied in all material respects with all agreements and covenants required by this Agreement to be performed
or complied with by it on or prior to the Closing Date, and Purchaser shall have received a certificate signed by an authorized officer
of Seller (in such capacity and without personal liability of any kind), dated the Closing Date, to such effect;
(c) Seller
shall have delivered, or caused to be delivered, to Purchaser all of the items required to be delivered to Purchaser in Section 8.3;
(d) a
Final Sale Order duly rendered by the Bankruptcy Court;
(e) except
with respect to the Environmental Liabilities, Seller shall have removed, or caused to be removed, from the Owned Real Property all regulated
waste generated by or in association with the Business or the sale thereof prior to the Closing and shall deliver to Purchaser at Closing
a certificate (satisfactory in form and substance to Purchaser and its counsel) confirming that all such regulated waste has been removed
(for purposes of this covenant and certification, the term “regulated waste” shall not be construed to include “waste”
or Hazardous Materials previously spilled or released into soil or groundwater on or below the Owned Real Property). For the avoidance
of doubt, nothing set forth herein shall require Seller to remove, or cause to be removed, from the Owned Real Property, any regulated
waste from the underlying land or groundwater;
(f) in
the event that Purchaser is not the purchaser of the St. Louis Business, Purchaser shall have received the Transition Agreement, duly
executed by each purchaser of the assets of the St. Louis Business;
(g) since
the Execution Date, the Business has been conducted in the Ordinary Course of Business (except as disclosed in Section 4.20
of Seller’s Disclosure Schedule) and no Seller Material Adverse Effect shall have occurred;
(h) Purchaser’s
reasonable satisfaction with the state of all material title and survey matters with respect to the Owned Real Property after Seller’s
delivery and Purchaser’s review and analysis of an ALTA/NSPS Land Title Survey prepared by CT Male with respect to the Owned Real
Property; provided, that Purchaser shall have fourteen (14) days from delivery of such survey to object to any material and adverse
title or survey matters, and Seller shall have fourteen (14) days after notice of any objections to present a reasonable cure or other
resolution for Purchaser’s consideration and reasonable approval;
(i) the
Title Company shall be committed to issue to Purchaser a title insurance policy for the Owned Real Property insuring Purchaser’s
good and marketable, indefeasible fee title to the Owned Real Property, in form consistent with the Title Commitment, subject to the Permitted
Liens (the “Title Policy”); and
(j) Seller
shall have an Inventory level at the St. Louis Facility (and shall provide a written report thereof to Purchaser) which,
when purchased by Purchaser (at actual out-of-pocket costs plus, if warranted, a reasonable
allocation of overhead), can secure the supply of the Business Products
manufactured by Seller for the Business at the St. Louis Facility prior to Closing for a period of at least ninety (90) days following
the Closing Date, excluding the Inventory in Seller’s sales channel as of the Closing Date; provided, that such Inventory level
shall be determined based on actual sales of such Business Products by or on behalf of Seller over the twelve (12) months immediately
preceding the Closing.
ARTICLE VIII
CLOSING
Section 8.1 Closing.
Subject to the entry of the Final Sale Order and such other authorization and approval as is required by the Bankruptcy Court,
the closing of the purchase and sale of the Purchased Assets provided for in Article II (the “Closing”)
shall take place remotely via electronic exchange of executed documents and other deliverables within seven (7) business days after
the Final Sale Order or, if the conditions set forth in Article VII (other than the conditions that by their nature are to
be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions at Closing) are not satisfied or waived on or
prior to such date, on the date that is five (5) business days after the satisfaction or waiver in writing of all of the conditions
to the obligations of the parties set forth in Article VII (other than the conditions that by their nature are to be satisfied
at the Closing, but subject to the satisfaction or waiver of such conditions at Closing) or at such other time, date or place as may be
mutually agreed to in writing by Purchaser and Seller. The date on which the Closing is held is referred to herein as the “Closing
Date.” The transfer of the Purchased Assets shall be deemed to take place and be effective at 12:01 A.M. St. Louis,
Missouri time (the “Effective Time”) on the Closing Date.
