Dennis F. Dunne, Esq. (admitted pro hac vice) Michael A. Condyles, Esq. (VA 27807)

Evan R. Fleck, Esq. (admitted pro hac vice) Peter J. Barrett, Esq. (VA 46179)

Michael W. Price, Esq. (admitted pro hac vice)

MILBANK LLP

Jeremy S. Williams, Esq. (VA 77469)

Brian H. Richardson, Esq. (VA 92477)

55 Hudson Yards KUTAK ROCK LLP

New York, New York 10001 901 East Byrd Street, Suite 1000

Telephone: (212) 530-5000 Richmond, Virginia 23219-4071

Facsimile: (212) 530-5219 Telephone: (804) 644-1700

Facsimile: (804) 783-6192

Co-Counsel for Debtors in Possession

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

)

In re: ) Chapter 11

)

GYMBOREE GROUP, INC., et al.,

1 ) Case No. 19-30258 (KLP)

)

Debtors. ) (Jointly Administered)

)

AMENDED NOTICE OF SUCCESSFUL BIDDERS, SALE HEARING, AND 

ADJOURNMENT OF THE ADEQUATE ASSURANCE OBJECTION DEADLINE

WHEREAS on January 17, 2019, the United States Bankruptcy Court for the Eastern 

District of Virginia entered an order (the “Bidding Procedures Order”)

2 authorizing certain bidding 

procedures (the “Bidding Procedures”)

3 to be used in connection with the sale(s) of the assets of 

 

1 The Debtors in these cases, along with the last four digits of each Debtor’s federal tax identification number, 

are Gymboree Group, Inc. (6587); Gymboree Intermediate Corporation (1473); Gymboree Holding 

Corporation (0315); Gymboree Wholesale, Inc. (6588); Gym-Mark, Inc. (6459); Gymboree Operations, Inc. 

(6463); Gymboree Distribution, Inc. (8669); Gymboree Manufacturing, Inc. (6464); Gymboree Retail Stores, 

LLC (6461); Gym-Card, LLC (5720); and Gymboree Island, LLC (1215). The Debtors’ service address is 

71 Stevenson Street, Suite 2200, San Francisco, California 94105.

2 The Bidding Procedures Order is entitled Order (I)(A) Approving Bidding Procedures, (B) Approving J&J 

Stalking Horse Purchase Agreement, (C) Scheduling an Auction and Approving Form and Manner of Notice 

Thereof, (D) Approving Assumption and Assignment Procedures and (E) Scheduling the Sale Hearing; (II) 

Approving (A) the Sale(s), Free and Clear of Encumbrances and (B) Assumption and Assignment of 

Executory Contracts and Unexpired Leases; and (III) Granting Related Relief [Docket No. 76].

3 The Bidding Procedures are attached to the Bidding Procedures Order as Exhibit 1. 

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the above-captioned debtors in possession (the “Debtors”) and therein approved the Notice of 

Auction and Sale (the “Sale Notice”);

4 and

WHEREAS the Sale Notice, as amended, stated that the auction (the “Auction”) would 

take place on March 1, 2019 at 9:00 a.m. (prevailing Eastern Time) (the “Auction Time”) at the 

offices of Milbank LLP, 55 Hudson Yards, New York, New York 10001:

PLEASE TAKE NOTICE THAT the Debtors commenced the Auction at the Auction 

Time.

PLEASE TAKE FURTHER NOTICE THAT, as announced on the record of the 

Auction, the Debtors, in consultation with the Consultation Parties,5 determined that the offer

submitted by The Gap, Inc. (the “JJ Successful Bidder”) to acquire certain assets related to the 

Janie and Jack® business, as more fully described in (a) the Asset Purchase Agreement dated as 

of March 1, 2019, by and between The Gap, Inc., as buyer, Gymboree Group, Inc. and certain of 

its subsidiaries, as sellers (the “JJ Asset Purchase Agreement”) and (b) the Asset Purchase

Agreement and Bill of Sale dated as of March 1, 2019, by and among Gymboree Group, Inc., The 

Gap, Inc., and, solely with respect to sections 1 and 2(b) thereof, GA Retail, Inc., Tiger Capital 

Group, LLC, Gordon Brothers Retail Partners, LLC, and Hilco Merchant Resources, LLC (the “JJ 

Inventory Purchase Agreement”), was the highest and best offer with respect to the assets 

described in the JJ Asset Purchase Agreement. A copy of the JJ Asset Purchase Agreement is 

attached hereto as Exhibit A. A copy of the JJ Inventory Purchase Agreement, which provides 

for the termination of the GOB Sales with respect to Janie and Jack®, and the amendment and 

exercise of the J&J Option (each as defined in the Order (I) Authorizing Entry into the Agency 

Agreement, (II) Authorizing and Approving the Sale of Certain of the Debtors’ Assets and the 

Conduct of Store Closing Sales, and (III) Granting Related Relief [Docket No. 62]), is attached 

hereto as Exhibit B. 

PLEASE TAKE FURTHER NOTICE THAT, as announced on the record of the 

Auction, the Debtors, in consultation with the Consultation Parties, determined that the offer 

submitted by TCP Brands, LLC (the “Gymboree/Crazy 8 Successful Bidder”) to acquire certain 

assets related to the Gymboree ® and Crazy 8 ® businesses, as more fully described in the Asset 

Purchase Agreement, dated as of March 1, 2019, by and between TPC Brands, LLC, as buyer, 

Gymboree Group, Inc. and certain of its subsidiaries, as sellers (the “Gym/Crazy 8 Asset Purchase 

Agreement”), was the highest and best offer with respect to the assets described in Gym/Crazy 8 

Asset Purchase Agreement. A copy of the Gym/Crazy 8 Asset Purchase Agreement is attached 

hereto as Exhibit C. 

PLEASE TAKE FURTHER NOTICE THAT the executory contracts and unexpired 

leases proposed to be assumed and assigned to the JJ Successful Bidder or its designee pursuant 

to the JJ Asset Purchase Agreement are identified in Exhibit D hereto (the “JJ Assumption and 

 

4 The Sale Notice is attached to the Bidding Procedures Order as Exhibit 3.

5 Capitalized terms not defined herein shall have the meanings ascribed to them in the Bidding Procedures.

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Assignment Notice”). Attached hereto as Exhibit E is the proposed adequate assurance 

information provided by the JJ Successful Bidder.

PLEASE TAKE FURTHER NOTICE THAT the executory contracts proposed to be 

assumed and assigned to the Gym/Crazy 8 Successful Bidder or its designee pursuant to the 

Gym/Crazy 8 Asset Purchase Agreement are identified in Exhibit F hereto (the “Gym/Crazy 8 

Assumption and Assignment Notice”). Attached hereto as Exhibit G is the proposed adequate 

assurance information provided by the Gym/Crazy 8 Successful Bidder.

PLEASE TAKE FURTHER NOTICE THAT the deadline for Adequate Assurance 

Objections has been extended until March 4, 2019 at 11:00 a.m. (prevailing Eastern Time).

PLEASE TAKE FURTHER NOTICE THAT the hearing to consider approval of the 

transactions contemplated by the JJ Asset Purchase Agreement and the Gym/Crazy 8 Asset 

Purchase Agreement, each free and clear of liens, encumbrances and other interests, will 

commence on March 4, 2019 at 2:00 p.m. (prevailing Eastern Time) (the “Sale Hearing”). The 

Sale Hearing will be held before the Honorable Keith L. Phillips, United States Bankruptcy Judge, 

at the United States Bankruptcy Court for the Eastern District of Virginia, 701 East Broad Street, 

Suite 4000, Richmond, Virginia 23219.

[Remainder of page intentionally left blank]

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Dated: March 3, 2019 /s/ Brian H. Richardson

Richmond, Virginia Michael A. Condyles, Esq. (VA 27807)

Peter J. Barrett, Esq. (VA 46179)

Jeremy S. Williams, Esq. (VA 77469)

Brian H. Richardson, Esq. (VA 92477)

KUTAK ROCK LLP

901 East Byrd Street, Suite 1000

Richmond, Virginia 23219-4071

Telephone: (804) 644-1700

Facsimile: (804) 783-6192

Email: Michael.Condyles@KutakRock.com

Peter.Barrett@KutakRock.com

Jeremy.Williams@KutakRock.com

Brian.Richardson@KutakRock.com

-andDennis F. Dunne, Esq. (admitted pro hac vice)

Evan R. Fleck, Esq. (admitted pro hac vice)

Michael W. Price, Esq. (admitted pro hac vice)

MILBANK LLP

55 Hudson Yards

New York, New York 10001

Telephone: (212) 530-5000

Facsimile: (212) 530-5219

Email: ddunne@milbank.com

efleck@milbank.com

mprice@milbank.com

Co-Counsel for Debtors in Possession

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Exhibit A

JJ Asset Purchase Agreement

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EXECUTION VERSION

#4839-7420-7369v7

ASSET PURCHASE AGREEMENT

dated as of March 1, 2019

by and among

THE GAP, INC.,

as Buyer,

and

GYMBOREE GROUP, INC.

and

ITS SUBSIDIARIES SIGNATORY HERETO,

as Sellers

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TABLE OF CONTENTS

Page

#4839-7420-7369v7 -iARTICLE 1 DEFINITIONS.........................................................................................................................1

1.1 Defined Terms ....................................................................................................................1

1.2 Interpretation.....................................................................................................................13

ARTICLE 2 TRANSFER OF ASSETS AND ASSUMPTION OF LIABILITIES....................................14

2.1 Assets to be Acquired .......................................................................................................14

2.2 Excluded Assets................................................................................................................17

2.3 Liabilities to be Assumed by Buyer..................................................................................18

2.4 Excluded Liabilities..........................................................................................................19

2.5 [Reserved].........................................................................................................................20

2.6 Non-Assignment of Assumed Contracts...........................................................................20

2.7 Assumption and Assignment of Executory Contracts ......................................................21

ARTICLE 3 CLOSING; PURCHASE PRICE ...........................................................................................21

3.1 Closing; Transfer of Possession; Certain Deliveries.........................................................21

3.2 Consideration....................................................................................................................22

3.3 Allocation of Purchase Price.............................................................................................22

ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF SELLERS..............................................23

4.1 Organization......................................................................................................................23

4.2 Due Authorization, Execution and Delivery; Enforceability............................................23

4.3 Governmental Consents....................................................................................................23

4.4 No Conflicts......................................................................................................................23

4.5 Title to Acquired Assets ...................................................................................................24

4.6 Litigation; Orders..............................................................................................................24

4.7 Employment and ERISA Matters .....................................................................................25

4.8 Environmental...................................................................................................................26

4.9 Taxes.................................................................................................................................26

4.10 Compliance with Laws; Permits.......................................................................................27

4.11 Contracts...........................................................................................................................27

4.12 Insurance Claims...............................................................................................................27

4.13 Intellectual Property..........................................................................................................27

4.14 Anti-Corruption and Sanctions.........................................................................................28

4.15 Data Privacy......................................................................................................................28

4.16 Sufficiency........................................................................................................................29

4.17 Exclusive Representations and Warranties.......................................................................29

ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF BUYER .................................................29

5.1 Organization......................................................................................................................29

5.2 Due Authorization, Execution and Delivery; Enforceability............................................29

5.3 Governmental Approvals..................................................................................................30

5.4 No Conflicts......................................................................................................................30

5.5 Availability of Funds and Financial Capability ................................................................30

5.6 Adequate Assurances Regarding Executory Contracts.....................................................30

5.7 Condition and Location of Acquired Assets.....................................................................30

5.8 Exclusive Representations and Warranties.......................................................................30

5.9 No Other Representations or Warranties of Sellers; Disclaimers.....................................31

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TABLE OF CONTENTS

(continued)

Page

#4839-7420-7369v7 -iiARTICLE 6 COVENANTS OF THE PARTIES .......................................................................................32

6.1 Conduct of Jewel Business Pending the Closing..............................................................32

6.2 Back-Up Bidder................................................................................................................33

6.3 Access...............................................................................................................................33

6.4 Public Announcements.....................................................................................................33

6.5 Tax Matters.......................................................................................................................34

6.6 Approvals; Reasonable Best Efforts; Notification; Consent.............................................34

6.7 Employee Matters.............................................................................................................35

6.8 Further Assurances ...........................................................................................................37

6.9 Bankruptcy Court Filings..................................................................................................37

6.10 Cure Costs.........................................................................................................................37

6.11 Preservation of Books and Records..................................................................................37

6.12 Bulk Transfer Laws ..........................................................................................................38

6.13 Overhead and Shared Services; Transition Services.........................................................38

6.14 Payments from Third Parties After Closing......................................................................38

6.15 Letters of Credit................................................................................................................39

6.16 Notification of Certain Matters.........................................................................................39

6.17 Confidentiality ..................................................................................................................40

6.18 Communication With Other Bidders................................................................................40

6.19 Personally Identifiable Information ..................................................................................40

6.20 Sell-Off of Inventory ........................................................................................................40

6.21 Asset Identification ...........................................................................................................41

ARTICLE 7 CONDITIONS TO OBLIGATIONS OF THE PARTIES .....................................................41

7.1 Conditions Precedent to Obligations of Buyer .................................................................41

7.2 Conditions Precedent to the Obligations of Sellers ..........................................................42

7.3 Frustration of Conditions Precedent .................................................................................43

ARTICLE 8 TERMINATION....................................................................................................................43

8.1 Termination of Agreement................................................................................................43

8.2 Consequences of Termination...........................................................................................44

ARTICLE 9 MISCELLANEOUS ..............................................................................................................44

9.1 Expenses...........................................................................................................................44

9.2 Assignment .......................................................................................................................44

9.3 Parties in Interest ..............................................................................................................44

9.4 Releases ............................................................................................................................45

9.5 Notices..............................................................................................................................45

9.6 Choice of Law...................................................................................................................46

9.7 Entire Agreement; Amendments and Waivers..................................................................46

9.8 Counterparts; Facsimile and Electronic Signatures..........................................................46

9.9 Severability .......................................................................................................................46

9.10 Headings...........................................................................................................................46

9.11 Exclusive Jurisdiction and Specific Performance.............................................................47

9.12 WAIVER OF RIGHT TO TRIAL BY JURY...................................................................47

9.13 Survival.............................................................................................................................47

9.14 Computation of Time........................................................................................................48

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TABLE OF CONTENTS

(continued)

Page

#4839-7420-7369v7 -iii9.15 Time of Essence................................................................................................................48

9.16 Non-Recourse ...................................................................................................................48

9.17 Disclosure Schedules........................................................................................................48

9.18 Sellers’ Representative; Dealings Among Sellers ............................................................48

9.19 Mutual Drafting ................................................................................................................49

9.20 Fiduciary Obligations .......................................................................................................49

EXHIBITS

Exhibit A Form of Sale Order

Exhibit B Form of Transition Services Agreement

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#4839-7420-7369v7

ASSET PURCHASE AGREEMENT

This ASSET PURCHASE AGREEMENT, dated as of March 1, 2019 (the “Agreement Date”), is 

made and entered into by and among Gymboree Group, Inc., a Delaware corporation (“Gemstone”), and 

each of Gemstone’s Subsidiaries listed on the signature page hereto (together with Gemstone, “Sellers” and 

each, a “Seller”), and The Gap, Inc., a Delaware corporation (“Buyer”). Each Seller and Buyer are referred 

to herein individually as a “Party” and collectively as the “Parties”.

WITNESSETH:

WHEREAS, Sellers are currently engaged in the Jewel Business;

WHEREAS, on January 17, 2019, Gemstone and certain other Sellers filed a voluntary petition 

and commence a case (collectively, the “Chapter 11 Cases”) under chapter 11 of title 11 of the United States 

Code (the “Bankruptcy Code”) in the Bankruptcy Court (the date of such filing, the “Petition Date”); 

WHEREAS, the Chapter 11 Cases are being jointly administered by the Bankruptcy Court under 

case number 19-30258 (KLP) and are titled In re: Gymboree Group, Inc., et al., Debtors; and

WHEREAS, on the terms and subject to the conditions set forth herein and subject to the approval 

of the Bankruptcy Court, (a) Sellers wish to sell to Buyer, and Buyer wishes to purchase from Sellers, the 

Acquired Assets as of the Closing, and (b) Buyer is willing to assume from Sellers the Assumed Liabilities 

as of the Closing.

NOW, THEREFORE, in consideration of the representations, warranties, covenants and 

agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of 

which are hereby acknowledged, and intending to be legally bound hereby, the Parties hereto agree as 

follows:

ARTICLE 1

DEFINITIONS

1.1 Defined Terms. As used herein, the terms below shall have the following respective 

meanings:

“Acquired Assets” shall have the meaning specified in Section 2.1.

“Acquired Business Information” shall mean all books, financial information, records, files, 

ledgers, documentation, instruments, research, papers, data, marketing materials and information, sales or 

technical literature or similar information that, in each case, is in the possession or control of any Seller 

and, in each case, is Relating to the Jewel Business or primarily or exclusively related to the Acquired 

Assets, including, for the avoidance of doubt, (i) files and assignment documentation pertaining to 

existence, availability, registrability or ownership of any of the Transferred Intellectual Property and 

documentation of the development, conception or reduction to practice thereof and (ii) all information and 

documentation pertaining to product history, historical financial performance records, including SKU 

levels, and other product information with respect to all products related to the Jewel Business.

“Additional Assets” shall have the meaning specified in Section 6.21.

“Additional Lease” shall have the meaning specified in Section 2.1(e).

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#4839-7420-7369v7 2

“Affiliate” shall, with respect to any Person, mean any other Person that directly, or indirectly 

through one or more intermediaries, controls, or is controlled by, or is under common control with, the 

Person specified, where “control” means the possession, directly or indirectly, of the power to direct or 

cause the direction of the management policies of a Person, through ownership of voting securities or rights, 

by contract, as trustee, executor or otherwise.

“Agreement” shall mean this Asset Purchase Agreement, together with the exhibits and the 

Disclosure Schedules, in each case as amended, restated, supplemented or otherwise modified from time to 

time.

“Agreement Date” shall have the meaning specified in the preamble.

“Allocation” shall have the meaning specified in Section 3.3.

“Alternative Transaction” shall mean (i) any investment in, financing of, capital contribution or 

loan to, or restructuring or recapitalization of a Seller or any Affiliate of a Seller (including any exchange 

of all or a substantial portion of a Seller’s or its Affiliates’ outstanding debt obligations for equity securities 

of one or more Sellers or their respective Affiliates), (ii) any merger, consolidation, share exchange or other 

similar transaction to which a Seller or any of its Affiliates is a party that has the effect of transferring, 

directly or indirectly, all or a substantial portion of the assets of, or any issuance, sale or transfer of equity 

interests in, a Seller, the Acquired Assets or the Jewel Business, (iii) any direct or indirect sale of all or a 

substantial portion of the assets of, or any issuance, sale or transfer of equity interests in, a Seller, the 

Acquired Assets or the Jewel Business or (iv) any other transaction, including a plan of liquidation or 

reorganization (in any jurisdiction, whether domestic, foreign, international or otherwise), in each instance 

(A) that transfers or vests ownership of, economic rights to, or benefits in all or a substantial portion of the 

Acquired Assets or the Jewel Business to any party other than Buyer and (B) whether or not such 

transactions are entered into in connection with any bankruptcy, insolvency or similar Proceedings; 

provided, however, that notwithstanding the foregoing, any investment in, financing of, capital contribution 

or loan to, or any sale of assets of, a Seller or any Affiliate of a Seller that would not reasonably be expected 

to, individually or in the aggregate, interfere with or impede the Transactions, interfere with, limit or modify 

any of Buyer’s rights or privileges hereunder or result in the imposition of any liabilities or costs on Buyer 

or any of its Affiliates shall not be considered an “Alternative Transaction”.

“Anti-Corruption Laws” shall mean applicable laws enacted to prohibit bribery and corruption, 

including the U.S. Foreign Corrupt Practices Act of 1977 (as amended), the UK Bribery Act 2010, and 

applicable laws enacted to implement the OECD Convention on Combating Bribery of Foreign Officials in 

International Business Transactions.

“Anti-Corruption Prohibited Activity” shall mean (a) using funds in violation of Anti-Corruption 

Laws for unlawful contributions, gifts, or entertainment, or other unlawful expenses relating to political 

activity, or (b) making or taking an act in furtherance of an offer, promise, or authorization of any bribe, 

rebate, payoff, influence payment, kickback or other similar payment, whether directly or indirectly to any 

Governmental Entity or to any private commercial entity for the purpose of either gaining an improper 

business advantage or encouraging the recipient to violate the policies of his or her employer or to breach 

an obligation of good faith or loyalty in violation of Anti-Corruption Laws.