Section 8.2 Proceedings
at Closing. Subject to the entry of the Final Sale Order and such other authorization and approval as is required by the
Bankruptcy Court, at the Closing, (i) Seller shall take the actions and deliver the documents referred to in Section 8.3
and (ii) Purchaser shall take the actions and deliver the documents referred to in Section 8.4. All actions to be taken
and all documents to be executed and delivered by Seller in connection with the consummation of the transactions contemplated at the Closing
shall be reasonably satisfactory in form and substance to Purchaser and its counsel, and all actions to be taken and all documents to
be executed and delivered by Purchaser in connection with the consummation of the transactions contemplated at the Closing shall be reasonably
satisfactory in form and substance to Seller and its counsel. All actions to be taken and all documents to be executed and delivered by
all parties hereto at the Closing shall be deemed to have been taken and executed and delivered simultaneously, and no action shall be
deemed taken nor any document executed or delivered until all have been taken, executed, and delivered.
Section 8.3 Deliveries
by Seller. At the Closing, Seller shall deliver, or cause to be delivered, to Purchaser (or such other person as may be
indicated below):
(a) a
true and correct copy of the Sale Order duly rendered by the Bankruptcy Court;
(b) one
or more bills of sale duly executed by Seller in the form attached hereto as Exhibit C (except for dates and other relevant
information needed to complete and effectuate such bills of sale) evidencing the transfer of the Purchased Assets to Purchaser (each a
“Bill of Sale”);
(c) one
or more assignment and assumption agreements duly executed by Seller in the form attached hereto as Exhibit D (except for
dates and other relevant information needed to complete and effectuate such assignment and assumption agreements) evidencing the transfer
of certain of the Purchased Assets to Purchaser (each, an “Assignment and Assumption Agreement”);
(d) a
Bargain and Sale Deed with Covenants Against Grantor’s Acts, duly executed by Seller in the form attached hereto as Exhibit E,
evidencing the transfer of the Owned Real Property to Purchaser;
(e) one
or more Intellectual Property assignment agreements duly executed by Seller in the form attached hereto as Exhibit F (except
for dates and other relevant information needed to complete and effectuate such assignment agreements) (each, an “IP Assignment
Agreement”)
(f) a
certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Seller certifying that attached thereto are true and
complete copies of all resolutions adopted by the board of directors of Seller authorizing the execution, delivery and performance of
this Agreement and the Ancillary Agreements and the consummation of the transactions contemplated hereby and thereby, and that all such
resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and
thereby;
(g) evidence
of the release and termination of any Monetary Liens, and other Claims and Liens, if any, associated with all indebtedness owed by Seller
to the Secured Lender with respect to the Purchased Assets;
(h) (i) copies
of the management accounts for the period from April 1, 2023 to the end of the month immediately preceding the Closing Date (provided,
however, if the Closing Date is on or before the 15th day of a month, then the period will be from April 1, 2023 through the end
of the month prior to the month immediately preceding the Closing Date), (ii) a Receivables aging report as of the Closing Date,
and (iii) a Customer Credits report as of the Closing Date, in each case, in form and substance reasonably acceptable to Purchaser;
(i) such
other endorsements, assignments and instruments of conveyance, transfer and release, in form and substance reasonably acceptable to Purchaser,
as Purchaser may reasonably request to assign and convey the Purchased Assets to Purchaser and vest title therein in Purchaser (in each
case free and clear of all Monetary Liens, and other Claims and Liens other than Permitted Liens) and effectuate or consummate the other
transactions contemplated hereby or any Ancillary Agreement;
(j) to
the Title Company (i) an ALTA title affidavit and GAP indemnity (if required) in connection with the issuance of the Title Policy
to Purchaser; (ii) any required transfer tax affidavits or certifications, including a New York State Combined Real Estate Transfer
Tax Return, Credit Line Mortgage Certificate and Certificate of Exemption from the Payment of Estimated Personal Income Tax, New York
Form RP-5217 Real Property Transfer Report, and other forms required by the State of New York and Columbia County in connection with
a conveyance of the Owned Real Property, as applicable (collectively, the “Transfer Documents”); and (iii) such
other documents as are reasonably required by the Title Company; and
(k) Seller’s
most recent sales and use tax return evidencing payment of all pre-Closing sales and use taxes then due.