“Anti-Money Laundering Laws” shall mean applicable laws relating to money laundering and 

terrorism financing, including the USA PATRIOT Act of 2001, the U.S. Money Laundering Control Act 

of 1986, as amended; the applicable financial recordkeeping and reporting requirements of the U.S. 

Currency and Foreign Transaction Reporting Act of 1970, as amended; the EU Anti-Money Laundering 

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#4839-7420-7369v7 3

Directives and any laws, decrees, administrative orders, circulars, or instructions implementing or 

interpreting the same; and other similar applicable laws and regulations.

“Approved Budget” shall have the meaning specified in the DIP Facility.

“Assignment and Assumption Agreement” shall mean one or more assignment and assumption 

agreements to be entered into by Sellers and Buyer concurrently with the Closing in a form mutually agreed 

to by the Parties.

“Assumed Contracts” shall have the meaning specified in Section 2.1(e).

“Assumed Liabilities” shall have the meaning specified in Section 2.3.

“Auction” shall have the meaning specified in the Bidding Procedures.

“Avoidance Actions” shall mean any and all claims for relief of any Seller under chapter 5 of the 

Bankruptcy Code.

“Back-Up Bidder” shall have the meaning specified in Section 6.2. 

“Bankruptcy Code” shall have the meaning specified in the recitals.

“Bankruptcy Court” shall mean the United States Bankruptcy Court for the Eastern District of 

Virginia (Richmond Division).

“Bankruptcy Rules” shall mean the Federal Rules of Bankruptcy Procedure as promulgated by the 

United States Supreme Court under section 2075 of title 28 of the United States Code, 28 U.S.C. § 2075, 

as applicable to the Chapter 11 Cases, and the general, local and chambers rules of the Bankruptcy Court.

“Benefit Plan” shall mean any employee benefit plan (as defined in Section 3(3) of ERISA) or any 

deferred compensation, bonus, pension, retirement, profit sharing, savings, incentive compensation, stock 

purchase, stock option or other equity or equity-linked compensation, disability, death benefit, 

hospitalization, medical, dental, life, employment, retention, change in control, termination, severance, 

separation, vacation, sick leave, holiday pay, paid time off, leave of absence, fringe benefit, compensation, 

incentive, insurance, welfare or any similar plan, program, policy, practice, agreement or arrangement 

(including any funding mechanism therefor), written or oral, whether or not subject to ERISA, and whether 

funded or unfunded, in each case that is adopted, sponsored, maintained, entered into, contributed to, or 

required to be maintained or contributed to, by any Seller or any Subsidiary of any Seller for the benefit of 

any Employee, or pursuant to or in connection with which any Seller or any Subsidiary of any Seller could 

have any Liabilities in respect of any Employee or beneficiary of any Employee.

“Bidding Procedures” shall mean the bid procedures in the form annexed as Exhibit 1 to the Bidding 

Procedures Order.

“Bidding Procedures Order” shall mean the Order of the Bankruptcy Court dated January 17, 2019, 

and appearing as item number 76 on the docket of the Bankruptcy Court in the Chapter 11 Cases.

“Business Day” shall mean any day other than a Saturday, Sunday or a legal holiday on which 

banking institutions in the State of New York are not required to open.

“Buyer” shall have the meaning specified in the preamble.

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“Buyer Material Adverse Effect” shall mean a material adverse effect on the ability of Buyer to 

consummate the Transactions.

“Buyer Released Parties” shall have the meaning specified in Section 9.4.

“Chapter 11 Cases” shall have the meaning specified in the recitals.

“Claim” shall mean all actions, claims, counterclaims, suits, proceedings, rights of action, causes 

of action, Liabilities, losses, damages, remedies, penalties, judgments, settlements, costs, expenses, fines, 

disbursements, demands, reasonable costs, fees and expenses of counsel, including in respect of 

investigation, interest, demands and actions of any nature or any kind whatsoever, known or unknown, 

disclosed or undisclosed, accrued or unaccrued, matured or unmatured, choate or inchoate, legal or 

equitable, and arising in tort, contract or otherwise, including any “claim” as defined in the Bankruptcy 

Code.

“Closing” shall have the meaning specified in Section 3.1(a).

“Closing Date” shall have the meaning specified in Section 3.1(a).

“Code” shall mean the Internal Revenue Code of 1986, as amended.

“Contract” shall mean any contract, agreement, indenture, note, bond, loan, instrument, lease, 

conditional sales contract, purchase order, mortgage, license, franchise, insurance policy, letter of credit, 

commitment or other binding arrangement or commitment, whether or not in written form, that is binding 

upon a Person or any of its property.

“Credit Agreement” shall mean that certain Credit Agreement, dated as of September 29, 2017, by 

and among Gemstone, as lead borrower, Gymboree Intermediate Corporation, as a guarantor, Goldman 

Sachs Specialty Lending Group, Inc., in its capacity as Administrative Agent, and the lenders and other 

parties party thereto.

“Cure Costs” shall mean all cure costs that must be paid pursuant to section 365 of the Bankruptcy 

Code in connection with the assumption and assignment of the Assumed Contracts as finally determined 

by the Bankruptcy Court.

“Designated Purchasers” shall have the meaning specified in Section 2.1.

“DIP Facility” shall mean that certain Superpriority Secured Debtor-in-Possession Credit 

Agreement, dated as of January 18, 2019, by and among Gemstone, the other Borrowers (as defined therein) 

party thereto from time to time, Gymboree Intermediate Corporation, a Delaware corporation, the other

Guarantors (as defined therein) party thereto from time to time, each a debtor and debtor-in-possession in 

cases pending under chapter 11 of the Bankruptcy Code, the Lenders (as defined therein) and Special 

Situations Investing Group, Inc., a Delaware corporation, as Administrative Agent and Collateral Agent.

“Disclosure Schedules” shall mean the disclosure schedules, delivered by Sellers and Buyer 

concurrently with the execution and delivery of this Agreement, as amended from time to time in 

accordance with and subject to the terms hereof.

“E-Commerce Platform” shall mean the series of software and hardware applications including 

computer hardware and cloud servers, that are integrated into, and through which Sellers sell inventory to 

consumers who place orders for such inventory through, the www.JanieandJack.com (and similar 

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#4839-7420-7369v7 5

permutations thereof) websites, including the Contracts pursuant to which such software and hardware 

applications are owned or licensed by Sellers.

“Employees” shall mean all individuals, as of the date hereof, whether or not actively at work as of 

the date hereof, who (i) are employed by any of the Sellers or their Subsidiaries, (ii) provide services in 

connection with the Jewel Business, and (iii) are listed on Schedule 6.7(a), together with individuals who 

are hired in respect of the Jewel Business after the date hereof and prior to the Closing.

“Employee List” shall have the meaning specified in Section 6.7(a).

“Employee Offer List” shall have the meaning specified in Section 6.7(a).

“Employment Offer” shall have the meaning specified in Section 6.7(b).

“Environmental Laws” shall mean all Laws relating to pollution, storage, transport, release of, 

contamination by, or exposure to Hazardous Materials, or protection of the environment, natural resources,

human safety, or human health (to the extent related to exposure to Hazardous Materials).

“Equipment” shall have the meaning specified in Section 2.1(f).

“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended.

“ERISA Affiliate” shall mean any Person that, by reason of its relationship with any Seller, is 

aggregated with such Seller under Section 414 of the Code.

“Excluded Assets” shall have the meaning specified in Section 2.2.

“Excluded Contracts” shall mean all Contracts other than Assumed Contracts.

“Excluded Information” shall mean (i) any personnel records, books, files or other documentation 

relating to any employees; provided that any personnel records (including without limitation those 

pertaining to training, performance, salary, compensation, benefits, visa status, and I-9 information) relating 

to the Transferred Employees shall not be Excluded Information to the extent that Sellers can provide such 

records to Buyer in compliance with Law, (ii) any Tax records, (iii) any books, records, files, ledgers, 

documentation or similar information that any Seller is required by Law (including Laws relating to 

privilege or privacy) or by any Contract to retain and/or not to disclose; provided that to the extent any such 

information described in this clause (iii) relates to the Jewel Business, Sellers will disclose the existence of 

such confidential information and the applicable contract or agreement to which it relates and Sellers will 

use their respective commercially reasonable efforts to seek waivers from the relevant third party in order 

to provide Buyer such information and (iv) all records and reports prepared by or for any Seller or its 

Affiliates or Representatives in connection with the sale of Sellers, any of their Affiliates or any of their 

respective businesses or any portion thereof (including the Jewel Business), including all analyses relating 

thereto so prepared or received, all confidentiality agreements with prospective purchasers thereof and all 

bids and expressions of interest received from third parties with respect thereto; provided that this clause 

(iv) will not exclude any diligence information regarding the Acquired Assets, the Assumed Liabilities or 

the Jewel Business that was provided or made available to other bidders or potential bidders in connection 

with the Auction process.

“Excluded Liabilities” shall have the meaning specified in Section 2.4.

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“Export Control and Customs Laws” shall mean applicable export control laws and regulations, 

including the EC Regulation 428/2009 and the implementing laws and regulations of the EU member states; 

the U.S. Export Administration Act, U.S. Export Administration Regulations, U.S. Arms Export Control 

Act, U.S. International Traffic in Arms Regulations, and their respective implementing rules and 

regulations; the U.K. Export Control Act 2002 (as amended and extended by the Export Control Order 

2008); and all import laws administered by all applicable Governmental Entities, including the Tariff Act 

of 1930, as amended, the Trade Act of 1974, the Trade Expansion Act of 1962, and other Laws and 

programs administered or enforced by the U.S. Department of Commerce, U.S. International Trade 

Commission, U.S. Customs and Border Protection, and U.S. Immigration and Customs Enforcement and 

their predecessor agencies.

“Facilities” shall mean all buildings and fixtures owned or leased by Sellers, located on the Leased 

Real Property and Relating to the Jewel Business, but excluding for the avoidance of doubt (i) power lines, 

pipelines, telephone lines and other improvements and fixtures owned by public utilities furnishing utilities 

to the Leased Real Property, and (ii) rail lines, pipelines and other improvements and fixtures owned by 

third parties and located on existing easements for such purpose which encumber the Leased Real Property.

“FIRPTA Affidavit” shall mean an affidavit of each Seller (or, if such Seller is a disregarded entity 

for U.S. federal income tax purposes, its regarded owner) that is a U.S. Person, sworn to under penalty of 

perjury, setting forth such Seller’s (or, if applicable, regarded owner’s) name, address and U.S. federal tax 

identification number and stating that such Seller (or, if applicable, regarded owner) is not a “foreign 

person” within the meaning of Section 1445 of the Code and otherwise complying with the Treasury 

Regulations issued pursuant to Section 1445 of the Code.

“Fraud” shall mean an actual and intentional misrepresentation of material facts with respect to 

(i) the making of any representation or warranty of Sellers set forth in Article 4 or in any other Transaction 

Document or (ii) the certifications of Sellers set forth in the certificates delivered by Sellers pursuant to 

Section 7.1(c), in each case which satisfies all of the elements of common law fraud under applicable Law.

“GAAP” shall mean generally accepted accounting principles as in effect from time to time in the 

United States.

“Gemstone” shall have the meaning specified in the preamble.

“Good Faith Deposit” shall have the meaning specified in the Bidding Procedures.

“Governmental Entity” shall mean any federal, state, provincial, local, municipal, foreign, 

multinational, international or other (a) government, (b) governmental or quasi-governmental authority of 

any nature (including any governmental agency, branch, department, official, or entity and any court or 

other tribunal), or (c) body exercising, or entitled to exercise, any administrative, executive, judicial, 

legislative, police, regulatory, or taxing authority or power of any nature, including any arbitration tribunal 

or stock exchange.

“Hazardous Material” shall mean any material, substance or waste defined, listed or regulated as a 

“contaminant” or “pollutant” or as “hazardous” or “toxic” (or words of similar meaning or intent) under 

any applicable Environmental Law, including materials exhibiting the characteristics of ignitability, 

corrosivity, reactivity or toxicity, as such terms are defined in connection with hazardous materials, 

hazardous wastes or hazardous or toxic substances in any applicable Environmental Law and including 

asbestos, petroleum and petroleum breakdown constituents and polychlorinated biphenyls.

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“HSR Act” shall mean the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, 

and any successor law and the rules and regulations thereunder or under any successor law.

“Incremental Deposit Amount” shall have the meaning specified in the Bidding Procedures. 

“Indebtedness” of any Person shall mean, without duplication: (i) the principal of and premium (if 

any) in respect of (A) indebtedness of such Person for money borrowed and (B) indebtedness evidenced by 

notes, debentures, bonds or other similar instruments for the payment of which such Person is responsible 

or liable; (ii) all obligations of such Person issued or assumed as the deferred purchase price of property, 

all conditional sale obligations of such Person and all obligations of such Person under any title retention 

agreement (but excluding trade accounts payable and other accrued current liabilities arising in the Ordinary 

Course of Business); (iii) all obligations of such Person under leases required to be capitalized in accordance 

with GAAP; (iv) all obligations of such Person for the reimbursement of any obligor on any letter of credit, 

banker’s acceptance or similar credit transaction; (v) all obligations of the type referred to in clauses (i)

through (iv) of any Persons for the payment of which such Person is responsible or liable, directly or 

indirectly, as obligor, guarantor, surety or otherwise, including guarantees of such obligations; and (vi) all 

obligations of the type referred to in clauses (i) through (v) of other Persons secured by any Lien on any 

property or asset of such Person (whether or not such obligation is assumed by such Person).

“Intellectual Property” shall mean any and all worldwide rights in and to all intellectual property 

rights or assets (whether arising under statutory or common law, contract or otherwise), which include all 

of the following items: (i) inventions, discoveries, processes, designs, tools, molds, techniques, 

developments and related improvements whether or not patentable; (ii) patents, patent applications, 

industrial design registrations and applications therefor, divisions, divisionals, continuations, continuationsin-part, reissues, substitutes, renewals, registrations, confirmations, re-examinations, extensions and any 

provisional applications, requests for continuing examinations or continuing prosecution applications, or 

any such patents or patent applications, and any foreign or international equivalent of any of the foregoing; 

(iii) trademarks (whether registered, unregistered or pending), historical trademark files, trade dress, service 

marks, service names, trade names, brand names, product names, logos, distinguishing guises and indicia, 

domain names, internet rights (including IP Addresses and AS numbers), social media addresses and 

accounts, corporate names, fictitious names, other names, symbols (including business symbols), slogans, 

translations of any of the foregoing and any foreign or international equivalent of any of the foregoing and 

all goodwill associated therewith and (to the extent transferable by Law) any applications and/or 

registrations in connection with the foregoing and all advertising and marketing collateral including any of 

the foregoing (“Trademarks”); (iv) work specifications, tech specifications, databases and artwork; 

(v) technical scientific and other know-how and information (including promotional material), trade secrets, 

confidential information, methods, processes, practices, formulas, designs, design rights, patterns, assembly 

procedures, and specifications; (vi) drawings, prototypes, molds, models, tech packs, artwork, archival 

materials and advertising materials, copy, commercials, images, artwork and samples; (vii) rights 

associated with works of authorship including copyrights, moral rights, design rights, rights in databases, 

copyright applications, copyright registrations, rights existing under any copyright laws and rights to 

prepare derivative works; (viii) work for hire; (ix) all tangible embodiments of, and all intangible rights in, 

the foregoing; (x) the right to sue for infringement and other remedies against infringement of any of the 

foregoing, including the right to sue and collect for past infringement; and (xi) rights to protection of 

interests in the foregoing under the laws of all jurisdictions.

“Interim Period” shall have the meaning specified in Section 6.1.

“Inventory” shall mean any inventories of finished goods, children’s clothing and apparel and 

packaging and supplies.

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“Inventory Purchase Agreement” shall mean that certain Asset Purchase Agreement and Bill of 

Sale, dated on or about March 1, 2019 by and among Gemstone, Buyer and, solely with respect to 

paragraphs 1 and 2 (e) thereof, GA Retail, Inc., Tiger Capital Group, LLC, Gordon Brothers Retail Partners, 

LLC, and Hilco Merchant Resources, LLC.

“Jewel Brick and Mortar Business” shall mean Sellers’ business of operating brick-and-mortar 

retail stores under the “Janie and Jack®” brand name and selling children’s clothing and apparel under the 

“Janie and Jack®” brand name or related Trademarks included in the Transferred Trademarks at such retail 

store locations.

“Jewel Business” shall mean the “Janie and Jack®” business as conducted as of the Agreement 

Date, including (i) the Jewel E-Commerce Business, (ii) the Jewel Brick and Mortar Business and 

(iii) designing, sourcing, importing, marketing, advertising, promoting, distributing and selling children’s 

clothing and apparel under the brand name “Janie and Jack®” through distribution and sales to domestic 

and international customers and distributors and through the Jewel Brick and Mortar Business and/or the 

Jewel E-Commerce Business; provided that, in each case, if the context expressly refers to the conduct of 

the Jewel Business following the Closing, then the “Jewel Business” shall refer to such business as 

conducted by Buyer and its Affiliates following the Closing.

“Jewel E-Commerce Business” shall mean Sellers’ businesses of (i) owning, exploiting, and 

licensing the brand name “Janie and Jack®” (and certain other Trademarks included in the Transferred 

Intellectual Property, including under the Assumed Contracts) and (ii) distributing and selling children’s 

clothing and apparel under the brand name “Janie and Jack®” through the E-Commerce Platform; provided

that, in each case, if the context expressly refers to the conduct of the Jewel E-Commerce Business 

following the Closing, then the “Jewel E-Commerce Business” shall refer to such business as conducted by 

Buyer and its Affiliates following the Closing.

“Jewel Inventory” shall mean any Inventory under the “Janie and Jack®” brand name or related 

Trademarks included in the Transferred Trademarks utilized in the conduct of the Jewel Business.

“Knowledge” shall mean, with respect to Sellers, the actual knowledge of the Chief Executive 

Officer, Chief Financial Officer or General Counsel of Gemstone after due inquiry.

“Law” shall mean any federal, state, provincial, local, foreign, international or multinational 

constitution, statute, law, ordinance, regulation, rule, code, Order, principle of common law, or decree 

enacted, promulgated, issued, enforced or entered by any Governmental Entity, or court of competent 

jurisdiction, or other requirement or rule of law.

“Leased Real Property” shall have the meaning specified in Section 2.1(e).

“Liabilities” shall mean, as to any Person, all debts, adverse Claims, liabilities, commitments, 

responsibilities, and obligations of any kind or nature whatsoever, direct or indirect, absolute or contingent, 

whether accrued or unaccrued, vested or otherwise, liquidated or unliquidated, whether known or unknown, 

and whether or not actually reflected, or required to be reflected, in such Person’s balance sheet or other 

books and records.

“Lien” shall have the meaning specified in section 101(37) of the Bankruptcy Code and shall 

include any pledge, option, charge, lien, debentures, trust deeds, hypothecation, easement, security interest, 

right-of-way, encroachment, mortgage, deed of trust, defect of title, restriction on transferability, restriction 

on use or other encumbrance, in each case whether imposed by agreement, law, equity or otherwise.

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“Liquidation Agreement” shall mean that certain Agency Agreement, dated as of the Agreement 

Date, by and among Gemstone and its Subsidiaries party thereto, on the one hand, and GA Retail, Inc., 

Tiger Capital Group, LLC, Gordon Brothers Retail Partners, LLC, and Hilco Merchant Resources, LLC 

(collectively, the “Agent”), on the other hand, approved by the Bankruptcy Court.

“Local Bankruptcy Rules” shall mean the Local Bankruptcy Rules for the Eastern District of 

Virginia (Richmond Division) applicable to all cases in such district governed by the Bankruptcy Code.

“Multiemployer Plan” shall mean a “multiemployer plan” as defined in Section 3(37) of ERISA.

“Necessary Consent” shall have the meaning specified in Section 2.6.

“Neutral Accountant” shall mean a national independent accounting firm selected by Buyer and 

reasonably acceptable to Sellers.

“Notices” shall have the meaning specified in Section 9.5.

“Order” shall mean any judgment, order, injunction, writ, ruling, decree, stipulation, determination, 

decision, verdict, or award of any Governmental Entity.

“Ordinary Course of Business” shall mean that an action taken by a Person will be deemed to have 

been taken in the “Ordinary Course of Business” only if that action is taken in the ordinary course of 

business of such Person, consistent with past practices, recognizing that Sellers have filed the Chapter 11 

Cases.

“Outside Back-Up Date” shall mean the date that is sixty (60) days after the date of the Sale Hearing 

(as defined in the Bidding Procedures).