Section 8.4 Deliveries
by Purchaser. At the Closing, Purchaser shall deliver, or cause to be delivered, to Seller (or such other person as may
be indicated below):
(a) The
Closing Cash Payment as set forth in Section 3.3;
(b) one
or more Bills of Sale duly executed by Purchaser evidencing the transfer of the Purchased Assets to Purchaser;
(c) one
or more Assignment and Assumption Agreements duly executed by Purchaser evidencing the transfer of certain of the Purchased Assets to,
and the assumption of the Assumed Liabilities by, Purchaser;
(d) in
the event Purchaser is not the purchaser of the St. Louis Business, the Transition Agreement duly executed by Purchaser; and
(e) such
other documents, instruments and other agreements as Seller may reasonably request to carry out the transactions contemplated by this
Agreement.
ARTICLE IX
TERMINATION
Section 9.1 Termination.
This Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closing as follows:
(a) At
any time on or before the Closing by the mutual consent in writing of Seller and Purchaser;
(b) By
either Purchaser or Seller if this Agreement is not approved by the Bankruptcy Court within sixty (60) days after the Petition Date, unless
extended by mutual consent in writing of Seller and Purchaser;
(c) By
either Purchaser or Seller if the Sale Order is not entered and becomes a Final order within fourteen (14) days after the Auction, unless
extended by mutual consent in writing of Seller and Purchaser;
(d) By
either Purchaser or Seller if the Closing shall not have occurred prior to October 1, 2023 (“Outside Date”), unless
extended by mutual consent in writing of Seller and Purchaser; provided, that a party shall not be permitted to terminate this
Agreement pursuant to this Section 9.1(d) if the failure of the Closing to have occurred by the Outside
Date was caused by the breach of such party with respect to any obligation or condition of this Agreement;
(e) By
Purchaser, if Seller breaches any representation, warranty, covenant or agreement contained in this Agreement, and such breach (i) would
result in a failure of a condition set forth in Section 7.1 or 7.3 and (ii)(A) cannot be cured by the Outside
Date or (B) if capable of being cured, has not been cured by the earlier of (1) ten business days after the giving of written
notice by Purchaser to Seller of such breach (which notice shall specify in reasonable detail the nature of such breach and Purchaser’s
intention to terminate this Agreement if such breach is not cured) and (2) one business day prior to the earlier of the Outside Date
and the date on which this Agreement may otherwise be terminated by Purchaser in accordance with this Section 9.1; provided,
however, that Purchaser is not then in breach of any representation, warranty, covenant or agreement contained in this Agreement
that would result in a failure of a condition set forth in Section 7.1 or 7.2;
(f) By
Seller, if Purchaser breaches any representation, warranty, covenant or agreement contained in this Agreement, and such beach (i) would
result in a failure of a condition set forth in Section 7.1 or 7.2 and (ii)(A) cannot be cured by the Outside
Date or (B) if capable of being cured, has not been cured by the earlier of (1) ten business days after the giving of written
notice by Seller to Purchaser of such breach (which notice shall specify in reasonable detail the nature of such breach and Seller’s
intention to terminate this Agreement if such breach is not cured) and (2) one business day prior to the earlier of the Outside Date
and the date on which this Agreement may otherwise be terminated by Seller in accordance with this Section 9.1; provided,
however, that Seller is not then in breach of any representation, warranty, covenant or agreement contained in this Agreement would
result in a failure of a condition set forth in Section 7.1 or 7.3;
(g) By
Seller or Purchaser if there is in effect a Final, non-appealable Order of a Governmental Body of competent jurisdiction restraining,
enjoining or otherwise prohibiting the consummation of the transactions contemplated by this Agreement or the Ancillary Agreements, it
being agreed that the parties hereto shall promptly appeal any adverse determination which is not non-appealable and pursue such appeal
with reasonable diligence unless and until this Agreement is terminated pursuant to this Section 9.1; provided, that
a party may not terminate this Agreement pursuant to this Section 9.1(g) if such party’s breach of any of its representations,
warranties, covenants or agreements contained herein resulted in such Order.