“Overhead and Shared Services” shall mean the ancillary, corporate or other shared services or 

processes that are provided by Gemstone or its Affiliates to (i) the Jewel Business and (ii) any Retained 

Business, including services and processes relating to: travel; meeting management and entertainment; 

labor; office supplies (including copiers and faxes); personal telecommunications (including e-mail); 

computer/telecommunications maintenance and support; software application and data hosting services; 

energy/utilities; procurement and supply arrangements; advertising and marketing; treasury; public 

relations, legal and regulatory matters; risk management (including workers’ compensation); payroll; 

procurement cards and travel cards; telephone/data connectivity; disaster recovery; accounting; tax; internal 

audit; executive management; quality control and oversight; product design and engineering; human 

resources and employee relations management; employee benefits; credit, collections and accounts payable; 

property management; facility management; site security; asset management; supply chain and 

manufacturing; global trade compliance; and customs and excise matters; provided, however, that for the 

avoidance of doubt, Overhead and Shared Services shall not include any Acquired Assets.

“Owned Equipment” shall have the meaning specified in Section 2.1(f).

“Party” or “Parties” shall have the meaning specified in the preamble.

“Permits” shall mean permits, licenses, registrations, certificates of occupancy, approvals, 

consents, clearances and other authorizations issued by any Governmental Entity.

“Permitted Liens” shall mean: (a) Liens for Taxes not yet due and payable or which are being 

contested in good faith by appropriate proceedings; (b) statutory liens of landlords, carriers, warehousemen, 

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mechanics, and materialmen incurred in the Ordinary Course of Business for sums not yet due; (c) liens 

incurred or deposits made in the Ordinary Course of Business in connection with workers’ compensation, 

unemployment insurance and other types of social security; (d) applicable zoning, subdivision, building 

and other land use Laws and other land use restrictions that do not impair the present use of the subject 

Real Property; (e) liens or encumbrances that arise solely by reason of acts of Buyer or its successors and 

assigns or otherwise consented to by Buyer in accordance with the terms of this Agreement; (f) easements, 

covenants, conditions, restrictions and other similar encumbrances on Real Property that arise in the 

Ordinary Course of Business; (g) non-exclusive licenses granted in the Ordinary Course of Business; or (h) 

any Lien that will be removed or released by operation of the Sale Order or any other Order of the 

Bankruptcy Court, including, without limitation, any Lien granted or incurred in connection with an Order 

of the Bankruptcy Court and any Lien granted or incurred in connection with the Credit Agreement, the 

DIP Facility or that certain Credit Agreement, dated as of September 29, 2017, by among Gemstone and 

certain of its affiliates, as the loan parties thereunder, Bank of America, N.A., as administrative agent and 

collateral agent thereunder, and the lenders from time to time party thereto.

“Person” shall mean an individual, a partnership, a joint venture, a corporation, a business trust, a 

limited liability company, a trust, an unincorporated organization, a joint stock company, a labor union, an 

estate, a Governmental Entity or any other entity.

“Personal Information” shall have the meaning specified in Section 4.15.

“Petition Date” shall have the meaning specified in the recitals.

“PII” shall have the meaning specified in Section 6.19.

“Post-Closing Covenant” shall have the meaning specified in Section 9.13.

“Proceeding” shall mean any action, arbitration, audit, known investigation (including a notice of 

preliminary investigation or formal investigation), notice of violation, hearing, litigation or suit (whether 

civil, criminal or administrative), other than the Chapter 11 Cases, commenced, brought, conducted or heard 

by or before any Governmental Entity, including but not limited to any and all such actions related to 

restitution or remission in criminal proceedings and civil forfeiture and confiscation proceedings under the 

Law of any jurisdiction.

“Properties” shall have the meaning specified in Section 4.8(a).

“Property Taxes” shall mean all Real Property Taxes, personal property Taxes and similar ad 

valorem Taxes.

“Purchase Price” shall have the meaning specified in Section 3.2.

“Real Property” shall mean any real estate, land, building, structure, improvement or other real 

property of any kind or nature whatsoever owned, leased or occupied by any Person, and all appurtenant 

and ancillary rights thereto, including easements, covenants, water rights, sewer rights and utility rights.

“Registered IP” shall have the meaning specified in Section 4.13(a).

“Relating to the Jewel Business” shall mean used primarily or exclusively in the operation or 

conduct of the Jewel Business as conducted as of the date hereof.

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“Representative” shall mean, with respect to any Person, such Person’s officers, directors, 

managers, employees, agents, representatives and financing sources (including any investment banker, 

financial advisor, accountant, legal counsel, consultant, other advisor, agent, representative or expert 

retained by or acting on behalf of such Person or its Subsidiaries).

“Restricted Party” shall mean (a) any Person or government that is the subject of Sanctions, (b) any 

Person resident in or organized under the laws of any country or territory that is the subject of country- or 

territory-wide Sanctions (including Cuba, Iran, North Korea, Syria, or the Crimea region) or (c) owned or 

controlled by a Person or Persons described in clause (a) or (b).

“Retained Business” shall mean, collectively, any and all businesses and operations conducted by 

any Seller and/or any of its Affiliates other than the Jewel Business provided that “Retained Business” does 

not include the Transferred Intellectual Property.

“Sale Hearing” shall mean the hearing conducted by the Bankruptcy Court to approve the 

Transactions pursuant to the Sale Order.

“Sale Motion” shall mean the motion filed by Seller in the Bankruptcy Court dated January 17, 

2019, and an appearing as item number 26 on the docket of the Bankruptcy Court in the Chapter 11 Cases.

“Sale Order” shall mean the Order of the Bankruptcy Court in the form attached hereto as Exhibit 

A, as may be modified with Buyer’s consent (such consent not to be unreasonably withheld).

“Sanctions” shall mean economic or financial sanctions or trade embargoes imposed, administered, 

or enforced from time to time by (a) the U.S. government (including the U.S. Department of State and the 

Office of Foreign Assets Control of the U.S. Department of the Treasury), (b) the United Nations Security 

Council, (c) the European Union, (d) Her Majesty’s Treasury of the United Kingdom, or (e) other relevant 

sanctions authority with jurisdiction over any Party.

“Seller” or “Sellers” shall have the meaning specified in the preamble.

“Seller Fundamental Representations” shall have the meaning specified in Section 7.1(a).

“Sellers Material Adverse Effect” shall mean any change, effect, event, occurrence, circumstance, 

state of facts or development that, individually or in the aggregate (taking into account all other such 

changes, effects, events, occurrences, circumstances, states of facts or developments), (a) has had, or would 

reasonably be expected to have, a material adverse effect on the ability of Sellers to consummate the 

Transactions or (b) has had, or would reasonably be expected to have, a material adverse effect on the Jewel 

Business, including the Acquired Assets and the Assumed Liabilities, taken as a whole; provided, however, 

that with respect to clause (b) only, the term “material adverse effect” shall not include any change, effect, 

event, occurrence, circumstance, state of facts or development that, directly or indirectly, alone or taken 

together, arising out of or attributable to: (i) any change generally affecting the international, national or 

regional markets applicable to the Jewel Business; (ii) any changes in, or effects arising from or relating to, 

national or international political or social conditions, including the engagement by the United States or 

any other country in hostilities or the escalation thereof, whether or not pursuant to the declaration of a 

national emergency or war, or the occurrence or the escalation of any military, cyber or terrorist attack upon 

the United States or any other country, or any of its territories, possessions, or diplomatic or consular offices 

or upon any military installation, asset, equipment or personnel of the United States; (iii) changes in, or 

effects arising from or relating to, financial, banking, or securities markets (including (A) any disruption of 

any of the foregoing markets, (B) any change in currency exchange rates, (C) any decline or rise in the price 

of any security, commodity, contract or index and (D) any increased cost, or decreased availability, of 

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capital or pricing or terms related to any financing for the transactions contemplated by this Agreement); 

(iv) changes in Law, GAAP or official interpretations of the foregoing; (v) acts of nature, including 

outbreaks of illness or health emergencies, hurricanes, storms, floods, earthquakes and other natural 

disasters or force majeure events; (vi) the effect of any action contemplated by, or failure to take any action 

prohibited by, this Agreement; (vii) the pendency of the Chapter 11 Cases or the financial condition of 

Sellers; (viii) any failure, in and of itself, to achieve any budgets, projections, forecasts, estimates, plans, 

predictions, performance metrics or operating statistics or the inputs into such items (but, for the avoidance 

of doubt, not the underlying causes of any such failure to the extent such underlying cause is not otherwise 

excluded from the definition of Sellers Material Adverse Effect); (ix) changes or effects that arise from any 

seasonal fluctuations in the Jewel Business; (x) any matters arising out of the Chapter 11 Cases, including 

changes arising from, or effects of, any motion, application, pleading or Order filed under or in connection 

with, the Chapter 11 Cases and any objections in the Bankruptcy Court to (A) this Agreement and the other 

Transaction Documents and the transactions contemplated hereby and thereby, (B) the reorganization of 

Sellers and any related plan of reorganization or disclosure statement, or (C) the Bidding Procedures or the 

Sale Motion; (xi) the departure of officers or directors of any Seller after the Agreement Date; (xii) the 

execution and delivery of this Agreement or the announcement thereof or consummation of the 

Transactions or the identity, nature or ownership of Buyer, including the impact thereof on the relationships,

contractual or otherwise, of the Jewel Business with employees, customers, lessors, suppliers, vendors or 

other commercial partners; and (xiii) any action taken by any Seller at the request of, or with the consent 

of, Buyer; which, in the case of any of the foregoing clauses (i) through (v) does not disproportionately 

affect the Jewel Business relative to other companies that participate in the markets and industries 

applicable to the Jewel Business.

“Sellers Released Parties” shall have the meaning specified in Section 9.4.

“Sellers’ Representative” shall have the meaning specified in Section 9.18.

“Shared Contract” shall mean any Contract (other than any Assumed Contract) to which any Seller 

or any other Subsidiary of a Seller is a party and that inures to the benefit or burden of, or otherwise relates 

to, both (i) the Jewel Business and (ii) any other business of any Seller or any of their Subsidiaries 

(including any Retained Business).

“Subsidiary” shall mean, with respect to any Person (a) a corporation, a majority of whose capital 

stock with voting power, under ordinary circumstances, to elect directors is at the time, directly or indirectly, 

owned by such Person, by a subsidiary of such Person, or by such Person and one or more subsidiaries of 

such Person, (b) a partnership in which such Person or a subsidiary of such Person is, at the date of 

determination, a general partner of such partnership, or (c) any other Person (other than a corporation) in 

which such Person, a subsidiary of such Person or such Person and one or more subsidiaries of such Person, 

directly or indirectly, at the date of determination thereof, has (i) at least a majority ownership interest 

thereof or (ii) the power to elect or direct the election of a majority of the directors or other governing body 

of such Person.

“Successful Bidder” shall mean, if an Auction is conducted, the prevailing party with respect to the 

Acquired Assets at the conclusion of such Auction.

“Tax” or “Taxes” shall mean any and all taxes, assessments, levies, duties or other governmental 

charge imposed by any Governmental Entity, including any income, alternative or add-on minimum, 

accumulated earnings, franchise, capital stock, environmental, profits, windfall profits, gross receipts, sales, 

use, value added, transfer, registration, stamp, premium, excise, customs duties, severance, Real Property, 

personal property, ad valorem, occupancy, license, occupation, employment, payroll, social security, 

disability, unemployment, withholding, corporation, inheritance, value added, stamp duty reserve, 

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estimated or other tax, assessment, levy, duty (including duties of customs and excise) or other 

governmental charge of any kind whatsoever, including any payments in lieu of taxes or other similar 

payments, chargeable by any Tax Authority together with all penalties, interest and additions thereto, 

whether disputed or not.

“Tax Authority” shall mean any taxing or other authority (whether within or outside the U.S.) 

competent to impose Tax.

“Tax Return” shall mean any and all returns, declarations, reports, documents, Claims for refund, 

or information returns, statements or filings which are supplied or required to be supplied to any Tax 

Authority or any other Person, including any schedule or attachment thereto, and including any amendments 

thereof.

“Transaction Documents” shall mean this Agreement and any agreement, instrument or other 

document entered into pursuant to the terms hereof, including the Transition Services Agreement and the 

Assignment and Assumption Agreement.

“Transactions” shall mean the transactions contemplated by this Agreement to be consummated at 

the Closing, including the purchase and sale of the Acquired Assets and the assumption of the Assumed 

Liabilities as provided for in this Agreement.

“Transfer Tax” or “Transfer Taxes” shall mean any sales, use, transfer, conveyance, documentary 

transfer, stamp, recording or other similar Tax imposed upon the sale, transfer or assignment of property or 

any interest therein or the recording thereof, and any penalty, addition to Tax or interest with respect thereto, 

but such term shall not include any Tax on, based upon or measured by, the net income, gains or profits 

from such sale, transfer or assignment of the property or any interest therein.

“Transferable Permits” shall have the meaning specified in Section 2.1(j).

“Transferred Employee” shall have the meaning specified in Section 6.7(b).

“Transferred Intellectual Property” shall have the meaning specified in Section 2.1(a).

“Transferred Trademarks” shall have the meaning specified in Section 2.1(a)(iii).

“Transition Services Agreement” shall mean that certain Transition Services Agreement in the form 

attached hereto as Exhibit B.

“U.S. Person” shall mean any Person that is a “United States person” as defined in 

Section 7701(a)(30) of the Code.

“WARN Act” shall mean the Worker Adjustment and Retraining Notification Act of 1988 and any 

similar Law, including any other Law of any jurisdiction relating to plant closings or mass layoffs.

1.2 Interpretation.

(a) Whenever the words “include,” “includes” or “including” are used in this 

Agreement they shall be deemed to be followed by the words “without limitation.”

(b) Words denoting any gender shall include all genders. Where a word or phrase is 

defined herein, each of its other grammatical forms shall have a corresponding meaning.

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(c) A reference to any Party to this Agreement or any other agreement or document 

shall include such Party’s successors and permitted assigns.

(d) A reference to any legislation or to any provision of any legislation shall include 

any modification or re-enactment thereof, any legislative provision substituted therefor and all regulations 

and statutory instruments issued thereunder or pursuant thereto.

(e) All references to “$” and dollars shall be deemed to refer to United States currency.

(f) All references to any financial or accounting terms shall be defined in accordance 

with GAAP.

(g) The words “hereof,” “herein” and “hereunder” and words of similar import when 

used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this 

Agreement, and Section, Disclosure Schedule and exhibit references are to this Agreement unless otherwise 

specified. All article, section, paragraph, schedule and exhibit references used in this Agreement are to 

articles, sections and paragraphs of, and schedules and exhibits to, this Agreement unless otherwise 

specified.

(h) The meanings given to terms defined herein shall be equally applicable to both 

singular and plural forms of such terms.

(i) When calculating the period of time before which, within which or following 

which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in 

calculating such period shall be excluded. If the last day of such period is not a Business Day, the period in 

question shall end on the next succeeding Business Day. All references herein to time are references to New 

York City time, unless otherwise specified herein.

(j) If a word or phrase is defined, its other grammatical forms have a corresponding 

meaning.

(k) A reference to any agreement or document (including a reference to this 

Agreement) is to the agreement or document as amended or supplemented, except to the extent prohibited 

by this Agreement or that other agreement or document.

(l) Exhibits, Schedules and Annexes to this Agreement are hereby incorporated and 

made a part hereof and are an integral part of this Agreement. Any capitalized terms used in any Schedule 

or Exhibit but not otherwise defined therein shall be defined as set forth in this Agreement.

ARTICLE 2

TRANSFER OF ASSETS AND ASSUMPTION OF LIABILITIES

2.1 Assets to be Acquired. Subject to the entry of the Sale Order, and the terms and conditions 

of this Agreement and the Sale Order, at the Closing, Sellers shall sell, convey, assign, transfer and deliver 

to Buyer (or one or more Persons (including any Affiliates of Buyer), as designated by Buyer in writing to 

Gemstone prior to the Sale Hearing (each, a “Designated Purchaser”), which such writing shall indicate 

which Acquired Asset shall be purchased, acquired and accepted by each such Person), and Buyer or 

Designated Purchasers, as applicable, shall purchase, acquire and accept, all of the right, title and interest, 

free and clear of all Liens (other than Liens included in the Assumed Liabilities and Permitted Liens or as 

otherwise set forth in the Sale Order), of Sellers in each and all of the Acquired Assets. “Acquired Assets” 

shall mean all properties, assets, interests and rights of every nature, tangible and intangible, of Sellers, real 

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or personal, now existing or hereafter acquired, whether or not reflected on the books or financial statements 

of Sellers as the same shall exist on the Closing Date Relating to the Jewel Business (other than the 

Excluded Assets), and in any event, including the following assets:

(a) all Intellectual Property Relating to the Jewel Business owned by Sellers, or in 

which Sellers have any interest or right, including (all such Intellectual Property in this Section 2.1(a), 

collectively, the “Transferred Intellectual Property”):

(i) the copyright registrations set forth in Schedule 2.1(a)(i);

(ii) the internet domain name registrations and social media accounts set forth 

in Schedule 2.1(a)(ii) as well as all content, graphics, and artistic works displayed on the 

websites and social media sites and all copyrights therein;

(iii) the Trademark applications and registrations set forth in 

Schedule 2.1(a)(iii) (the “Transferred Trademarks”), including the historical trademark 

files and any common law rights available anywhere in the world that are the subject of 

such registrations, together with all goodwill associated therewith, including the right to 

sue and collect for past infringement, and all common law rights to the trademarks that are 

the subject of such Transferred Trademarks;

(iv) any and all of Sellers’ right, title and interest to the name “Janie and Jack”, 

or any derivation thereof;

(v) any and all agreements where Seller has acquired a license from a third 

party for use of the third party trademarks in the Jewel Business and that are set forth in 

Schedule 2.1(a)(v); and

(vi) any software and mobile applications (and copyrights therein) and

licenses, maintenance service agreements, current statements of work and any amendments 

thereto, customizations, custom codes and extensions related thereto (whether done by any 

Seller or a third party on behalf of any Seller) and all master service agreements related to 

information technology services, in each case, used in the operation of the Jewel Business, 

including as set forth in Schedule 2.1(a)(vi); 

(b) subject to Section 8.11 of the Liquidation Agreement, the E-Commerce Platform, 

including all information technology hardware, software and data collection systems used in connection 

therewith that are owned, leased or licensed by Sellers or any of their Subsidiaries and all copyright rights 

therein;

(c) all goodwill associated with the Jewel Business, the Acquired Assets and the 

Assumed Liabilities (excluding, for the avoidance of doubt, any and all goodwill to the extent associated 

with the Excluded Assets);

(d) except as set forth in Section 2.2(c) and Section 2.2(e), and subject to the right of 

Sellers to retain copies (at their expense and subject to Section 6.17 and only to the extent and for the 

purposes expressly set forth in Section 2.2(c) and Section 2.2(e)), all Acquired Business Information in the 

possession or reasonable control of any Seller and whether in hard or electronic format;

(e) (i) those leases and other Contracts (together with all of Sellers’ deposits 

thereunder, and all of Sellers’ rights and interests in on-order and undelivered goods associated therewith) 

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entered into by any Seller and Relating to the Jewel Business listed on Schedule 2.1(e)(i) (collectively with 

all other Contracts contemplated by this Section 2.1, the “Assumed Contracts”), and (ii) all right, title and 

leasehold interest of Sellers in the real property set forth on Schedule 2.1(e)(ii), together with all right, title 

and leasehold interest of Sellers in the buildings, structures, fixtures and improvements erected thereon, 

including the Facilities, and all rights, privileges, easements, licenses and other appurtenances relating 

thereto (collectively, the “Leased Real Property”);

(f) all (i) Sellers’ owned equipment, machinery, furniture, spare parts, fixtures and 

improvements Relating to the Jewel Business (the “Owned Equipment”), (ii) rights of Sellers to the 

equipment, machinery, furniture, spare parts, fixtures and improvements which are leased pursuant to an 

Assumed Contract (collectively with the Owned Equipment, the “Equipment”), and (iii) rights of Sellers to 

the warranties, express or implied, and licenses received from manufacturers and sellers of the Equipment;

(g) except with respect to any Avoidance Action or Unperfected Commercial Tort 

Claims (as defined in the Order of the Bankruptcy Court approving the DIP Facility), all Claims of any 

Seller (including for royalties, fees or other income, past, present or future infringement, misappropriation 

or violation of, any of the Transferred Intellectual Property) to the extent arising from or relating to or in 

connection with the Acquired Assets or the Assumed Liabilities (regardless of whether or not asserted by 

any Seller), all of the proceeds from the foregoing which are accrued and unpaid as of the Closing, all rights 

of indemnity, warranty rights, guaranties received from vendors, suppliers or manufacturers, rights of 

contribution, rights to refunds, rights of reimbursement and other rights of recovery possessed by any Seller 

against other Persons and the prosecution files of Sellers related thereto, in each case, to the extent related 

to the Acquired Assets or the Assumed Liabilities (regardless of whether such rights are currently 

exercisable);

(h) all data and information relating to, or derived from, identified or identifiable 

customers, including purchase files and branded loyalty promotion programs and other similar information 

related to customer purchases and other engagement with the Jewel Business, including personal 

information (such as name, address, telephone number, e-mail address, device and advertising identifiers, 

customer or email keys or other persistent identifiers, browsing information, preferences, badges, segments 

and any other database information) and customer purchase history at a transaction level (including dollar 

amounts, dates, and items purchased, but excluding from the foregoing any non-tokenized credit card 

numbers or related customer payment source, social security numbers, or other information to the extent 

prohibited by Law) relating to customers of, or collected through or used in the operation of (i) the Jewel 

Business, (ii) the E-Commerce Platform or any similar e-commerce platform owned, operated or controlled 

by Sellers, (iii) any catalog sales, other online or print mailing or similar distribution channels, (iv) partner 

e-commerce platforms or retail stores or (v) any customer lists, in each case, in the possession or reasonable 

control of the Sellers; provided that, with respect to clauses (ii), (iii), (iv) and (v) of this Section 2.1(h), 

solely to the extent Relating to the Jewel Business;

(i) all rights to insurance proceeds Relating to the Jewel Business;

(j) all Permits Relating to the Jewel Business, but only if and to the extent that such 

Permits are transferable by Sellers to Buyer or Designated Purchaser, as the case may be, by assignment or 

otherwise (including upon request or application to a Governmental Entity or any third party, or which will 

pass to Buyer or Designated Purchaser, as the case may be, as successor in title to the Acquired Assets by 

operation of Law) (the “Transferable Permits”);

(k) all current assets Relating to the Jewel Business as of immediately prior to the 

Closing, excluding accounts receivable;

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(l) all deposits and prepaid expenses of Sellers relating to any of the Assumed 

Contracts, including (i) security deposits with third party suppliers, vendors, service providers or landlord 

and lease and rental payments, (ii) tenant reimbursements, (iii) prepaid Property Taxes and (iv) prepayments, but excluding any deposits or other amounts paid by or on behalf of Sellers to vendors with 

respect to purchase orders for Inventory; 

(m) all Real Property Relating to the Jewel Business (other than the Leased Real 

Property, which is the subject of Section 2.1(e)(ii)) and any buildings, improvements and fixtures thereon 

and furniture thereat; 

(n) all Jewel Inventory in Sellers’ possession; and

(o) those personnel records (including without limitation those pertaining to training, 

performance, salary, compensation, benefits, visa status, and I-9 information) relating to the Transferred 

Employees that can be transferred to Buyer, Designated Purchaser or one of their respective Affiliates under 

applicable Law.

2.2 Excluded Assets. Notwithstanding anything to the contrary in this Agreement, the 

Acquired Assets do not include, and in no event shall Sellers be deemed to sell, transfer, assign, convey or 

deliver and Sellers shall retain, all right, title and interest to, Sellers’ right, title or interest in or to any of 

the following properties, interests, rights and assets of Sellers (collectively, the “Excluded Assets”):

(a) each Seller’s rights under this Agreement or any of the Transaction Documents 

(including the right to receive the Purchase Price);

(b) all of Sellers’ or any of their respective Affiliates’ certificates of incorporation and 

other organizational documents, qualifications to conduct business as a foreign entity, arrangements with 

registered agents relating to foreign qualifications, taxpayer and other identification numbers, seals, minute 

books, stock transfer books, stock certificates and other documents relating to the organization, 

maintenance and existence of any Seller or any of its Affiliates as a corporation, limited liability company 

or other entity;

(c) all books and records related to Taxes paid or payable by any Seller or any of its 

Affiliates; provided that Buyer shall be entitled to copies of Tax Returns in respect of Property Taxes 

relating to the Acquired Assets or copies of any portions of such documents relating to the Acquired Assets;

(d) all shares of capital stock or other equity interests of any Seller or any of its 

Affiliates or securities convertible into or exchangeable or exercisable for shares of capital stock or other 

equity interests of any Seller or any of its Affiliates, including the entities listed on Schedule 2.2(d);

(e) any (i) personnel records pertaining to any employees of Sellers or any of their 

respective Affiliates other than Transferred Employees, and any personnel records for Transferred 

Employees that cannot be transferred to Buyer or one of its Affiliates under applicable Law, (ii) copies of 

any book, record, literature, list and any other written or recorded information constituting Acquired 

Business Information that has been provided to Buyer and to which Sellers and their respective Affiliates 

in good faith determine they are reasonably likely to need access for bona fide business, tax or legal 

purposes (including, for the avoidance of doubt, the provision of services under the Transition Services 

Agreement), (iii) Excluded Information or (iv) other books and records, in either case, that Sellers and their 

respective Affiliates are required by Law to retain, including Tax Returns, taxpayer and other identification 

numbers, financial statements and corporate or other entity filings; provided that, to the extent permitted by 

applicable Law, Buyer shall have the right to obtain copies of any portions of such retained books and 

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records to the extent that such portions relate to the Jewel Business or any Acquired Asset or are otherwise 

necessary for Buyer to comply with applicable Law;

(f) (i) all assets, properties, interests and other rights of every nature in respect of the 

Benefit Plans and any other compensation or benefit plans, programs, arrangements, or agreements of 

Sellers or any of their Subsidiaries, in each case including all associated funding media, assets, reserves, 

credits and service agreements, and all documents created, filed or maintained in connection therewith, 

together with any applicable insurance policies related thereto, (ii) all employment, personnel and 

compensation records relating to any current or former employee of any Seller or any Subsidiary of any 

Seller who is not, and does not become, a Transferred Employee, and (iii) those portions of employment, 

personnel and compensation records relating to the Transferred Employees that cannot be transferred to 

Buyer or one of its Affiliates under applicable Law;

(g) all Permits and pending applications therefor to the extent not Relating to the Jewel 

Business;

(h) all Claims that Sellers or any of their respective Affiliates may have against any 

third Person with respect to any Excluded Assets or Excluded Liabilities;

(i) all cash and cash equivalents, securities, security entitlements, instruments and 

other investments of Sellers and all bank accounts and security accounts, including any cash collateral that 

is collateralizing any letters of credit;

(j) all Excluded Contracts and all prepaid expenses related thereto;

(k) except as set forth in Section 2.1(i), all insurance policies and rights to proceeds 

thereof (and Buyer acknowledges that, as of the Closing, the Acquired Assets and the Jewel Business shall 

cease to be insured by any insurance policies of any Seller or any of their Subsidiaries);

(l) all Inventory that is not Jewel Inventory;

(m) any documents and agreements relating to the Chapter 11 Cases or to the sale or 

other disposition of the Jewel Business, the Acquired Assets or any other asset of any Seller or any of its 

Affiliates other than those to be delivered to Buyer in accordance with this Agreement;

(n) all prepayments, good faith and other bid deposits submitted by any third party 

under the terms of the Bidding Procedures Order;

(o) all Avoidance Actions and all other avoidance actions, including fraud, selfdealing, fraudulent transfer, or similar claims against any officer or director of any Seller or any of its 

Affiliates and all Unperfected Commercial Tort Claims (as defined in the Order of the Bankruptcy Court 

approving the DIP Facility); and

(p) all assets, properties, interests and rights of any Seller used primarily or exclusively 

in the operation or conduct of the Retained Business as conducted as of the date hereof, except for any such 

assets, properties, interests and rights described or identified in Section 2.1 or on Schedule 2.1.

2.3 Liabilities to be Assumed by Buyer. Subject to the terms and conditions of this Agreement, 

at the Closing, Sellers shall assign to Buyer or Designated Purchasers, as applicable, and Buyer or 

Designated Purchasers, as applicable, shall assume from Sellers and pay when due, perform and discharge, 

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in due course, without duplication, each of the Assumed Liabilities. “Assumed Liabilities” shall mean solely 

the following Liabilities:

(a) all Liabilities of Sellers under each of the Assumed Contracts that become due 

from and after the Closing Date;

(b) all Cure Costs;

(c) all Liabilities (i) related to the Transferred Employees arising on or after the date 

such applicable Employee becomes a Transferred Employee, including under the WARN Act; (ii) in respect 

of accrued and unpaid vacation or personal time off related to the Transferred Employees, and (iii) in respect 

of accrued base salary, store bonuses or other wages related to the Transferred Employees;

(d) all Transfer Taxes;

(e) all Liabilities related to Property Taxes imposed upon or assessed directly against 

the Acquired Assets attributable to the period commencing on the Closing Date; and

(f) all Liabilities incurred from or after and arising from or after the Closing with 

respect to or relating to the ownership or operation of any of the Acquired Assets or Relating to the Jewel 

Business.

Notwithstanding the foregoing and for the avoidance of doubt, Assumed Liabilities shall not include any 

Liability relating to or arising out of any violation of Law by, or any Claim against, any Seller or any breach, 

default or violation by any Seller of or under any Assumed Contracts, other than the Cure Costs.

2.4 Excluded Liabilities. Notwithstanding anything in this Agreement to the contrary, Buyer 

shall not and does not assume, and shall be deemed not to have assumed and shall not be obligated to pay, 

perform, discharge or in any other manner be liable or responsible for any Liabilities of Sellers, whether 

existing on the Closing Date or arising thereafter, other than the Assumed Liabilities, including those 

relating to or arising out of any of the following (collectively, the “Excluded Liabilities”):

(a) all costs and expenses incurred or to be incurred by Sellers in connection with this 

Agreement and the consummation of the Transactions, except as otherwise provided in the Transition 

Services Agreement;

(b) all Liabilities (i) related to any current or former employee of any Seller or of any 

Subsidiary of any Seller (other than all Liabilities related to the Transferred Employees arising on or after 

the date such applicable Employee becomes a Transferred Employee, including under the WARN Act) and 

(ii) under any Benefit Plan (including all assets, trusts, insurance policies and administration service 

contracts related thereto);

(c) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers 

for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision 

of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for 

which Buyer or Designated Purchaser is liable pursuant to Section 2.3(d), Section 2.3(e) and/or 

Section 2.3(f);

(d) all Liabilities under the corporate headquarters lease for the Retained Business;

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(e) all Liabilities arising out of, relating to or with respect to any and all Employees, 

and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;

(f) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s 

fee, finders’ fee or similar fee or commission relating to the transactions contemplated by this Agreement 

for which any Seller or its Affiliates are responsible;

(g) all Liabilities, or corrective or remedial obligations with respect to Facilities or 

operation of the Jewel Business (including any related offsite disposal locations) which arises under or 

relates to any Environmental Laws (including without limitation any relating to exposure to Hazardous 

Materials) except to the extent the facts or conditions underlying such Liability or obligation are caused 

after Closing; and

(h) all Liabilities arising out of, concerning, in connection with, or relating to the Real 

Property (other than the Leased Real Property), the Retained Business or the Proceedings listed on Schedule 

4.6;

provided that in the event of any conflict between Section 2.3 and this Section 2.4, Section 2.4 will control.

2.5 [Reserved]

2.6 Non-Assignment of Assumed Contracts.

(a) Notwithstanding anything in this Agreement to the contrary, this Agreement shall 

not constitute an agreement to assign any Assumed Contract which, after giving effect to the provisions of 

Section 365 of the Bankruptcy Code, is not assignable or transferable without the consent of any Person, 

other than the Sellers, any of their respective Affiliates or Buyer, to the extent that such consent shall not 

have been given prior to the Closing; provided, however, that (i) the Sellers shall use, whether before or 

after the Closing, its commercially reasonable efforts to obtain all necessary consents (each, a “Necessary 

Consent”) to the assignment and transfer thereof, it being understood that, to the extent the foregoing shall 

require any action by the Sellers that would, or would continue to, have an adverse effect on the business 

of Buyer or any of its Affiliates after the Closing, such action shall require the prior written consent of 

Buyer, and (ii) in the event that any Assumed Contract is deemed not to be assigned pursuant to clause (i) 

of this Section 2.6(a), the Sellers shall (A) use commercially reasonable efforts to obtain such necessary 

consents as promptly as practicable after the Closing and (B) cooperate in good faith in any lawful and 

commercially reasonable arrangement reasonably proposed by Buyer, including subcontracting, licensing 

or sublicensing to Buyer any or all of any Seller’s rights and obligations with respect to any such Assumed 

Contract, under which Buyer shall obtain (without infringing upon the legal rights of such third party or 

violating any Law) the economic rights and benefits under such Assumed Contract with respect to which 

such Necessary Consent has not been obtained. Upon satisfying any requisite consent requirement 

applicable to such Assumed Contract after the Closing, such Assumed Contract shall promptly be 

transferred and assigned to Buyer in accordance with the terms of this Agreement. These commercially 

reasonable efforts shall not require any material payment or other material consideration from the Sellers 

or Buyer (other than the Cure Costs, which shall be the responsibility of Buyer), and any such consent shall 

contain terms and conditions reasonably acceptable to the Parties. For the avoidance of doubt, the term 

“material” in the prior sentence means material in the context of the relevant Assumed Contract.

(b) Subject to Section 2.6(a), if after the Closing (i) Buyer or any of its Affiliates holds 

any Excluded Assets or Excluded Liabilities or (ii) any Seller or any of their Affiliates holds any Acquired 

Assets or Assumed Liabilities, Buyer or the applicable Seller, will promptly transfer (or cause to be 

transferred) such assets or assume (or cause to be assumed) such Liabilities to or from (as the case may be) 

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the other party. Prior to any such transfer, the party receiving or possessing any such asset will hold it in 

trust for such other party.

2.7 Assumption and Assignment of Executory Contracts. Sellers shall provide timely and 

proper written notice of the motion seeking entry of the Sale Order to all parties to any executory Contracts 

to which any Seller is a party that are Assumed Contracts and take all other actions necessary to cause such 

Contracts to be assumed by Sellers and assigned to Buyer pursuant to Section 365 of the Bankruptcy Code, 

as applicable, to the extent that such Contracts are Assumed Contracts. At the Closing, Sellers shall, 

pursuant to the Sale Order and the Assignment and Assumption Agreement, assume and assign to Buyer 

(the consideration for which is included in the Purchase Price), all Assumed Contracts that may be assigned 

by any such Seller to Buyer pursuant to Sections 363 and 365 of the Bankruptcy Code, as applicable, subject 

to provision by Buyer of adequate assurance as may be required under Section 365 of the Bankruptcy Code 

and payment by Buyer of the Cure Costs in respect of Assumed Contracts pursuant to and in accordance 

with Section 365 of the Bankruptcy Code, as applicable, and the Sale Order. At the Closing, Buyer shall 

assume, and thereafter in due course and in accordance with its respective terms pay, fully satisfy, discharge 

and perform all of the obligations under each Assumed Contract (other than in respect of the Cure Costs, 

the payment of which shall be the responsibility of Buyer) pursuant to Section 365 of the Bankruptcy Code, 

as applicable.

ARTICLE 3

CLOSING; PURCHASE PRICE

3.1 Closing; Transfer of Possession; Certain Deliveries.

(a) The consummation of the Transactions (the “Closing”) shall take place on the 

second Business Day after the satisfaction of all of the conditions set forth in Article 7 (or the waiver thereof 

by the Party entitled to waive that condition) or on such other date as the Parties hereto shall mutually agree. 

The Closing shall be held at the offices of Milbank LLP, 55 Hudson Yards, New York NY 10001, at 10:00 

a.m., local time, unless the Parties hereto otherwise agree. The actual date of the Closing is herein called 

the “Closing Date”.

(b) At the Closing, Sellers shall deliver to Buyer: 

(i) an officer’s certificate, dated as of the Closing Date, executed by a duly 

authorized officer of Gemstone certifying that the conditions set forth in Section 7.1(a) and Section 7.1(b)

have been satisfied;

(ii) an electronic copy of the information required under Section 2.1(b), 

Section 2.1(d) and Section 2.1(h), except with respect to e-mails, which Buyer may retrieve from Sellers at 

its sole cost and expense upon reasonable prior request and in a commercially reasonable manner (it being 

understood that Sellers shall cooperate and work with Buyer in good faith in connection with any such 

request);

(iii) a duly executed bill of sale, in a form mutually agreed to by the Parties, 

transferring the Acquired Assets to Buyer;

(iv) the duly executed Transition Services Agreement;

(v) the duly executed Assignment and Assumption Agreement;

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(vi) for each Seller (or if any Seller is a disregarded entity for U.S. federal 

income tax purposes, its regarded owner) that is a U.S. Person, a duly executed FIRPTA Affidavit from 

each such Seller (or, if such Seller is a disregarded entity for U.S. federal income tax purposes, its regarded 

owner); and

(vii) duly executed lease assignments in a form reasonably satisfactory to 

Sellers and Buyer, or Sale Order(s) of the Bankruptcy Court, as shall be required to convey to Buyer all of 

Sellers’ interests in respect of the Leased Real Property, which lease assignments shall be in recordable 

form, duly executed and acknowledged.

(c) At the Closing, Buyer shall deliver to Sellers:

(i) the Closing Consideration (as defined below) by wire transfer of 

immediately available funds to an account designated in writing by Sellers;

(ii) an officer’s certificate, dated as of the Closing Date, executed by a duly 

authorized officer of Buyer certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have 

been satisfied;

(iii) the duly executed Transition Services Agreement; and

(iv) the duly executed Assignment and Assumption Agreement.

3.2 Consideration. The aggregate consideration for the Acquired Assets shall be (i) 

$35,000,000 (the “Purchase Price”) and (ii) the assumption of the Assumed Liabilities. The consideration 

payable to the Sellers by Buyer at Closing shall equal the Purchase Price minus the Good Faith Deposit 

minus the Incremental Deposit Amount paid by Buyer before the Closing (if any) (the “Closing 

Consideration”).

3.3 Allocation of Purchase Price. (i) The sum of the Purchase Price and the amount of the 

Assumed Liabilities (to the extent properly taken into account under the Code) shall be allocated between 

Sellers and (ii) the amount allocated to the Acquired Assets sold by each such Seller shall be further 

allocated among such Acquired Assets in accordance with Section 1060 of the Code and the Treasury 

Regulations promulgated thereunder (the “Allocation”). The Allocation shall be delivered by Buyer to 

Sellers within ninety (90) days after the Closing. Sellers will have the right to raise reasonable objections 

to the Allocation within thirty (30) days after Buyer’s delivery thereof, in which event Buyer and Sellers 

will negotiate in good faith to resolve such dispute. If Buyer and Sellers cannot resolve such dispute within 

fifteen (15) days after Sellers notify Buyer of such objections, such dispute with respect to the Allocation 

shall be resolved promptly by the Neutral Accountant, the costs of which shall be shared in equal amounts 

by Buyer, on the one hand, and Sellers, on the other hand. The decision of the Neutral Accountant in respect 

of the Allocation shall be final and binding upon Buyer and Sellers. Buyer and Sellers shall file all Tax 

Returns (including, but not limited to, Internal Revenue Service Form 8594) consistent with the Allocation 

absent a change in Law; provided, however, that nothing contained herein shall prevent Buyer or any Seller 

from settling any proposed deficiency or adjustment by any Tax Authority based upon or arising out of the 

Allocation, and neither Buyer nor any Seller shall be required to litigate before any court any proposed 

deficiency or adjustment by any Tax Authority challenging such Allocation. Buyer and Sellers shall 

promptly notify and provide the other with reasonable assistance in the event of an examination, audit, or 

other proceeding relating to Taxes regarding the Allocation of the Purchase Price and the amount of the 

Assumed Liabilities pursuant to this Section 3.3. Notwithstanding any other provisions of this Agreement, 

the foregoing agreement shall survive the Closing Date without limitation.

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ARTICLE 4

REPRESENTATIONS AND WARRANTIES OF SELLERS

Except as set forth in the Disclosure Schedules, Sellers jointly and severally hereby represent and 

warrant to Buyer, as of the Agreement Date and the Closing Date as follows:

4.1 Organization.

(a) Each Seller is duly organized, validly existing and in good standing under the Laws 

of the jurisdiction of its organization and has all requisite corporate power and authority to own, lease, 

develop and operate the Acquired Assets and to carry on the Jewel Business as now being conducted.