(h) By
Seller in the event of a successful Initial Overbid or Subsequent Overbid pursuant to the Bid Procedures Order;
(i) By
Purchaser if any Bankruptcy Court Milestones are not met;
(j) By
Purchaser if a Seller Material Adverse Effect has occurred; or
(k) by
Purchaser, if, prior to the Closing, the Bankruptcy Case is converted into a case under Chapter 7 of the Bankruptcy Code or dismissed
or if a trustee is appointed in the Bankruptcy Case.
Section 9.2 Notice
of Termination. If this Agreement is terminated pursuant to Section 9.1 (other than a termination under Section 9.1(a),
which shall not require notice), then the terminating party shall forthwith give written notice of termination to the other party specifying
the subsection of Section 9.1 pursuant to which such termination is made.
Section 9.3 Effect
of Termination.
(a) In
the event of a termination of this Agreement due to an Initial Overbid or Subsequent Overbid or an Alternative Transaction, subject to
the Bid Procedures Order, and subject to Purchaser’s payment of the Seller Reimbursable Expenses, Seller shall pay the Purchaser
Reimbursable Expenses to Purchaser following the closing of any Alternative Transaction, and Seller and Purchaser shall send a Joint Written
Direction to the Escrow Agent, on the date of the closing of such Alternative Transaction, directing the Escrow Agent to pay the Deposit
to Purchaser on such date.
(b) In
the event of any other termination of this Agreement and the abandonment of the proposed transaction without breach by any party hereto,
the inability to obtain Bankruptcy Court approval in a Sale Order, or the conversion of the case to Chapter 7, this Agreement shall (except
as otherwise expressly provided herein) become void and have no effect, without any liability on the part of any party or the managers,
directors, officers, shareholders, or members of any party and Seller and Purchaser shall send a Joint Written Direction to the Escrow
Agent, on the date of such termination, directing the Escrow Agent to pay the Deposit to Purchaser on such date.
(c) In
the event of termination of this Agreement and the abandonment of the proposed transactions by the non-breaching party due to a breach
of this Agreement by the other party, this Agreement shall (except as otherwise expressly provided herein) become void and have no effect,
without any liability on the part of the other party or its directors, officers or shareholders.
(d) In
the event Seller terminates this Agreement due to a breach on the part of Purchaser pursuant to Section 9.1(f), Seller and
Purchaser shall send a Joint Written Direction to the Escrow Agent, on the date of such termination, directing the Escrow Agent to pay
the Deposit to Seller on such date, and in the event of any other termination of this Agreement (including by Purchaser pursuant to Section 9.1(e)),
Seller and Purchaser shall send a Joint Written Direction to the Escrow Agent, on the date of such termination, directing the Escrow Agent
to pay the Deposit to Purchaser on such date.
(e) In
the event of termination of this Agreement as provided in Section 9.1, this Agreement shall forthwith become void and
there shall be no liability on the part of either party except (i) for the provisions of Section 6.7, this Article IX,
and Article X and (ii) that no such termination shall relieve either party from liability for any willful and material
breach of this Agreement.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.1 Amendments.