(b) Each Seller (i) is duly qualified or licensed to do business as a foreign corporation 

or limited liability company, as applicable, and is in good standing under the Laws of each jurisdiction 

where the nature of the property owned or leased by it or the nature of the Jewel Business makes such 

qualification or license necessary, except where any such failure to be so qualified or licensed, individually 

in the aggregate, would not result in a Sellers Material Adverse Effect, and (ii) pursuant to Sections 1107 

and 1108 of the Bankruptcy Code and the Orders of the Bankruptcy Court, has all necessary corporate or 

limited liability company power and authority to own and operate its properties, to lease the property it 

operates under lease and to conduct the Jewel Business as debtor-in-possession.

4.2 Due Authorization, Execution and Delivery; Enforceability. Each Seller has all requisite 

corporate or limited liability company power and authority to execute and deliver this Agreement and the 

other Transaction Documents to which it is (or will become at Closing) a party and to perform its obligations 

hereunder and thereunder (subject, in the case of the obligation to consummate the Transactions, to the 

entry of the Sale Order). The execution, delivery and performance by each of Sellers of this Agreement and 

the other Transaction Documents to which it is (or will become at Closing) a party and the consummation 

of the Transactions have been duly and validly authorized by all requisite corporate or limited liability 

company action, as applicable, on the part of each such Seller and no other corporate or limited liability 

company action, as applicable, on the part of each such Seller is necessary to authorize this Agreement and 

such other Transaction Documents and to consummate the Transactions (subject, in the case of the 

obligation to consummate the Transactions, to the entry of the Sale Order). This Agreement and the other 

Transaction Documents to which each of Sellers is (or will become at Closing) party have been (or will be) 

duly and validly executed and delivered by each such Seller and (assuming the due authorization, execution 

and delivery by all parties hereto and thereto, other than such Seller) constitute (or will constitute) valid 

and binding obligations of each such Seller enforceable against each such Seller in accordance with their

terms (subject to the entry of the Bidding Procedures Order and, in the case of the obligation to consummate 

the Transactions, to the entry of the Sale Order).

4.3 Governmental Consents. No notice to, consent, approval or authorization of or designation, 

declaration or filing with any Governmental Entity is required by any Seller with respect to such Sellers’ 

execution, delivery and performance of any Transaction Document to which it is (or will become at Closing) 

a party or the consummation of the Transactions, except (a) as may be required under the HSR Act, (b) the 

Sale Order having been entered by the Bankruptcy Court, (c) notices, filings and consents required in 

connection with the Chapter 11 Cases and (d) any consent, approval or authorization of or designation, 

declaration or filing with any Governmental Entity the failure of which to be made or obtained would not, 

individually or in the aggregate, be, or reasonably be expected to be, material to the Acquired Assets taken 

as a whole.

4.4 No Conflicts. Subject to the receipt of the Necessary Consents set forth on Schedule 4.4

and the Sale Order having been entered by the Bankruptcy Court, the execution, delivery and performance 

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by such Seller of any Transaction Document to which such Seller is (or will become at Closing) a party, 

and the consummation of the Transactions, does not and will not (a) conflict with or result in any breach of 

any provision of its certificate of incorporation or bylaws or comparable governing documents, (b) without 

giving effect to Section 2.6, conflict with or result in the breach of the terms, conditions or provisions of or 

constitute a default (or an event which with notice or lapse of time or both would become a default) under, 

or give rise to any right of termination, acceleration or cancellation of any right or obligation or to a loss of 

any benefit under any provision of any Assumed Contract, (c) result in a violation of any Law or Order 

applicable to it or (d) result in the creation or imposition of any Lien on any Acquired Asset other than 

Permitted Liens, except, in the case of clauses (b), (c) and/or (d), as would not, individually or in the 

aggregate, be, or reasonably be expected to be, material to the Acquired Assets, taken as a whole.

4.5 Title to Acquired Assets.

(a) Except for Permitted Liens, Sellers have good and valid title to the material 

Acquired Assets (other than the Leased Real Property, which is addressed in Section 4.5(b)). No 

Subsidiaries or Affiliates of Gemstone, other than Sellers, hold any material assets, other than Excluded 

Assets, Relating to the Jewel Business.

(b) Each lease, ground lease, sublease, license, option or other agreement related to 

the Leased Real Property to which any Seller is a party is a legal, valid, binding and enforceable obligation 

of the applicable Seller and each such lease, ground lease, sublease, license, option or other agreement is in 

full force and effect, except as would not, individually or in the aggregate, be, or, reasonably expected to 

be, material to the Acquired Assets, taken a as a whole. 

(c) Sellers are not in default under any such leases, ground leases, subleases, licenses, 

options or other agreements, and no condition exists which (with notice or lapse of time or both) would 

constitute a default by any Seller thereunder or, to the Knowledge of Sellers, by the other parties thereto, 

except as would not, individually or in the aggregate, be, or, reasonably be expected to be, material to the 

Acquired Assets, taken a as a whole.

(d) Except (i) as set forth in the Liquidation Agreement and (ii) as otherwise provided 

in this Section 4.5, the Leased Real Property is (A) subject to no Liens, other than Permitted Liens and (B)

not subject to any statutory liens of landlords, carriers, warehousemen, mechanics, and materialmen, except 

as set forth in the applicable lease, ground lease, sublease, license, option or other agreement related to the 

Leased Real Property.

(e) Sellers have delivered to or made available to Buyer via the “Project Jewel” virtual 

data room maintained by Intralinks Inc. 

(https://services.intralinks.com/web/index.html?#workspace/6333625/) true, accurate and complete copies 

of (i) each lease, ground lease or sublease, and each material license option or other agreement related to 

the Leased Real Property, (ii) all material easements, covenants, conditions, restrictions and other similar 

encumbrances on the Leased Real Property, and (iii) each material non-exclusive license related to the 

Leased Real Property.

4.6 Litigation; Orders. Except for the Chapter 11 Cases and any adversary proceedings or 

contested motions commenced in connection therewith, or as set forth on Schedule 4.6, (a) there is no 

Claim, Proceeding or Order pending, outstanding or, to any Seller’s Knowledge, threatened against any 

Seller or any of their respective Affiliates (i) that would reasonably be expected to be material to the Jewel 

Business, the Employees, contractors of Sellers or the Acquired Assets or (ii) that seeks to restrain or 

prohibit or otherwise challenge the consummation, legality or validity of the transactions contemplated 

hereby and (b) as of the Agreement Date, there is no Proceeding by any Seller or any of their respective 

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Affiliates pending, or which a Seller or any such Affiliate has commenced preparations to initiate, against 

any other Person relating to or affecting the Jewel Business or the Acquired Assets.

4.7 Employment and ERISA Matters. 

(a) All Employees of Sellers and their Subsidiaries are “at will” employees. Sellers 

and their Subsidiaries have not employed or engaged any employee or independent contractor who cannot 

be dismissed whether currently or immediately after the transactions contemplated by this Agreement, 

without cause, without payment of severance or other compensation, and without further liability other than 

Claims addressed in Section 4.7(d).

(b) No Employee is or within the past three (3) years has been covered by a collective 

bargaining or similar labor agreement with any union or employee organization representing or purporting 

to represent employees of Seller or any Subsidiary of any Seller.

(c) Except as set forth on Schedule 4.7(c), in the three (3) years prior to the Closing 

(i) with respect to the Jewel Business, no Seller or any Subsidiary of any Seller has experienced any labor 

strike, work stoppage, slowdown, lockout, concerted refusal to work overtime or other similar labor 

disruption against any Seller or any Subsidiary of any Seller and, to the Knowledge of Sellers, none of the 

foregoing is currently pending or threatened; (ii) no Seller or any Subsidiary of any Seller has received 

written notice from any Governmental Entity of any charge, complaint or Proceeding pending or threatened 

before or by the National Labor Relations Board, the Equal Employment Opportunity Commission, or any 

other Governmental Entity in connection with the Jewel Business; (iii) to the Knowledge of Sellers, no 

union organizational campaign is pending or threatened with respect to any Employee; and (iv) to the 

Knowledge of Sellers, there have not been any activities or proceedings by any labor union to represent any 

Employee except, in the case of each of clauses (i)-(iv) that have not had and would not reasonably be 

expected to have, individually or in the aggregate, a Sellers Material Adverse Effect.

(d) Except as set forth on Schedule 4.7(d), with respect to the Jewel Business, each 

Seller and each Subsidiary of each Seller is, and has been at all times since January 17, 2016, in compliance 

in all material respects with all applicable Laws pertaining to labor and employment, including Laws 

pertaining to terms and conditions of employment, collective bargaining, wages, hours of work, 

discrimination, retaliation, employee privacy, and occupational safety and health. Sellers and their 

Subsidiaries have paid and/or properly accrued all wages and other compensation due to all current and 

former employees and independent contractors including without limitation all overtime pay, 

vacations/PTO or vacation/PTO pay, holidays or holiday pay, sick days or sick pay, commissions, bonuses, 

and incentive compensation. All current and former employees of Sellers and their Subsidiaries who have 

been classified as exempt under the FLSA or any state wage and hour Laws have been properly classified 

and treated as such and properly compensated for all time worked in accordance with the FLSA and state 

wage and hour Laws. All individuals who have provided services to Sellers and their Subsidiaries as 

independent contractors have been properly classified as independent contractors, rather than as employees, 

for purposes of all applicable Laws and Employee Benefit Plans. All employees of Sellers and their 

Subsidiaries who work in the United States are legally authorized to work in the United States.

(e) Neither Sellers nor their Subsidiaries is a party to, or otherwise bound by, any 

Order, consent decree with, or citation by, any Governmental Entity relating to employees or employment 

practices. Neither Sellers nor their Subsidiaries have received within the past three years any notice of intent 

by any government agency responsible for the enforcement of labor or employment laws to conduct an 

audit or investigation relating to any of them.

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(f) No Seller, no Subsidiary of any Seller and no ERISA Affiliate contributes to or 

within the past six years has had an obligation to contribute to: (i) a plan subject to Title IV of ERISA or 

the minimum funding standards of Section 302 of ERISA or Section 412 of the Code; (ii) a Multiemployer 

Plan; (iii) a multiple employer plan (within the meaning of Section 4063 or 4064 of ERISA or Section 

413(c) of the Code); or (iv) a multiple employer welfare arrangement (within the meaning of Section 3(40) 

of ERISA), in each case that could result in any material Liability to Buyer.

(g) Except as set forth on Schedule 4.7(g), neither the entry into this Agreement nor 

the consummation of the Transactions would be reasonably expected to: (i) result in the payment or 

provision to any Employee who is or becomes a Transferred Employee of any material payment or benefit 

in the nature of compensation from any Seller or any Subsidiary of any Seller, or any increase in any of the 

foregoing or (ii) accelerate the vesting or payment timing of any compensatory rights or benefits to any 

Employee who is or becomes a Transferred Employee.

4.8 Environmental. Except as would not, individually or in the aggregate, be, or would 

reasonably be expected to be, material to the Acquired Assets taken as a whole:

(a) None of the Real Property currently or formerly owned, leased or operated by or 

on behalf of any Seller (including soil and groundwater under such Real Property) (the “Properties”) that 

are part of the Jewel Business is the subject of any pending or, to the Knowledge of Sellers, threatened 

Proceeding by any Governmental Entity or any other Person regarding a release of any Hazardous 

Materials;

(b) To the Knowledge of Sellers, Hazardous Materials have not been stored, used, or 

released by any Seller or in a quantity or manner at, from or on any Property or at any off-site location, 

which, individually or in the aggregate, would reasonably be expected to result in any Liability of any Seller 

with respect to the Acquired Assets to pay for or perform any remedial action;

(c) Sellers, with respect to the Jewel Business, have not received any written notice 

from any Governmental Entity or any other Person regarding any pending or threatened Proceedings or 

other Liability regarding the release or disposal of Hazardous Materials or any actual or alleged violation 

of or other Liability under Environmental Laws; and

(d) Sellers have delivered or made available to Buyer copies of all material 

environmental reports, audits, and assessments prepared by or for Sellers or their Affiliates that are in 

Sellers’ possession or reasonable control, as well as all material correspondence with Governmental Entities 

or other Persons relating to material environmental conditions or other material environmental matters at 

any Property or otherwise concerning the operation of the Jewel Business.

Notwithstanding anything to the contrary contained in this Agreement, the representations and warranties 

in this Section 4.8 are the sole representations and warranties of Sellers relating to environmental matters 

or Environmental Laws.

4.9 Taxes.

(a) There are no material Liens on any of the Acquired Assets that arose in connection 

with, or are attributable to, any Seller’s failure to pay any Tax.

(b) Except as set forth on Schedule 4.9(b), there is no material dispute or claim 

concerning any Tax Liability of any Seller, with respect to the Jewel Business or the Acquired Assets, 

claimed, raised, or threatened by any Governmental Entity in writing.

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(c) Except as set forth on Schedule 4.9(c), each Seller has timely filed all material 

U.S. federal, State and other Tax Returns that it was required to file under applicable Law with respect to 

the Jewel Business or the Acquired Assets, and (i) all such Tax Returns are true, correct, and complete in 

all material respects, and (ii) all material Taxes with respect to the Jewel Business or the Acquired Assets 

due (whether or not shown on such Tax Returns) have been fully and timely paid (other than any Taxes not 

due as of the date of the filing of the Chapter 11 Cases as to which subsequent payment was prohibited by 

reason of the Chapter 11 Cases and any Taxes that are the subject of a Permitted Lien).

4.10 Compliance with Laws; Permits. The Jewel Business has been operated in compliance with 

all applicable Laws, and no Seller has received any written notice of any alleged material violation of 

applicable Law from any Governmental Entity or other Person Relating to the Jewel Business, in either 

case except as would not, individually or in the aggregate be, or would reasonably be expected to be, 

material to the Acquired Assets taken as a whole. Sellers hold all material Permits necessary or required 

pursuant to applicable Law for the operation of the Jewel Business as presently conducted and for the 

ownership, lease or operation of the Jewel Business and the construction of any material improvements 

currently under construction on the Leased Real Property. To Sellers’ Knowledge, (a) no Seller has received 

written notice of any material default under any Permit Relating to the Jewel Business and (b) no violations 

exist in respect of such Permits, except for such non-compliance and such facts, conditions or 

circumstances, the existence of which would not, individually or in the aggregate, be, or would reasonably 

be expected to be, material to the Acquired Assets taken as a whole.

4.11 Contracts. Subject to receipt of the Necessary Consents and compliance with Section 6.10, 

(i) subject to the entry of the Sale Order, each of the Assumed Contracts is in full force and effect and 

constitutes a valid and binding obligation of the applicable Seller, and, to the Knowledge of Sellers, each 

other party thereto, and (ii) no Seller is in breach or default in any material respect under any of the Assumed 

Contracts and, to the Knowledge of Sellers, the other parties to such Contracts are not in breach or default 

in any material respect thereunder (and in each such case no event exists that with the passage of time or 

the giving of notice would constitute such material breach or default in any material respect, result in a loss 

of material rights, result in the payment of any damages or penalties or result in the creation of any Liens 

thereunder or pursuant thereto other than Permitted Liens). To Sellers’ Knowledge, none of the Assumed 

Contracts have been cancelled or otherwise terminated by Sellers or any counterparty thereto, and neither 

Sellers nor any counterparty has delivered any written notice to the other party to such Assumed Contract 

regarding any such cancellation or termination of an Assumed Contract.

4.12 Insurance Claims. Schedule 4.12 contains a true, correct and complete list of all insurances 

policies as of the Agreement Date (including the names and insurers and policy numbers) that are owned 

by any Seller or name any Seller as an insured or loss payee and that are Relating to the Jewel Business and 

a description of all material pending claims under each of such insurance policies pertaining to the 

ownership and operation of the Jewel Business or the Acquired Assets. Sellers have within the past three 

(3) years reported all known material Claims or incidents to the respective insurers that have issued current 

and prior insurance policies insuring the Jewel Business to the extent that any such Claims or incidents 

would reasonably be expected to create a covered event under the terms and conditions of such policies and 

Sellers were required to report them pursuant to the terms of the policies.

4.13 Intellectual Property.

(a) Schedule 4.13(a) sets forth a true, correct and complete list of all material 

Intellectual Property that is, as of the Agreement Date, issued, registered, or subject to an application for 

registration that is Transferred Intellectual Property (the “Registered IP”).

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(b) Sellers own all Registered IP and all Transferred Intellectual Property free and 

clear of all Liens (other than Permitted Liens), and such Registered IP remains pending or in full force and 

effect and has not expired or been cancelled, in each case except as would not, individually or in the 

aggregate, be, or reasonably be expected to be, material to the Acquired Assets taken as a whole. 

(c) To the Knowledge of Sellers, (i) the Registered IP is valid and enforceable except 

as enforceability may be limited by applicable bankruptcy, insolvency or similar Laws affecting the 

enforcement of creditors’ rights generally or by equitable principles relating to enforceability and (ii) the 

past three (3) years of use and current use by Sellers of the Transferred Intellectual Property owned by or 

licensed to Sellers does not infringe or otherwise violate any Intellectual Property of any other Person 

except as would not, individually or in the aggregate, be, or reasonably be expected to be, material to the 

Acquired Assets taken as a whole. Except as provided for in Schedule 4.13(c), there is no Proceeding 

pending or, to the Knowledge of Sellers, threatened, alleging any such infringement or violation of any 

Seller’s rights in or to the Registered IP or other Transferred Intellectual Property owned by Sellers, except 

as would not, individually or in the aggregate, be, or reasonably be expected to be, material to the Acquired 

Assets taken as a whole. Except as provided for in Schedule 4.13(c), to the Knowledge of Sellers, no Person 

is infringing or otherwise violating the Registered IP or other Transferred Intellectual Property owned by 

Sellers.

4.14 Anti-Corruption and Sanctions.

(a) Each Seller and each of such Seller’s Subsidiaries, and, to the Knowledge of 

Sellers, all of their respective directors, officers, agents or employees, has been for the past five (5) years 

and currently is in compliance in all material respects with, Anti-Corruption Laws and Sanctions, 

Anti-Money Laundering Laws and Export Control and Customs Laws.

(b) None of Sellers or any of their Subsidiaries, or, to the Knowledge of Sellers, any 

directors, officers, agents or employees or Affiliates of Sellers or any of their Subsidiaries, or any other 

Person acting on their behalf has, (i) directly or indirectly, engaged in any Anti-Corruption Prohibited 

Activity, (ii) directly or indirectly engaged in any transaction or other business with a Restricted Party in 

violation of applicable Sanctions, or (iii) been or is the subject of any investigation by any Governmental 

Entity concerning compliance with Anti-Corruption Laws, Anti-Money Laundering Laws, Export Control 

and Customs Laws, or Sanctions. None of Sellers or any of their Subsidiaries, nor to the Knowledge of 

Sellers any of their respective officers, directors, employees, Affiliates or agents acting on their behalf, is a 

Restricted Party.

4.15 Data Privacy. In connection with its collection, storage, transfer (including transfer across 

national borders) and/or use of any personally identifiable information from any individuals, including any 

customers, prospective customers, employees and/or other third parties (collectively “Personal 

Information”), to the Knowledge of Sellers, each Seller is and, during the last four (4) years, has been in 

compliance with all applicable Laws in all relevant jurisdictions except as would not, individually or in the 

aggregate, be, or would reasonably be expected to be, material to the Acquired Assets taken as a whole and 

has obtained all necessary rights from the individuals and other third parties and complied in all material 

respects with all other requirements under applicable Laws to enable the use of such Personal Information 

for the purposes of the Jewel Business (as is customary in the retail and e-commerce industries) following 

Closing. Each Seller has commercially reasonable physical, technical, organizational and administrative 

security measures in place to protect all Personal Information collected by it or on its behalf from and 

against unauthorized access, use and/or disclosure in accordance with applicable Laws and to the 

Knowledge of the Sellers there have been no security incidents which have resulted in the accidental or 

unlawful destruction, loss, alteration or unauthorized disclosure of or access to Personal Information during 

the last four (4) years.

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4.16 Sufficiency. Except as set forth on Schedule 4.16, the Acquired Assets constitute all of the 

material assets, properties, rights and interests sufficient for the operation of the Jewel Business in 

substantially the same manner as operated as of the Agreement Date. As of the date hereof, Sellers do not 

own, hold or have any interest in the Jewel Inventory.

4.17 Exclusive Representations and Warranties. Except for the representations and warranties 

contained in this Article 4 (as modified by the Disclosure Schedules) and the other Transaction Documents, 

none of Sellers nor their respective Affiliates, nor any of their respective Representatives, makes or has 

made any other representation or warranty on behalf of Sellers or otherwise in respect of Sellers or the 

Jewel Business. Except for the representations and warranties contained in this Article 4 (as modified by 

the Disclosure Schedules) and the other Transaction Documents, each Seller (a) expressly disclaims and 

negates any representation or warranty, expressed or implied, at common law, by statute, or otherwise, 

relating to the condition of the Acquired Assets (including any implied or expressed warranty of 

merchantability or fitness for a particular purpose, or of conformity to models or samples of materials) and 

(b) disclaims all liability and responsibility for any representation, warranty, projection, forecast, statement, 

or information made, communicated, or furnished (orally or in writing) to Buyer or its Affiliates or 

Representatives (including any opinion, information, projection, or advice that may have been or may be 

provided to Buyer by any Representative of Sellers or any of their respective Affiliates). Sellers make no 

representations or warranties to Buyer regarding the probable success or profitability of the Jewel Business. 

The disclosure of any matter or item in any schedule hereto will not be deemed to constitute an 

acknowledgment that any such matter is required to be disclosed or is material or that such matter would 

result in a Sellers Material Adverse Effect.

ARTICLE 5

REPRESENTATIONS AND WARRANTIES OF BUYER

Buyer hereby represent and warrant to Sellers, as of the Agreement Date, except as set forth on the 

Disclosure Schedules, as follows:

5.1 Organization. Buyer is duly organized, validly existing and in good standing under the 

Laws of the jurisdiction of its organization. Buyer has all necessary corporate power and authority to own 

and operate its properties, to lease the property it operates under lease and to conduct its business.

5.2 Due Authorization, Execution and Delivery; Enforceability. Buyer has all requisite 

corporate power and authority to execute and deliver this Agreement and the other Transaction Documents 

to which it is (or will become at Closing) a party and to perform its obligations hereunder and thereunder. 

The execution, delivery and performance by Buyer of this Agreement and the other Transaction Documents 

to which it is (or will become at Closing) a party and the consummation of the Transactions have been duly 

and validly authorized by all requisite corporate action on the part of Buyer and no other corporate action 

on the part of Buyer is necessary to authorize this Agreement and such other Transaction Documents and 

to consummate the Transactions (subject, in the case of the obligation to consummate the Transactions, to 

the entry of the Sale Order). This Agreement and the other Transaction Documents to which Buyer is (or 

will become at Closing) party have been (or will be) duly and validly executed and delivered by Buyer and 

(assuming the due authorization, execution and delivery by all parties hereto and thereto, other than Buyer) 

constitute (or will constitute) valid and binding obligations of Buyer enforceable against Buyer in 

accordance with their terms (subject to the entry of the Bidding Procedures Order and, in the case of the 

obligation to consummate the Transactions, to the entry of the Sale Order), in each case except as 

enforceability may be limited by applicable bankruptcy, insolvency or similar Laws affecting the 

enforcement of creditors’ rights generally or by equitable principles relating to enforceability.

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5.3 Governmental Approvals. No notice to, consent, approval or authorization of or 

designation, declaration or filing with any Governmental Entity is required by Buyer with respect to Buyer’s 

execution and delivery of any Transaction Document to which it is (or will become at Closing) a party or 

the consummation of the Transactions, except (a) as may be required under the HSR Act, (b) the Sale Order 

having been entered by the Bankruptcy Court, and (c) any consent, approval or authorization of or 

designation, declaration or filing with any Governmental Entity the failure of which to be made or obtained 

would not, individually or in the aggregate, be reasonably expected to result in a Buyer Material Adverse 

Effect.

5.4 No Conflicts. The execution, delivery and performance by Buyer of any Transaction 

Document to which Buyer is (or will become at Closing) a party and the consummation of the Transactions, 

does not and will not (a) conflict with or result in any breach of any provision of its certificate of 

incorporation or bylaws or comparable governing documents, (b) conflict with or result in the breach of the 

terms, conditions or provisions of or constitute a default (or an event which with notice or lapse of time or 

both would become a default) under, or give rise to any right of termination, acceleration or cancellation 

under, any material Contract of Buyer, or (c) result in a violation of any Law or Order applicable to it, 

except, in the case of clauses (b) and (c), as would not, individually or in the aggregate, result in a Buyer 

Material Adverse Effect.

5.5 Availability of Funds and Financial Capability. To the extent that any portion of the 

Purchase Price is payable in cash, Buyer, as of the Closing, will have sufficient funds available to it to pay 

the cash portion of the Purchase Price on the Closing Date and to enable Buyer to perform all of its 

obligations under this Agreement. Immediately after giving effect to the consummation of the Transactions: 

(a) the fair saleable value (determined on a going concern basis) of the assets of Buyer will be greater than 

the total amount of its Liabilities; (b) Buyer will be solvent and able to pay its respective debts and 

obligations in the Ordinary Course of Business as they become due; (c) no transfer of property is being 

made and no obligation is being incurred in connection with the Transactions with the intent to hinder, 

delay or defraud either present or future creditors of Buyer in connection with the Transactions; (d) Buyer 

has not incurred, nor plans to incur, debts beyond its ability to pay as they become absolute and matured; 

and (e) Buyer will have adequate capital to carry on the Jewel Business and all businesses in which it is 

about to engage.

5.6 Adequate Assurances Regarding Executory Contracts. Buyer (or such of Buyer’s Affiliates 

which will be assuming any Assumed Contract in connection with the assumption and assignment of the 

Assumed Contracts by the Sellers) is and will be capable of providing adequate assurance of future 

performance of such Assumed Contract as required by the provisions of the Bankruptcy Code.

5.7 Condition and Location of Acquired Assets. Except as otherwise expressly set forth in this 

Agreement, Buyer understands and agrees that the Acquired Assets are furnished “as is”, “where is” and, 

subject only to the representations and warranties contained in Article 4, with all faults, limitations and 

defects (hidden and apparent) and, subject to the representations and warranties contained in Article 4, 

without any other representation or warranty of any nature whatsoever and without any guarantee or 

warranty (whether express or implied) as to their title, quality, merchantability or their fitness for Buyer’s 

intended use or a particular purpose or any use or purpose whatsoever.

5.8 Exclusive Representations and Warranties. Except for the representations and warranties 

contained in this Article 5 (as modified by the Disclosure Schedules), none of Buyer, its Affiliates, nor any 

of their respective Representatives, makes or has made any other representation or warranty on behalf of 

Buyer. Except for the representations and warranties contained in this Article 5 (as modified by the 

Disclosure Schedules), Buyer disclaims all liability and responsibility for any representation, warranty, 

projection, forecast, statement, or information made, communicated, or furnished (orally or in writing) to 

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Sellers or their respective Affiliates or Representatives (including any opinion, information, projection, or 

advice that may have been or may be provided to Sellers by any Representative of Buyer or any of their 

respective Affiliates). The disclosure of any matter or item in any schedule hereto will not be deemed to 

constitute an acknowledgment that any such matter is required to be disclosed or is material or that such 

matter would result in a Buyer Material Adverse Effect.

5.9 No Other Representations or Warranties of Sellers; Disclaimers.

(a) NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN 

THIS AGREEMENT, EXCEPT AS AND TO THE EXTENT EXPRESSLY SET FORTH IN THIS 

AGREEMENT AND IN THE TRANSACTION DOCUMENTS, BUYER ACKNOWLEDGES AND 

AFFIRMS THAT SELLERS MAKE NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, 

AND DISCLAIM ALL LIABILITY AND RESPONSIBILITY FOR ANY REPRESENTATION, 

WARRANTY, STATEMENT OR INFORMATION MADE OR COMMUNICATED (ORALLY OR IN 

WRITING) TO BUYER (INCLUDING ANY OPINION, INFORMATION, OR ADVICE THAT MAY 

HAVE BEEN PROVIDED TO BUYER BY ANY RESPECTIVE AFFILIATE OR REPRESENTATIVE 

OF SELLERS OR BY ANY INVESTMENT BANK OR INVESTMENT BANKING FIRM, SELLERS’ 

COUNSEL, OR ANY OTHER AGENT, CONSULTANT, OR REPRESENTATIVE OF SELLERS). 

OTHER THAN AS SET FORTH HEREIN OR IN THE OTHER TRANSACTION DOCUMENTS, 

BUYER FURTHER ACKNOWLEDGES AND AFFIRMS THAT SELLERS MAKE NO 

REPRESENTATION, COVENANT OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE 

ACCURACY OR COMPLETENESS OF ANY FILES, RECORDS OR DATA HERETOFORE OR 

HEREAFTER FURNISHED IN CONNECTION WITH THE ACQUIRED ASSETS (INCLUDING 

WITHOUT LIMITATION IN ANY CONFIDENTIAL INFORMATION STATEMENT OR 

MEMORANDUM, MANAGEMENT PRESENTATION, OR DOCUMENT MADE AVAILABLE IN A 

DATAROOM). OTHER THAN AS SET FORTH HEREIN OR IN THE OTHER TRANSACTION 

DOCUMENTS, ANY AND ALL SUCH FILES, RECORDS AND DATA FURNISHED BY SELLERS 

ARE PROVIDED AS A CONVENIENCE, AND ANY RELIANCE ON OR USE OF THE SAME SHALL 

BE AT BUYER’S SOLE RISK. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, 

EXCEPT AS SET FORTH IN THE TRANSACTION DOCUMENTS, BUYER FURTHER 

ACKNOWLEDGES AND AFFIRMS THAT SELLERS EXPRESSLY DISCLAIM ANY 

REPRESENTATION OR WARRANTY, EXPRESS, IMPLIED, AT COMMON LAW, BY STATUTE, 

OR OTHERWISE, RELATING TO (A) THE TITLE TO ANY OF THE ACQUIRED ASSETS, (B) THE 

CONDITION OF THE ACQUIRED ASSETS (INCLUDING ANY IMPLIED OR EXPRESS 

WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR 

CONFORMITY TO MODELS OR SAMPLES OF MATERIALS), IT BEING UNDERSTOOD THAT, 

OTHER THAN AS SET FORTH HEREIN OR IN THE OTHER TRANSACTION DOCUMENTS, THE 

ASSETS ARE BEING SOLD “AS IS,” “WHERE IS,” AND “WITH ALL FAULTS AS TO ALL 

MATTERS,” (C) FREEDOM FROM HIDDEN OR REDHIBITORY DEFECTS OR VICES, (D) ANY 

INFRINGEMENT BY SELLERS OF ANY PATENT OR PROPRIETARY RIGHT OF ANY THIRD 

PARTY, AND (E) ANY INFORMATION, DATA, OR OTHER MATERIALS.

(b) Buyer acknowledges and affirms that it has made its own independent 

investigation, analysis, and evaluation of the transactions contemplated hereby and the Acquired Assets 

(including Buyer’s own estimate and appraisal of the extent and value of the Acquired Assets). Buyer 

acknowledges that in entering into this Agreement, it has relied on the aforementioned investigation. Buyer 

hereby irrevocably covenants to refrain from, directly or indirectly, asserting any claim, or commencing, 

instituting, or causing to be commenced, any Proceeding of any kind against Sellers or any of their 

respective Affiliates or Subsidiaries, alleging facts contrary to the foregoing acknowledgment and 

affirmation.

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ARTICLE 6

COVENANTS OF THE PARTIES

6.1 Conduct of Jewel Business Pending the Closing. During the period from the date of this 

Agreement and continuing until the earlier of the termination of this Agreement in accordance with its terms 

and the Closing (the “Interim Period”), except (x) as may be required by Order of the Bankruptcy Court 

(provided that no Seller directly or indirectly petitioned, sought, requested or moved for such order of the 

Bankruptcy Court or authorized, supported or directed any other Person to petition, seek, request or move 

for such Order of the Bankruptcy Court), (y) as contemplated in the Liquidation Agreement, or (z) as 

contemplated by the Approved Budget, Sellers shall carry on the Jewel Business in the Ordinary Course of 

Business and, to the extent consistent therewith, use commercially reasonable efforts to preserve the Jewel 

Business intact and preserve the goodwill of and relationships with Governmental Entities, customers, 

suppliers, employees and others having business dealings with the Jewel Business. Notwithstanding the 

first sentence of this Section 6.1, during the Interim Period, except (I) as contemplated in the Liquidation 

Agreement or (II) as contemplated by the Approved Budget, Sellers shall not, and shall cause their 

Affiliates not to, directly or indirectly, without the prior written consent of Buyer:

(a) modify, amend, terminate, waive any material rights or obligations under or 

otherwise seek to reject any Assumed Contract, other than amendments of the Assumed Contracts in the 

Ordinary Course of Business that are not material to the Jewel Business;

(b) lease, license, surrender, relinquish, sell, transfer, convey, assign or otherwise 

dispose of any interest in any Acquired Assets other than (i) Acquired Assets that are not material to the 

Jewel Business in the Ordinary Course of Business, (ii) pursuant to an Order of the Bankruptcy Court 

(provided that no Seller directly or indirectly petitioned, sought, requested or moved for such order of the 

Bankruptcy Court or authorized, supported or directed any other Person to petition, seek, request or move 

for such Order of the Bankruptcy Court), and (iii) abandoning or permitting to lapse Registered IP that is 

not material to the Jewel Business or otherwise in the Ordinary Course of Business;

(c) mortgage, pledge or subject to Liens (other than Permitted Liens) any of the 

material Acquired Assets or any part thereof;

(d) except as required by any Benefit Plan or as required by applicable Law, 

(i) increase the compensation in any material respect of any Employee who is or becomes a Transferred 

Employee or (ii) accelerate the vesting or payment of the compensation payable to any Employee who is 

or becomes a Transferred Employee;

(e) institute, settle, compromise or agree to settle any (i) material Proceeding (other 

than the Chapter 11 Cases) before any Governmental Entity relating to the Acquired Assets or the Jewel 

Business or (ii) any pending or threatened Claim that could give rise to Liabilities that are not Assumed 

Liabilities, or modify in any manner that is adverse to the Jewel Business or the Acquired Assets, rescind, 

reject or terminate a Transferable Permit (or application therefor) relating to the Acquired Assets;

(f) with respect to any Acquired Asset, (i) make, change or revoke any material Tax 

election, (ii) change any annual Tax accounting period, (iii) enter into any agreement with respect to 

material Taxes or apply for any Tax ruling, (iv) file any amended Tax Return, (v) settle or compromise any 

Tax Liability or Claim for a Tax refund, (vi) surrender any right to Claim a refund for Taxes, (vii) incur 

any material Tax Liability outside of the Ordinary Course of Business, (viii) consent to an extension of the 

statute of limitations applicable to any Tax Claim or assessment (other than pursuant to extensions of time 

to file Tax Returns obtained in the Ordinary Course of Business) or (ix) change (or request any 

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Governmental Entity to change) any material aspect of its method of accounting for Tax purposes, in each 

case, except as required by applicable Law; or

(g) enter into any Contract to do any of the foregoing.

Nothing contained in this Agreement is intended to give Buyer or its Affiliates, directly or 

indirectly, the right to control or direct the business of Sellers prior to the Closing. 

6.2 Back-Up Bidder. If an Auction is conducted, and Buyer is not the Successful Bidder for 

the Acquired Assets, Buyer shall, in accordance with and subject to the Bidding Procedures, be required to 

serve as the back-up bidder if Buyer is the next highest or otherwise best bidder for the Acquired Assets at 

the Auction (the party that is the next highest or otherwise best bidder at the Auction after the Successful 

Bidder, the “Back-Up Bidder”) and, if Buyer is the Back-Up Bidder, Buyer shall, notwithstanding 

Section 8.1(b)(ii), be required to keep its bid to consummate the Transactions on the terms and conditions 

set forth in this Agreement (as the same may be improved upon by Buyer in the Auction) open and 

irrevocable until the Outside Back-Up Date. Following the Auction, if the Successful Bidder fails to 

consummate the applicable Alternative Transaction as a result of a breach or failure to perform on the part 

of such Successful Bidder, then Buyer, if Buyer is the Back-Up Bidder, will be deemed to have the 

new prevailing bid, and Sellers may seek authority to consummate the Transactions on the terms and 

conditions set forth in this Agreement (as the same may be improved upon by Buyer in the Auction) with 

the Back-Up Bidder.

6.3 Access. Subject to applicable Law, during the Interim Period, Sellers (a) shall give Buyer 

and its Representatives reasonable access during normal business hours to the offices, properties, officers, 

employees, accountants, auditors, counsel and other representatives, books and records of Sellers in each 

case to the extent relating to the Jewel Business, as Buyer reasonably deems necessary in connection with 

effectuating the transactions contemplated by this Agreement (b) shall furnish to Buyer and its 

Representatives such financial, operating and property data to the extent relating to the Jewel Business and 

other information as Buyer and its Representatives reasonably request and (c) shall cooperate reasonably 

with Buyer in its investigation of the Jewel Business. It is acknowledged and understood that no 

investigation by Buyer or other information received by Buyer shall operate as a waiver or otherwise affect 

any representation, warranty or other agreement given or made by Sellers hereunder. Buyer agrees that any 

on-site inspections of any of the Leased Real Property shall be conducted in the presence of Sellers or their 

Representatives. All inspections shall be conducted so as not to interfere unreasonably with the use of any 

of the Leased Real Property by Sellers. Notwithstanding the foregoing, Buyer shall not (i) have, by virtue 

of this Section 6.3, any additional access or investigation right to the extent it relates to the negotiation of 

this Agreement or the Transactions or (ii) conduct or cause to be conducted any sampling, testing, or 

subsurface or otherwise invasive investigation of the air, soil, surface water, groundwater, building 

materials or other environmental media (commonly known as a Phase II environmental assessment) at any 

property of Sellers, including any Leased Real Property. Buyer agrees to indemnify and hold Sellers and 

their Affiliates and their respective Representatives harmless of and from all actions, Claims, investigations, 

deficiencies, costs and expenses (including attorneys’ fees and expenses) that arise out of or relate to 

physical injuries arising from Buyer’s inspection of the Acquired Assets (other than to the extent any of the 

foregoing results from the willful misconduct of the Person seeking such indemnification), and 

notwithstanding anything to the contrary in this Agreement, such obligation to indemnify shall survive 

Closing or any termination of this Agreement. 

6.4 Public Announcements. Buyer and Sellers will consult with each other before issuing, and 

provide each other the opportunity to review and comment upon, any press release or public announcement 

of this Agreement and the Transactions, and neither Buyer nor any Seller shall issue any such press release 

or public announcement without the prior approval of the other Party, in each case except as may be required 

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by Law, court process (including the filing of this Agreement with the Bankruptcy Court as an exhibit to 

the Sale Motion) or by obligations pursuant to any listing agreement with any national securities exchange. 

Buyer and each Seller shall cause its Affiliates and Representatives to comply with this Section 6.4.

6.5 Tax Matters.

(a) All Transfer Taxes arising out of the transfer of the Acquired Assets pursuant to 

this Agreement shall be borne by Buyer. Sellers and Buyer shall cooperate to timely prepare and file any 

Tax Returns relating to such Transfer Taxes, including any Claim for exemption or exclusion from the 

application or imposition of any Transfer Taxes. Buyer or Sellers, as applicable, shall file all necessary 

documentation and returns with respect to such Transfer Taxes when due, and shall promptly, following 

the filing thereof, furnish a copy of such return or other filing and a copy of a receipt showing payment of 

any such Transfer Tax to the other Parties hereto. Buyer shall pay all such Transfer Taxes when due. 

Notwithstanding the foregoing, Sellers shall be reimbursed by Buyer with respect to any such Transfer 

Taxes paid by Sellers.

(b) Each of Buyer, on the one hand, and Sellers, on the other hand, shall furnish or 

cause to be furnished to the other, upon request, as promptly as practicable, such information and assistance 

relating to the Acquired Assets and the Jewel Business as is reasonably necessary for filing of all Tax 

Returns, including any Claim for exemption or exclusion from the application or imposition of any Taxes, 

the preparation for any audit by any Tax Authority and the prosecution or defense of any Proceeding relating 

to any Tax Return.

(c) Buyer and Sellers will use their commercially reasonable efforts to minimize any 

Transfer Taxes payable in connection with the transfer of the Acquired Assets pursuant to this Agreement, 

including the transfer via electronic transmission of all assets capable of being so transmitted.