This Agreement may be amended, modified or supplemented only pursuant to a written instrument making specific reference to
this Agreement and signed by each of the parties hereto.
Section 10.2 Assignment. Neither
this Agreement nor any right or obligation hereunder shall be assigned, delegated or otherwise transferred (whether voluntarily, by operation
of law, by merger or otherwise), without the prior written consent of the other party hereto; provided, however, that (a) Purchaser
may, without obtaining the prior written consent of, but after notice to, Seller, assign, delegate, or otherwise transfer its rights and
obligations hereunder to any affiliate or affiliates of Purchaser; provided, however, that any such assignment, delegation,
or other transfer shall not relieve Purchaser of its obligations hereunder; and (b) the rights and interests of Seller hereunder
may be assigned (i) by the Bankruptcy Court, or (ii) to a trustee appointed under chapter 11 or chapter 7 of the Bankruptcy
Code (if this Agreement has not otherwise been terminated pursuant to Section 9.1(i)). Each party shall execute such acknowledgements
of such assignments and collateral assignments in such forms as the other party may from time to time reasonably request. Any attempted
assignment, delegation or transfer in violation of this Section 10.2 shall be void and of no force or effect.
Section 10.3 Binding
Effect. Subject to Final authorization and approval as is required by the Bankruptcy Court, this Agreement shall be binding upon the
parties hereto and their respective legal representatives, successors and permitted assigns.
Section 10.4 Counterparts;
Electronic Transmission. This Agreement may be executed in multiple counterparts, all of which shall constitute one and the same instrument.
Any counterpart may be executed by facsimile signature or other electronic transmission and such facsimile signature or other electronic
transmission shall be deemed an original.
Section 10.5 Entire
Agreement. This Agreement (including the Exhibits and Schedules attached hereto), constitutes the entire agreement between the parties
hereto in respect of the subject matter hereof and supersedes any prior agreement or understanding between them in respect of such subject
matter.
Section 10.6 Equitable
Relief. Each party acknowledges and agrees that irreparable damage would occur if any of the obligations to be performed
by such party hereunder were not performed in accordance with their specific terms or were otherwise breached, and that damages at law
may be an inadequate remedy for breach of any of such party’s agreements and covenants contained in this Agreement. Accordingly,
the other party shall be entitled to injunctive relief to prevent any such breach, and to enforce specifically the terms of this Agreement,
including specific performance of such agreements and covenants or an Order enjoining the breaching party from any threatened, or from
continuation of any actual, breach of the agreements and covenants contained in this Agreement. The rights set forth in this Section 10.6
shall be in addition to any other rights that a party may have at law or in equity pursuant to this Agreement.
Section 10.7 Construction.
(a) General. The
Article and Section headings in this Agreement are for convenience of reference only and shall not be deemed to alter or affect
the meaning or interpretation of any provision hereof. Unless the context otherwise requires, (i) all references to Articles, Sections,
Schedules or Exhibits contained in this Agreement are references to articles, sections, schedules and exhibits of or to this Agreement,
(ii) words in the singular include the plural and vice versa, and (iii) words of any gender include each other gender.
Any agreement, instrument or Law defined or referred to herein means such agreement, instrument or Law as from time to time amended, qualified
or supplemented, including (in the case of agreements and instruments) by waiver or consent and (in the case of Laws) by succession of
comparable successor Laws. References to a person or entity are also to its successors and permitted assigns. Each party hereto acknowledges
that it participated in, or had a meaningful opportunity to participate in, the negotiations and drafting of this Agreement. If an ambiguity
or question of intent or interpretation arises in respect of this Agreement, then this Agreement shall be construed to be the product
of meaningful individualized negotiations between the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring
any party hereto by virtue of the authorship of any of the provisions of this Agreement.
(b) Time
Periods. If any time period set forth herein expires on a day that is not a business day, then such time period shall automatically
be extended to the first business day immediately after the non-business day on which such time period would have otherwise expired.
Section 10.8 Governing
Law. This Agreement shall be governed by and construed and enforced in accordance
with the laws of the State of DELAWARE (without regard to principles of conflicts of laws that would require the application of the laws
of a jurisdiction other than the state of delaware), EXCEPT TO THE EXTENT SUCH LAWS ARE SUPERSEDED BY THE BANKRUPTCY CODE OR OTHER APPLICABLE
FEDERAL LAW.
Section 10.9 Jurisdiction;
Venue. Without limiting any party’s right to appeal any order of the Bankruptcy Court, the Bankruptcy Court shall
retain sole jurisdiction over any claim, controversy or dispute relating to this Agreement or any of the transactions contemplated hereby;
provided, however, if the Bankruptcy Court is unwilling or unable to hear any such claim, controversy or dispute, then the
courts of the State of Missouri in St. Louis County and the United States District Court for the Eastern District of Missouri and
the appellate courts having jurisdiction of appeals in such courts shall have sole exclusive jurisdiction over any such claim,
controversy or dispute. Each of the parties hereto hereby irrevocably and unconditionally
(i) submits and consents for itself and its property in any action, suit, proceeding or investigation relating to this Agreement
or for recognition of and enforcement of any judgment in respect thereof, to the exclusive jurisdiction of such courts and that all claims
in respect of any such action, suit, proceeding or investigation shall be heard and determined only in such courts, (ii) waives any
objection that it may now or hereafter have to the venue or jurisdiction of any such action, suit, proceeding or investigation in such
courts or that any such action, suit, proceeding or investigation was brought in an inconvenient forum (and agrees not to plead or claim
the same) and (iii) agrees that service of process in any such action, suit, proceeding or investigation may be effected by mailing
a copy of such process by certified mail, postage prepaid, to such party at its address set forth in Section 10.10. The parties
intend that all foreign jurisdictions will enforce any order of the Bankruptcy Court in any litigation arising out of or relating to this
Agreement or any Ancillary Agreement.
Section 10.10 Notices.
All notices, requests, demands, or other communications required or permitted to be given hereunder by any party hereto to
any other party shall be in writing and delivered (i) in person, (ii) by a nationally recognized overnight courier service requiring
acknowledgment of receipt of delivery, (iii) by United States certified or registered mail, postage prepaid and return receipt requested,
or (iv) by electronic mail, as follows:
If to Seller,
to:
Allied Healthcare
Products, Inc.
1720 Sublette Avenue
St. Louis, MO 63110
Attention: Akash
Amin
E-Mail: akash.amin@morrisanderson.com
with a copy to (which
shall not constitute notice):
Greensfelder, Hemker &
Gale, P.C.
10 S. Broadway,
Suite 2000
St. Louis, MO 63102
Attention: Edward
A. Chod
E-Mail: eac@greensfelder.com
and to:
Spencer Fane LLP
1 North Brentwood
Boulevard, Suite 1000
St. Louis, MO 63105
Attention: Eric
C. Peterson
E-Mail: epeterson@spencerfane.com
and to:
Spencer Fane LLP
1000 Walnut, Suite 1400
Kansas City, MO
64106
Attention: Zach
Fairlie
E-mail: zfairlie@spencerfane.com
and to:
Ravinia Capital LLC
125 South Wacker Dr., Suite 300
Chicago, IL
60606
Attention: Tom
Goldblatt, Managing Partner
E-mail: tgoldblatt@raviniacapitalllc.com
If to Purchaser,
to:
Allied Medical,
LLC
c/o Flexicare Inc.