6.6 Approvals; Reasonable Best Efforts; Notification; Consent.

(a) Subject to the terms and conditions of this Agreement, each Party shall use its 

reasonable best 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 Parties in doing, all things necessary, proper or advisable under applicable 

Law to consummate and make effective the Transactions. Without limiting the generality of the foregoing, 

the Parties will, at Buyer’s sole cost and expense, use their respective reasonable best efforts to (i) prepare 

and file as soon as practicable all forms, registrations and notices relating to the consents of Governmental 

Entities that are required by applicable Law to be filed in order to consummate Transactions that are 

material to the Jewel Business or to Buyer and its Affiliates (with respect to any filing required under the 

HSR Act, within five (5) Business Days following the Agreement Date, and with respect to any other such 

filing, as soon as reasonably possible), and take such actions as are reasonably necessary to obtain any 

consents from, or to avoid any action or proceeding by, any Governmental Entity relating to such approvals, 

including any Notification and Report Forms in connection with the HSR Act or approvals required under 

Environmental Law, including notifications and approvals necessary to transfer Permits, licenses and other 

authorizations required under Environmental Law (to the extent such Permits, licenses and other 

authorizations are transferable), (ii) take all actions necessary to transfer the Acquired Assets, (iii) take all 

actions necessary to cause all conditions set forth in Article 7 to be satisfied as soon as practicable (iv) lift 

or rescind any existing Order preventing, prohibiting or delaying the consummation of the Transactions, 

(v) effect all necessary registration, applications, notices and other filings required by applicable Law, 

including, as applicable to Sellers, under the Bankruptcy Code, and (vi) execute and deliver any additional 

instruments necessary to fully carry out the purposes of this Agreement; provided, however, that that 

nothing in this Agreement, including this Section 6.6 shall require Buyer to (A) consent to any material 

condition or material concession required by any Governmental Entity or third party; (B) consent to any 

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divestitures of any material subsidiary or material assets of Buyer or its Affiliates, or of the Jewel Business 

or the Acquired Assets or accept any material limitation on or material condition on the manner in which

any of the foregoing conducts their business; (C) pay any material amounts required or requested by any 

Governmental Entity; or (D) accept an agreement to hold separate any material portion of any business or 

of any material assets of any material subsidiary of Buyer or its Affiliates, or of the Jewel Business or the 

Acquired Assets. Buyer and Sellers shall not, and shall cause their respective Affiliates not to, take any 

action that would reasonably be expected to prevent or materially delay the approval of any Governmental 

Entity of any of the filings referred to in this Section 6.6(a).

(b) Each Party shall (i) respond as promptly as reasonably practicable to any inquiries 

or requests for additional information and documentary material received from any Governmental Entity 

relating to the matters described in Section 6.6(a), (ii) not extend any waiting period or agree to refile under 

the HSR Act (except with the prior written consent of the other Parties hereto, which consent shall not be 

unreasonably withheld, conditioned or delayed) and (iii) not enter into any agreement with the any 

Governmental Entity agreeing not to consummate the Transactions.

(c) In connection with and without limiting the foregoing, each Party shall, subject to 

applicable Law and except as prohibited by any applicable representative of any applicable Governmental 

Entity: (i) promptly notify the other Parties of any material written communication to that Party from any 

Governmental Entity concerning this Agreement or the Transactions, and permit the other Parties to review 

in advance (and to consider any comments made by the other Parties in relation to) any proposed written 

communication to any of the foregoing; (ii) not participate in or agree to participate in any substantive 

meeting, telephone call or discussion with any Governmental Entity in respect of any filings, investigation 

or inquiry concerning this Agreement or the Transactions unless it consults with the other Parties in advance 

and, to the extent permitted by such Governmental Entity, gives the other Parties the opportunity to attend 

and participate in such meeting, telephone call or discussion; and (iii) subject to the attorney-client and 

similar applicable privileges, furnish outside legal counsel for the other Parties with copies of all 

correspondence, filings, and written communications (and memoranda setting forth the substance thereof) 

between such Party and its Affiliates and their respective Representatives, on the one hand, and any 

Governmental Entity or its members or their respective staffs, on the other hand, with respect to this 

Agreement and the Transactions; provided, however, that any such Party may limit the disclosure of filings 

to protect confidential information, including limiting dissemination of filings to an “outside counsel only” 

basis.

6.7 Employee Matters. 

(a) Employee Offer List. No later than ten (10) Business Days following the 

Agreement Date, Sellers shall deliver to Buyer Schedule 6.7(a)(i), setting forth a list of each Employee and 

contractor, together with each Employee’s employing entity, work location (city, state/province, country), 

job title, base compensation (including salary or hourly rate, as applicable), active/leave status, credited 

service date, treatment by Sellers and their respective Subsidiaries of any United States employee as exempt 

or non-exempt, and whether or not subject to an agreement providing for anything other than “at will” 

employment (the “Employee List”). Not less than ten (10) days prior the anticipated Closing, Buyer shall 

make available to Sellers Schedule 6.7(a)(ii), setting forth a list of each Person on the Employee List to 

whom Buyer has determined to make an offer of employment in connection with the Closing (the 

“Employee Offer List”).

(b) Transferred Employees. Unless an earlier offer is otherwise required by applicable 

Law, approximately ten (10) days prior to the anticipated Closing, Buyer may, or may cause one of its 

Subsidiaries to, make an offer of employment, on such terms and conditions as Buyer may determine in its 

sole discretion to each Person on the Employee Offer List who then remains employed by any Seller or any 

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Subsidiary of any Seller (each, an “Employment Offer”). Each Person who accepts an Employment Offer 

(or any other offer of employment from Buyer or one of its Subsidiaries) and who commences or continues 

employment with Buyer or its Subsidiaries effective following the Closing (whether or not such offer is 

first made following the Closing Date and/or such employment commences following the Closing Date) 

shall be deemed a “Transferred Employee” for purposes of this Agreement.

(c) COBRA and HIPAA. Effective after the Closing, Buyer will, or will cause one of 

its Affiliates to, be responsible for all Liabilities arising after the Closing with respect to Transferred 

Employees and their eligible dependents in respect of health insurance under the Consolidated Omnibus 

Budget Reconciliation Act of 1985, as amended, the Health Insurance Portability and Accountability Act 

of 1996, Sections 601, et seq. and Sections 701, et seq. of ERISA, Section 4980B and Sections 9801, et 

seq. of the Code and applicable state or similar Laws.

(d) No Rights. Nothing in this Section 6.7, express or implied, shall (i) create any third 

party beneficiary right in any Person (other than the Parties), including any Employee, any other current or 

former employee or service provider of any Seller or any Subsidiary of any one or more Sellers, any 

participant in any Benefit Plan, or any dependent or beneficiary thereof, or any right to continued 

employment or service with any Seller, Buyer or any of their respective Subsidiaries or Affiliates; (ii) be 

deemed to constitute an amendment to any Benefit Plan or any other compensation or benefit plan, program, 

policy, agreement or arrangement, or to guarantee or require the employment or service of any Person for 

any length of time, or with any particular level of any element of compensation or benefit, except as may 

be required under applicable Law; or (iii) be interpreted to prevent or restrict Buyer or any of its Affiliates 

from modifying or terminating the employment or terms of employment of any Transferred Employee, 

including the amendment or termination of any employee benefit or compensation plan, program or 

arrangement, after the Closing Date. Except as specifically set forth in this Agreement: (X) Buyer shall not 

be obligated to assume, continue or maintain any Benefit Plans; (Y) no assets or liabilities of the Benefits 

Plans shall be transferred to, or assumed by, Buyer or Buyer’s benefit plans; (Z) Sellers and their 

Subsidiaries shall be solely responsible for funding and/or paying any benefits under any of the Benefit 

Plans, including any termination benefits and other employee entitlements accrued under such plans by or 

attributable to employees of any of the Sellers and their Subsidiaries.

(e) Cooperation. Buyer and Sellers shall, and shall cause their respective Subsidiaries 

to, reasonably cooperate with each other (including sharing documentation and providing assistance) in 

connection with the transition of the Transferred Employees pursuant to, and the compliance with, the 

requirements of this Section 6.7. Sellers shall permit, and cause their respective Subsidiaries to permit, 

Buyer to contact and make arrangements with such Seller’s or Subsidiary’s employees regarding 

employment or prospective employment by Buyer after the Closing and for the purpose of ensuring the 

continuity of the Jewel Business, and each Seller agrees not to discourage, and to cause their Subsidiaries 

not to discourage, any such employees from consulting with Buyer. The Sellers shall, and shall cause their 

respective Subsidiaries to, make available to Buyer such personnel and similar information as Buyer may 

request with respect to any Transferred Employee, including compensation and employment records.

(f) WARN Act. On the Closing Date, Sellers shall provide to Buyer Schedule 6.7(f), 

setting forth a list, by date and location, of all employee terminations or layoffs (whether individually or as 

a group) implemented by any Seller or any Subsidiary of any Seller during the ninety (90) day period 

preceding the Closing. From and after the Closing, Buyer will, and will cause its Affiliates to, provide any 

required notice under the WARN Act and otherwise comply with the WARN Act with respect to any “plant 

closing” or “mass layoff” (as defined in the WARN Act) or group termination or similar event affecting 

any Transferred Employee.

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6.8 Further Assurances. The Parties agree to (a) furnish upon request to each other such further 

information, (b) execute, acknowledge and deliver to each other such other documents and (c) do such other 

acts and things, all as the other Party may reasonably request for the purpose of carrying out the intent of 

this Agreement and the Transaction Documents; provided that nothing in this Section 6.8 or this Agreement 

shall prohibit Sellers from ceasing operations or winding up their affairs following the Closing.

6.9 Bankruptcy Court Filings.

(a) Promptly upon the selection of Buyer as the Successful Bidder, Sellers shall 

execute this Agreement and shall pursue the entry of the Sale Order. Sellers shall use commercially 

reasonable efforts to comply (or obtain an Order from the Bankruptcy Court waiving compliance) with all 

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

Bankruptcy Rules in connection with obtaining approval of the Sale Order. Sellers shall consult with Buyer 

and its Representatives concerning the Sale Order, any other Orders of the Bankruptcy Court relating to the 

Transactions, and the bankruptcy proceedings in connection therewith, and use commercially reasonable 

efforts to provide Buyer with copies of applications, pleadings, notices, proposed Orders and other 

documents relating to such proceedings as soon as reasonably practicable prior to filing. In furtherance of 

the foregoing, Sellers shall provide Buyer with a reasonable opportunity to review and comment on all 

material motions to be filed in the Chapter 11 Cases that relate to the Transactions, to the extent practicable, 

prior to their filing with the Bankruptcy Court.

(b) Buyer agrees that it will promptly take such actions as are reasonably requested by 

Sellers to assist in obtaining entry of Sale Order and a finding of adequate assurance of future performance 

by Buyer or Designated Purchaser, as applicable, under the Assumed Contracts, including furnishing 

affidavits or other documents or information for filing with the Bankruptcy Court for the purposes, among 

others, of providing necessary assurances of performance by Buyer under this Agreement and 

demonstrating that Buyer is a “good faith” purchaser under section 363(m) of the Bankruptcy Code; 

provided, however, in no event shall Buyer or Sellers be required to agree to any amendment of this 

Agreement.

(c) Sellers further covenant and agree that, after the execution of this Agreement by 

the Sellers, the terms of any reorganization or liquidation plan submitted to the Bankruptcy Court by either 

or both of them, or any other court for confirmation or sanction, shall not be intended to (or reasonably 

likely to) supersede, abrogate, nullify or restrict the terms of this Agreement in any material respect, or 

prevent the consummation or performance of the Transactions, in each case except as expressly permitted 

pursuant to Section 6.2 or the Bidding Procedures.

6.10 Cure Costs. On the Closing Date, Sellers shall transfer and assign the Assumed Contracts 

to Buyer or Designated Purchaser, as applicable, pursuant to Section 365 of the Bankruptcy Code and the 

Sale Order. Buyer or Designated Purchaser, as applicable, shall assume all Assumed Contracts from Sellers, 

as of the Closing Date pursuant to the Sale Order. In connection with the assumption and assignment of 

the Assumed Contracts, Buyer or Designated Purchaser, as applicable, shall cure any monetary defaults 

under the Assumed Contracts by payment of any Cure Costs (or create reserves therefor) as determined in 

accordance with the Bidding Procedures Order. Buyer or Designated Purchaser, as applicable, shall be 

responsible for demonstrating and establishing adequate assurance of future performance before the 

Bankruptcy Court with respect to the Assumed Contracts.

6.11 Preservation of Books and Records. After the Closing Date, Buyer shall provide to Sellers 

and their respective Affiliates and Representatives (after reasonable notice and during normal business 

hours and without charge to Sellers other than the costs of copying, if any) reasonable access to, including 

the right to make copies of, all books and records included in and otherwise related to the Acquired Assets, 

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to the extent necessary to permit Sellers to determine any matter relating to its rights and obligations 

hereunder or to any period ending on or before the Closing Date (for example, for purposes of any Tax or 

accounting audit or any claim or litigation matter, but not for any dispute or claim between Buyer and Seller 

in connection with this Agreement, the Transaction Documents or otherwise), for periods prior to the 

Closing and shall preserve such books and records until the later of (i) such period as shall be consistent

with Buyer’s records retention policy in effect from time to time, (ii) the retention period required by 

applicable Law, (iii) the conclusion of all bankruptcy proceedings relating to the Chapter 11 Cases or (iv) in 

the case of books and records relating to Taxes, the expiration of the statute of limitations applicable to 

such Taxes. Such access shall include access to any information in electronic form to the extent reasonably 

available. Buyer acknowledges that Sellers have the right to retain originals or copies of all of books and 

records included in or related to the Acquired Assets for periods prior to the Closing. 

6.12 Bulk Transfer Laws. The Parties intend that pursuant to Section 363(f) of the Bankruptcy 

Code, the transfer of the Acquired Assets shall be free and clear of any security interests in the Acquired 

Assets, including any liens or claims arising out of the bulk transfer laws, and the parties shall take such 

steps as may be necessary or appropriate to so provide in the Sale Order. In furtherance of the foregoing, 

each Party hereby waives compliance by the Parties with the “bulk sales,” “bulk transfers” or similar Laws 

and all other similar Laws in all applicable jurisdictions in respect of the transactions contemplated by this 

Agreement.

6.13 Overhead and Shared Services; Transition Services.

(a) Except as set forth in the Transition Services Agreement, Buyer acknowledges and 

agrees that, effective as of the Closing Date: (i) all Overhead and Shared Services provided to the Jewel 

Business shall cease; and (ii) Sellers and their Affiliates shall have no further obligation to provide any such 

Overhead and Shared Services to the Jewel Business.

(b) Except as set forth in the Transition Services Agreement, Buyer agrees to assume 

responsibility for, and pay all expenses in connection with, removing, transporting or relocating all 

Acquired Assets that, at the Closing, are located at any of the facilities or Real Property of any Seller or 

any of their Affiliates, and which, if reasonably requested by Buyer, have been packaged by any Seller 

(which packaging shall be at Buyer’s cost and expense) for transport, other than any Acquired Assets that 

will be used by Sellers in connection with their performance of the Transition Services Agreement. Such 

removal, transportation or relocation shall be completed by Buyer within thirty (30) days following the 

Closing Date or, in the case of Acquired Assets used by Sellers in connection with their performance of the 

Transition Services Agreement, within thirty (30) days following the termination or expiration of the 

applicable service(s) under the Transition Services Agreement or as otherwise specifically provided in the 

Transition Services Agreement. Sellers agree, from and after the Closing Date or the date of termination of 

the Transition Services Agreement, to provide Buyer, its agents and employees, reasonable access to such 

facilities during reasonable business hours and upon reasonable notice for purposes of removing such 

Acquired Assets. Sellers shall have no Liability to Buyer in connection with the storage at, or removal from, 

such facilities of such Acquired Assets after the Closing, and risk of loss with respect to such Acquired 

Assets shall pass to Buyer upon the Closing. Buyer shall be responsible for the costs of repairing any 

damage to such facilities resulting from the removal of such Acquired Assets therefrom after the Closing 

Date.

6.14 Payments from Third Parties After Closing. Subject to any applicable terms in the 

Transition Services Agreement, in the event that any Seller receives any payment from a third party (other 

than Buyer or any of its Affiliates) after the Closing Date pursuant to any of the Assumed Contracts (or 

with respect to the operation by Buyer of the Jewel Business or any Acquired Asset during the post-Closing 

period) and to the extent such payment is not in respect of an Excluded Asset or an Excluded Liability, 

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Sellers shall forward such payment, as promptly as practicable but in any event within thirty (30) days after 

such receipt, to Buyer (or other entity nominated by Buyer in writing to Sellers) and notify such third party 

to remit all future payments (in each case, to the extent such payment is in respect of any post-Closing 

period with respect to the Jewel Business and is not in respect of an Excluded Asset or an Excluded 

Liability) pursuant to the Assumed Contracts to Buyer (or such other entity). Notwithstanding anything to 

the contrary in this Agreement, in the event that Buyer or any of its Affiliates receives any payment from a 

third party after the Closing on account of, or in connection with, any Retained Business and/or any 

Excluded Asset, Buyer shall forward such payment, as promptly as practicable but in any event within thirty 

(30) days after such receipt, to Sellers (or other entity nominated by Sellers in writing to Buyer) and notify 

such third party to remit all future payments on account of or in connection with the Retained Business and 

any Excluded Assets to Sellers (or such other entity).

6.15 Letters of Credit. On the Closing Date, Buyer shall, at its sole cost and expense, (i) use 

commercially reasonable efforts to replace any letters of credit, banker’s acceptance or similar credit 

transactions that secure any Assumed Liabilities of Sellers or their Affiliates Relating to the Jewel Business 

and (ii) cause such letters of credit, banker’s acceptance or similar credit transactions to be released and 

returned to the Sellers.

6.16 Notification of Certain Matters. 

(a) Gemstone will promptly notify Buyer of: (i) any written notice or other 

communication from any Person alleging that the consent of such Person is or may be required in 

connection with the transactions contemplated by this Agreement, except with respect to any consent the 

failure of which to be obtained would not be, or reasonably be expected to be, material to the Acquired 

Asset; (ii) any written notice or other communication from any Governmental Entity (other than the Chapter 

11 Cases) related to or in connection with the transactions contemplated by this Agreement; and (iii) 

promptly upon discovery thereof, any material variances from, or the existence or occurrence of any event, 

fact or circumstance arising after the execution of this Agreement that would reasonably be expected to 

cause any of the representations and warranties contained in Article 4 to be untrue or inaccurate in a manner 

that would reasonably be expected to cause the conditions set forth in Section 7.1 not to be satisfied.

(b) Sellers shall use their reasonable best efforts to deliver to Buyer the following 

additional information (as of the Agreement Date) within ten (10) Business Days after the Agreement Date:

(i) a true and correct list of all material Benefit Plans;

(ii) with respect to the material Benefit Plans, true and complete copies of the 

plan documents and any amendments thereto;

(iii) a true and complete list of all Contracts Relating to the Jewel Business or 

that are otherwise material to the Jewel Business, and true and complete copies of all such Contracts, each 

as amended as of the Agreement Date;

(iv) a true and correct list of any letters of credit, banker’s acceptance or similar 

credit transactions that secure any Assumed Liabilities of Sellers or their Affiliates Relating to the Jewel 

Business; 

(v) a true, accurate and complete list of each lease, ground lease, sublease, 

license, option or other agreement related to the Leased Real Property; and

(vi) a true and complete list of each Necessary Consent.

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6.17 Confidentiality. 

(a) Upon and for a period of one (1) year following the Closing, Sellers shall, and shall 

cause their respective Affiliates and representatives to, keep confidential all non-public information 

regarding the Acquired Assets or the Jewel Business, except for (i) such public disclosure as Sellers and its 

counsel may reasonably determine to be required under any applicable Law, regulation, stock exchange 

requirement or Order (provided that Sellers will provide Buyer with prior written notice of any such 

disclosure to the extent permitted by applicable Law and, where applicable and reasonably requested by 

Buyer and at Buyer’s sole cost and expense, Sellers will use commercially reasonable efforts to cooperate 

with Buyer to obtain a protective order or other confidential treatment or otherwise limit the scope of 

information that is required to be disclosed, and Sellers shall only disclose that portion of such information 

as Sellers are advised by its in counsel in writing is required to be disclosed) and (ii) disclosure to its 

representatives solely to the extent that such parties need to know such information and agree to be bound 

by confidentiality obligations no less protective than those set forth in this Section 6.17. Sellers will be 

responsible for any disclosure by their respective Affiliates and representatives of any such non-public 

information regarding the Acquired Assets or the Jewel Business to the same degree as if such disclosure 

were made by Sellers.

(b) During the Interim Period, Buyer shall, and shall cause its Affiliates, Designated 

Purchasers (if any) and representatives to, abide by the confidentiality provisions set forth in that certain 

Confidentiality Agreement, dated as of December 14, 2018, by and between Gemstone and Buyer.