15281 Barranca
Pkwy, Unit D
Irvine, CA 92618
Attention: Hash
Poormand
Email: hash.poormand@flexicare.com
with a copy to (which
shall not constitute notice):
Armstrong Teasdale
LLP
1007 North Market Street
Wilmington, DE 19801
Attention:
Eric M. Sutty
E-mail: esutty@atllp.com
and to:
Armstrong Teasdale
LLP
2005 Market Street,
29th Floor
One Commerce Square
Philadelphia, PA
19103
Attention: Michael
A. Petrizzo, Jr.
E-mail: mpetrizzo@atllp.com
and to:
King &
Spalding LLP
1185 Avenue of
the Americas
34th Floor
New York, NY 10036
Attention: Scott
Davidson
E-mail: sdavidson@kslaw.com
Notice shall be deemed given, received, and effective
on: (i) if given by personal delivery or courier service, the date of actual receipt by the receiving party, or if delivery is refused
on the date delivery was first attempted; (ii) if given by certified or registered mail, the third day after being so mailed if posted
with the United States Postal Service; and (iii) if given by e-mail, the date on which the e-mail is electronically confirmed if
confirmed by transmission report during the transmitter’s normal business hours, or at the beginning of the next business day after
transmission if confirmed at any time other than the transmitter’s normal business hours. Any person entitled to notice may change
any address or e-mail address to which notice is to be given to it by giving notice of such change of address or e-mail address as provided
in this Section 10.10. The inability to deliver notice because of changed address or e-mail address of which no notice was
given shall be deemed to be receipt of the notice as of the date such attempt was first made.
Section 10.11 No
Recourse. Notwithstanding any other provision of this Agreement to the contrary, no past, present or future officer, director,
partner, member, manager, equity holder, controlling person, employee, contractor, agent or representative of the parties hereto shall
have any liability for any liability or obligation of Seller or Purchaser, as applicable, under this Agreement or any other agreement
or document contemplated hereby for any claim based on, arising out of, or relating to the transactions contemplated hereby and thereby.
Any claim or cause of action based upon, arising out of or relating to this Agreement or any agreement or document contemplated hereby
may only be brought against persons that are expressly named as parties hereto or thereto, and then only in respect of the specific obligations
set forth herein or therein. Other than the parties hereto, no other party shall have any liability or obligation for any of the liabilities
or obligations of any party under this Agreement or any other agreement or document contemplated hereby or thereby or for any action,
suit or proceeding based upon, arising out of or relating to the transactions contemplated hereby or thereby (including the breach, termination
or failure to consummate such transactions).
Section 10.12 Remedies.
(a) Notwithstanding
anything to the contrary in this Agreement, if Purchaser breaches this Agreement (whether willfully, intentionally, unintentionally or
otherwise) or fails to perform hereunder (whether willfully, intentionally, unintentionally or otherwise), then, except for the right
to seek specific performance in accordance with Section 10.6, the sole and exclusive remedies (whether at law, in equity,
in contract, in tort or otherwise) against the Purchaser for any breach, loss, damage or failure to perform under this Agreement or other
document delivered in connection herewith or otherwise or in respect of any oral representation made or alleged to have been made in connection
herewith or therewith shall be for Seller to receive payment of the Deposit as provided in Section 9.3(d). For the avoidance
of doubt, Seller shall be permitted or entitled to receive both a grant of specific performance to cause the Closing to occur and payment
of the Deposit pursuant to Section 3.3(a).
(b) Notwithstanding
anything to the contrary in this Agreement, if Seller breaches this Agreement (whether willfully, intentionally, unintentionally or otherwise)
or fails to perform hereunder (whether willfully, intentionally, unintentionally or otherwise), then, except for the right to seek specific
performance in accordance with Section 10.6, the sole and exclusive remedies (whether at law, in equity, in contract, in tort
or otherwise) against the Seller for any breach, loss, damage or failure to perform under this Agreement or any document delivered in
connection herewith or otherwise or in respect of any oral representation made or alleged to have been made in connection herewith or
therewith shall be for Purchaser to receive payment of the Purchaser Reimbursable Expenses as provided in Section 6.2(a) or
Section 9.3(a) and return of the Deposit as provided in Section 9.3(d). For the avoidance of doubt, while
Purchaser may concurrently seek (i) specific performance or other equitable relief, subject in all respects to Section 10.6
and (ii) payment of the Purchaser Reimbursable Expenses as provided in Section 6.2(a) or Section 9.3(a) and
return of the Deposit as provided in Section 9.3(d), under no circumstances shall the Purchaser be permitted or entitled to
receive both a grant of specific performance to cause the Closing to occur and return of the Deposit.
(c) Except
as otherwise expressly set forth herein, the rights, powers and remedies provided hereunder are cumulative and are not exclusive of any
rights, powers and remedies provided by applicable Law.
Section 10.13 Severability.
Each provision of this Agreement shall be deemed severable. If any provision of this Agreement, or the application of such provision
to any person or circumstance, shall be held invalid, illegal or unenforceable by a court of competent jurisdiction, then the remainder
of this Agreement or the application of such provision to other persons or circumstances or in other jurisdictions shall not be affected
thereby.
Section 10.14 Survival.
Except for any covenant that by its terms is to be performed (in whole or in part) by any party following the Closing, the representations
and warranties contained in this Agreement or in any document delivered in connection with the transactions contemplated hereby shall
not survive the Closing and none of the parties shall have any liability or obligation to any other party, including any indemnity obligations
of any kind, after Closing for any breach thereof or any other provision of this Agreement. For the avoidance of doubt, nothing set forth
herein shall restrict or prevent Seller from liquidating after the Closing.
Section 10.15 No
Third-Party Beneficiaries. This Agreement and the covenants made herein are made expressly and solely for the benefit
of the parties hereto, and no other person shall be entitled or be deemed to be entitled to any benefits or rights hereunder, nor be authorized
or entitled to enforce any rights, claims or remedies hereunder or by reason hereof.
Section 10.16 Time
Is of the Essence. Time is of the essence in the performance of this Agreement.
Section 10.17 Waiver
of Bulk Sales Laws. To the maximum extent not prohibited by applicable Law, the parties hereto hereby waive compliance
by Purchaser and Seller with the terms of any bulk sales or similar Laws in any applicable jurisdiction in respect of the transactions
contemplated by this Agreement. The Sale Order shall exempt Purchaser and Seller from compliance with any such Laws.
Section 10.18 Waiver
of Trial by Jury. TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, EACH PARTY HERETO, HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, SUIT OR PROCEEDING, DIRECTLY OR INDIRECTLY,
AT ANY TIME ARISING OUT OF, OR RELATING TO, THIS AGREEMENT.
Section 10.19 Waivers.
No waiver of any provision hereof, or consent required hereunder, or any consent or departure from this Agreement, shall be
valid or binding unless expressly and affirmatively made in writing and duly executed by the party to be charged with such waiver. No
waiver shall constitute or be construed as a continuing waiver or a waiver in respect of any subsequent breach or default, either of similar
or different nature, unless expressly so stated in such writing. No delay, forbearance or neglect by any party hereto, whether in one
or more instances, in the exercise of any right, power, privilege or remedy hereunder or in the enforcement of any provision of this Agreement
shall constitute or be construed as a waiver thereof. The single or partial exercise of any right, power, privilege or hereunder or under
applicable Law shall not preclude any other or further exercise of any other right, power, privilege or remedy.
Section 10.20 Seller’s
Right to Continue Marketing. Notwithstanding anything in this Agreement to the contrary, Seller has the right to continue to
solicit competing offers for the purchase of the Purchased Assets from third parties pursuant to the Bid Procedures Order, and this Agreement
is subject to Overbids as set forth in the Bid Procedures Order.
* * * * *
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IN WITNESS WHEREOF, the parties
hereto have executed and delivered this Agreement as of the Execution Date.
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ALLIED HEALTHCARE PRODUCTS, INC. |
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[Signature
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