6.18 Communication With Other Bidders. Unless prohibited by Law, Buyer (and its 

representatives) may, with the prior written approval of Sellers (which such approval may be granted or 

withheld in Sellers’ sole discretion) initiate, participate or agree to participate in any meeting or engage in 

substantive discussion with any potential bidders in the Auction regarding this Agreement, the Transactions, 

the Jewel Business, the Auction, the Retained Business or any matter related thereto (including discussions 

regarding potential joint bidding arrangements or stalking horse bids with respect to specific parts of the 

Jewel Business). Gemstone and its representatives shall have the right to attend and participate in any such 

discussions, subject to appropriate confidentiality arrangements, and Buyer and its representatives shall 

cooperate and work together in good faith with Gemstone and its representatives, and keep Gemstone and 

its representatives reasonably informed, in connection with any such meeting or substantive discussion.

6.19 Personally Identifiable Information. Buyer acknowledges that the Acquired Assets include 

personally identifiable information within the meaning of Section 363(b) of the Bankruptcy Code, including 

personal information about the Sellers’ customers (such Acquired Assets collectively, “PII”). In connection 

therewith, from and after the Closing, Buyer shall: (a) maintain appropriate security controls and procedures 

(technical, operational, managerial and otherwise) to protect PII, (b) abide by all Laws applicable to PII and 

(c) take such further actions with respect to PII as may be agreed between the Parties in their discretion. 

Buyer further agrees that it shall (i) abide by Sellers’ privacy policies and privacy-related covenants made 

in Sellers’ terms of service that were in effect as of the Petition Date with respect to such PII (it being 

understood that Buyer may revise such policies and terms as provided by such policies and terms), 

(ii) respect prior requests of customers to opt out of receipt of marketing messages (to the extent Sellers 

make Buyer aware of such requests; provided, that Buyer shall seek to obtain such information from Sellers) 

and (iii) use personal information only for the purposes of continuing Jewel Business operations and 

continuing to provide similar goods and services to customers, including marketing the products and 

services related to Acquired Assets or as otherwise permitted by Sellers’ privacy policies or privacy-related 

covenants made in Sellers’ terms of service.

6.20 Sell-Off of Inventory. From and after the Closing, Sellers shall use commercially 

reasonable efforts to enforce any covenant included in any agreement to which any Seller is a party that 

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restricts, conditions or limits the ability of any Person to sell Inventory manufactured for the Jewel Business 

and Seller shall not amend, modify or waive any such covenant without the prior written consent of Buyer. 

6.21 Asset Identification. If Sellers gain Knowledge of any property, asset, interest and right of 

every nature, tangible and intangible, of Sellers, real or personal, now existing or hereafter acquired, 

whether or not reflected on the books or financial statements of Sellers as the same shall exist on the Closing 

Date, Relating to the Jewel Business that is neither (i) an Acquired Asset nor (ii) an Excluded Asset under 

Section 2.2(a) through Section 2.2(i) or Section 2.2(k) through Section 2.2(o) (the “Additional Assets”), 

then at the written request of Buyer and without any further consideration, Sellers shall use their reasonable 

best efforts to (a) execute and deliver to Buyer such other instruments of sale, transfer, conveyance, 

assignment and confirmation; (b) provide such materials and information; and (c) take such other actions, 

as Buyer may reasonably deem necessary or desirable in order to transfer, convey, and assign to Buyer, to 

confirm Buyer’s title to the Additional Assets. Notwithstanding anything to the contrary set forth herein, 

the Additional Assets shall be Acquired Assets for all purposes of this Agreement.

ARTICLE 7

CONDITIONS TO OBLIGATIONS OF THE PARTIES

7.1 Conditions Precedent to Obligations of Buyer. The obligation of Buyer to consummate the 

Transactions is subject to the satisfaction (or written waiver by Buyer in Buyer’s sole discretion) at or prior 

to the Closing Date of each of the following conditions:

(a) Accuracy of Representations and Warranties. The representations and warranties 

of Sellers (i) set forth in Section 4.1 (Organization) and Section 4.2 (Due Authorization) (collectively, the 

“Seller Fundamental Representations”) shall be true and correct in all respects and (ii) set forth in Article 4

(other than the Seller Fundamental Representations) shall be true and correct (disregarding all qualifications 

or limitations as to “materiality” or “Sellers Material Adverse Effect” and words of similar import set forth 

therein), except where the failure of such representations or warranties to be true and correct would not 

reasonably be expected to have a Sellers Material Adverse Effect, in the case of each of clauses (i) and (ii), 

as of the Agreement Date and at and as of the Closing as though made at and as of the Closing (in each 

case, except to the extent expressly made as of another date, in which case as of such date as if made at and 

as of such date).

(b) Performance of Obligations. Sellers shall have performed in all material respects 

all obligations and agreements contained in this Agreement required to be performed by them on or prior 

to the Closing Date.

(c) Officer’s Certificate. Buyer shall have received a certificate, dated the Closing 

Date, of an executive officer of each Seller to the effect that the conditions specified in Sections 7.1(a) and 

7.1(b) above have been fulfilled and/or waived.

(d) Antitrust Approval. All applicable waiting periods under the HSR Act related to 

the Transactions shall have expired or been terminated, if required.

(e) Sale Order. After notice and a hearing as defined in Section 102(1) of the 

Bankruptcy Code, the Bankruptcy Court shall have entered the Sale Order, and such Sale Order shall be in 

full force and effect and shall not have been reversed, stayed, modified, amended or vacated, and as to 

which the time to appeal or seek certiorari or move for a vacatur, new trial, reargument or rehearing has 

expired, and no appeal or petition for certiorari or other proceedings for a vacatur, new trial, reargument or 

rehearing has been timely taken, or as to which any appeal that has been taken or any petition for certiorari 

that has been timely filed has been withdrawn or resolved by the highest court to which the Order was 

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appealed or from which certiorari was sought or the vacatur, new trial, reargument or rehearing shall have 

been denied or resulted in no modification of such Order.

(f) No Order. No court or other Governmental Entity has issued, enacted, entered, 

promulgated or enforced any Law or Order (that is final and non-appealable and that has not been vacated, 

withdrawn or overturned) restraining, enjoining or otherwise prohibiting the transactions contemplated by 

this Agreement.

(g) No Sellers Material Adverse Effect. No Sellers Material Adverse Effect has 

occurred since the date hereof that is continuing.

(h) Selection of Buyer as Successful Bidder. Buyer shall have been selected as 

Successful Bidder.

(i) Inventory Purchase Agreement. The Inventory Purchase Agreement shall be in 

full force and effect.

7.2 Conditions Precedent to the Obligations of Sellers. The obligation of Sellers to 

consummate the Transactions is subject to the satisfaction (or written waiver by Sellers) at or prior to the 

Closing Date of each of the following conditions:

(a) Accuracy of Representations and Warranties. The representations and warranties 

of Buyer (i) set forth in Section 5.1 (Organization) and Section 5.2 (Due Authorization), shall be true and 

correct in all material respects and (ii) set forth in Article 5 (other than those described in clause (i)) shall 

be true and correct (disregarding all qualifications or limitations as to “materiality” or “Buyer Material 

Adverse Effect” and words of similar import set forth therein), except where the failure of such 

representations or warranties to be true and correct would not reasonably be expected to have a Buyer 

Material Adverse Effect, in the case of each of clauses (i) and (ii), as of the Agreement Date and at and as 

of the Closing as though made at and as of the Closing (in each case, except to the extent expressly made 

as of another date, in which case as of such date as if made at and as of such date).

(b) Performance of Obligations. Buyer shall have performed in all material respects 

all obligations and agreements contained in this Agreement required to be performed by it on or prior to the 

Closing Date.

(c) Officer’s Certificate. Sellers shall have received a certificate, dated the Closing 

Date, of an executive officer of Buyer to the effect that the conditions specified in Sections 7.2(a) and 

7.2(b) above have been fulfilled and/or waived.

(d) Antitrust Approval. All applicable waiting periods under the HSR Act related to 

the Transactions shall have expired or been terminated, if required.

(e) Sale Order. After notice and a hearing as defined in Section 102(1) of the 

Bankruptcy Code, the Bankruptcy Court shall have entered the Sale Order, and such Sale Order shall be in 

full force and effect and shall not have been reversed, stayed, modified, amended or vacated, and as to 

which the time to appeal or seek certiorari or move for a vacatur, new trial, reargument or rehearing has 

expired, and no appeal or petition for certiorari or other proceedings for a vacatur, new trial, reargument or 

rehearing has been timely taken, or as to which any appeal that has been taken or any petition for certiorari 

that has been timely filed has been withdrawn or resolved by the highest court to which the Order was 

appealed or from which certiorari was sought or the vacatur, new trial, reargument or rehearing shall have 

been denied or resulted in no modification of such Order.

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(f) No Order. No court or other Governmental Entity has issued, enacted, entered, 

promulgated or enforced any Law or Order (that is final and non-appealable and that has not been vacated, 

withdrawn or overturned) restraining, enjoining or otherwise prohibiting the transactions contemplated by 

this Agreement.

7.3 Frustration of Conditions Precedent. None of Buyer or Sellers may rely on the failure of 

any condition set forth in this Article 7, as applicable, to be satisfied if such failure was caused by such 

Party’s failure to use, as required by this Agreement, its reasonable best efforts to consummate the 

Transactions contemplated hereby.

ARTICLE 8

TERMINATION

8.1 Termination of Agreement. This Agreement may be terminated and the Transactions 

abandoned at any time prior to the Closing:

(a) by written agreement of Sellers and Buyer;

(b) by either Sellers or Buyer:

(i) if there shall be any Law that makes consummation of the Transactions 

illegal or otherwise prohibited, or if any Order permanently restraining, prohibiting or enjoining Buyer or 

Sellers from consummating the Transactions is entered and such Order shall become final, provided,

however, that no termination may be made by a Party under this Section 8.1(b)(i) if the issuance of such 

Order was caused by the breach or action or inaction of such Party;

(ii) subject to Section 6.2, upon the filing of a motion by a Seller to approve 

an Alternative Transaction or the Bankruptcy Court’s entry of an order approving an Alternative 

Transaction; or

(iii) if (A) a trustee or an examiner with expanded powers is appointed in any 

of the Chapter 11 Cases or (B) any of the Chapter 11 Cases is dismissed or converted to a case under 

Chapter 7 of the Bankruptcy Code;

(c) by Buyer if (i) there shall have been a breach by any Seller of any of its 

representations, warranties, covenants or agreements contained in this Agreement, which breach would 

result in the failure to satisfy one or more of the conditions set forth in Section 7.1, or (ii) any other event 

or condition shall result in any Seller being incapable of satisfying one or more conditions set forth in 

Section 7.1, and in either case such breach or other event or condition shall be incapable of being cured or, 

if capable of being cured, shall not have been cured within twenty (20) days after written Notice thereof 

shall have been received by Sellers; provided, that as of such date, Buyer is not in breach of this Agreement, 

which breach would result in the failure to satisfy one or more of the conditions set forth in Section 7.2;

(d) by Buyer if, subject to Section 6.2, Buyer is not selected as the Successful Bidder 

or the Back-Up Bidder at the Auction;

(e) by Sellers, if (i) there shall have been a breach by Buyer of any of its 

representations, warranties, covenants or agreements contained in this Agreement, which breach would 

result in the failure to satisfy one or more of the conditions set forth in Section 7.2, or (ii) any other event 

or condition shall result in Buyer being incapable of satisfying one or more conditions set forth in 

Section 7.2, and in either case such breach or other event or condition shall be incapable of being cured or, 

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if capable of being cured, shall not have been cured within twenty (20) days after written Notice thereof 

shall have been received by Buyer; provided that as of such date, any Seller is not in breach of this 

Agreement, which breach would result in the failure to satisfy one or more of the conditions set forth in 

Section 7.1;

(f) by Buyer if a Sale Order has not been entered on or before March 15, 2019, and 

by Buyer or Sellers if the Closing shall not have occurred on or before March 15, 2019; provided, however, 

that a Party shall be permitted to terminate this Agreement pursuant to this Section 8.1(f) only if such Party 

is not itself in material breach of any of its representations, warranties, covenants or agreements contained 

herein; 

(g) by Sellers if the governing body of any Seller determines, upon advice from 

outside legal counsel, that proceeding with the Transactions or failing to terminate this Agreement would 

violate its or such governing body’s fiduciary obligations under applicable Law, including to pursue an 

Alternative Transaction. For the avoidance of doubt, and subject to the terms and conditions of this 

Agreement (including Buyer’s right to terminate this Agreement in accordance with this Section 8.1(g)), 

Sellers retain the right to pursue any transaction or restructuring strategy that, in Sellers’ business judgment, 

will maximize the value of their estates, provided however, that if Sellers terminate this Agreement (other 

than pursuant to Section 7.1(e)) at any time after Buyer has been selected as the Successful Bidder, Sellers 

shall promptly return Buyer’s Good Faith Deposit and Incremental Deposit Amount, if applicable; and

(h) by written notice from Buyer to Gemstone, if Buyer is neither the Successful 

Bidder nor the Backup Bidder following the Auction.

8.2 Consequences of Termination. In the event of any termination of this Agreement by either 

or both of Buyer and Sellers pursuant to Section 8.1, written Notice thereof shall be given by the terminating 

Party to the other Parties hereto, specifying the provision hereof pursuant to which such termination is 

made, this Agreement shall thereupon terminate and become void and of no further force and effect (other 

than Section 6.4 (Public Announcements), this Section 8.2 (Consequences of Termination) and Article 9

(Miscellaneous) and to the extent applicable in respect of such Sections and Article, Article 1 (Definitions)), 

and the Transactions shall be abandoned without further action of the Parties hereto, except that such 

termination shall not relieve (a) Sellers of their Liability to make payments required by Section 8.1(g) or 

(b) any Party of any Liability for Fraud or willful breach of this Agreement.

ARTICLE 9

MISCELLANEOUS

9.1 Expenses. Except as set forth in this Agreement and whether or not the Transactions are 

consummated, each Party hereto shall bear all costs and expenses incurred or to be incurred by such Party 

in connection with this Agreement and the consummation of the Transactions.

9.2 Assignment. Neither this Agreement nor any of the rights or obligations hereunder may be 

assigned by Sellers without the prior written consent of Buyer, or by Buyer without the prior written consent 

of Sellers; provided, that Buyer may assign its rights and obligations to a Designated Purchaser so long as 

Buyer remains primarily liable for its obligations. Subject to the foregoing, this Agreement shall be binding 

upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns 

including any liquidating trustee, responsible Person or similar representative for Sellers or Sellers’ estate 

appointed in connection with the Chapter 11 Cases.

9.3 Parties in Interest. This Agreement shall be binding upon and inure solely to the benefit of 

Sellers (and their estates), Buyer and their respective successors or permitted assigns, and nothing in this 

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Agreement, express or implied, is intended to or shall confer upon any other Person any rights, benefits or 

remedies of any nature whatsoever under or by reason of this Agreement except as expressly set forth 

herein.

9.4 Releases. Effective as of the Closing: (a) Sellers hereby release Buyer and its Affiliates 

and the equityholders, directors, managers, officers, employees, members, partners, limited partners, agents 

and representatives of Buyer and its Affiliates (collectively, the “Buyer Released Parties”) from any and all 

Liabilities, actions, rights of action, contracts, indebtedness, obligations, Claims, causes of action, suits, 

damages, demands, costs, expenses and attorneys’ fees whatsoever, of every kind and nature, known or 

unknown, disclosed or undisclosed, accrued or unaccrued, existing at any time, in all circumstances arising 

prior to Closing, that any Seller or its respective Affiliates and all such Persons’ respective successors and 

assigns, have or may have against any of Buyer Released Parties; provided that the foregoing shall not 

release any rights under this Agreement or any other Transaction Document; and (b) Buyer hereby releases 

Sellers and their respective Affiliates, and the equityholders, directors, managers, officers, employees, 

members, partners, limited partners, agents and representatives of Sellers and their respective Affiliates 

(collectively, the “Sellers Released Parties”) from any and all Liabilities, actions, rights of action, contracts, 

indebtedness, obligations, Claims, causes of action, suits, damages, demands, costs, expenses and attorneys’ 

fees whatsoever, of every kind and nature, known or unknown, disclosed or undisclosed, accrued or 

unaccrued, existing at any time, in all circumstances arising prior to Closing, that Buyer and its Affiliates 

and all of its and their respective successors and assigns, have or may have against any of Sellers Released 

Parties in relation to Gymboree Holding Corporation, a Delaware corporation, or any of its Subsidiaries 

(including Sellers), or the Transactions contemplated hereby; provided that the foregoing shall not release 

any rights under this Agreement or any other Transaction Document.

9.5 Notices. All notices, demands, requests, consents, approvals or other communications 

(collectively, “Notices”) required or permitted to be given hereunder or that are given with respect to this 

Agreement shall be in writing and shall be personally served, delivered by a nationally recognized overnight 

delivery service with charges prepaid, or transmitted by hand delivery, or facsimile or electronic mail, 

addressed as set forth below, or to such other address as such Party shall have specified most recently by 

written Notice. Notice shall be deemed given on the date of service or transmission if personally served or 

transmitted by facsimile or electronic mail with confirmation of receipt; provided that if delivered or 

transmitted on a day other than a Business Day or after 5:00 p.m. New York time, notice shall be deemed 

given on the next Business Day. Notice otherwise sent as provided herein shall be deemed given on the 

next Business Day following timely deposit of such Notice with an overnight delivery service:

If to any Seller or Sellers’ Representative:

Gymboree Group, Inc.

71 Stevenson Street, Suite 2200

San Francisco, CA 94105

Attention: Jon W. Kimmins and Kimberly Holtz MacMillan

Email: jon_kimmins@gymboree.com and

 kimberly_macmillan@gymboree.com

With copies (which shall not constitute notice) to:

Milbank LLP

55 Hudson Yards

New York, NY 10001

Attention: Evan R. Fleck and Scott W. Golenbock

Email: efleck@milbank.com and sgolenbock@milbank.com 

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If to Buyer: The Gap, Inc.

Two Folsom Street

San Francisco, CA 94105

Attention: Julie Gruber

Email: julie_gruber@gap.com

With copies (which shall not constitute notice) to:

Orrick, Herrington & Sutcliffe, LLP

405 Howard Street

San Francisco, CA 94105-2669

Attention: Brett Cooper

Email: bcooper@orrick.com

Rejection of or refusal to accept any Notice, or the inability to deliver any Notice because of 

changed address of which no Notice was given, shall be deemed to be receipt of the Notice as of the date 

of such rejection, refusal or inability to deliver.

9.6 Choice of Law. This Agreement shall be construed and interpreted, and the rights of the 

Parties shall be determined, in accordance with the Laws of the State of New York, without giving effect 

to any provision thereof that would require or permit the application of the substantive laws of any other 

jurisdiction.

9.7 Entire Agreement; Amendments and Waivers. This Agreement, the Sale Order, and all 

Transaction Documents and all certificates and instruments delivered pursuant hereto and thereto constitute 

the entire agreement among the Parties pertaining to the subject matter hereof and supersede all prior 

agreements, understandings, negotiations, and discussions, whether oral or written, of the Parties. This 

Agreement may be amended, supplemented or modified, and any of the terms, covenants, representations, 

warranties or conditions may be waived, only by a written instrument executed by Buyer and Sellers, or in 

the case of a waiver, by the Party waiving compliance. No waiver of any of the provisions of this Agreement 

shall be deemed or shall constitute a waiver of any other provision hereof (whether or not similar), and no 

such waiver shall constitute a continuing waiver unless otherwise expressly provided.

9.8 Counterparts; Facsimile and Electronic Signatures. This Agreement may be executed in 

two or more counterparts, each of which shall be deemed an original, and all of which together shall 

constitute one and the same instrument. Counterparts to this Agreement may be delivered via facsimile or 

electronic mail. In proving this Agreement, it shall not be necessary to produce or account for more than 

one such counterpart signed by the Party against whom enforcement is sought.

9.9 Severability. The invalidity or unenforceability of any provision of this Agreement shall 

not affect the validity or enforceability of any other provisions of this Agreement. In the event that any of 

the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be 

illegal, invalid or unenforceable, such provisions shall be limited or eliminated only to the minimum extent 

necessary so that this Agreement shall otherwise remain in full force and effect.

9.10 Headings. The table of contents and the headings of the Articles and Sections herein are 

inserted for convenience of reference only and are not intended to be a part of, or to affect the meaning or 

interpretation of, this Agreement.

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9.11 Exclusive Jurisdiction and Specific Performance.

(a) Subject to Section 9.11(b), without limiting any Party’s right to appeal any order 

of the Bankruptcy Court, (i) the Bankruptcy Court shall retain exclusive jurisdiction to enforce the terms of 

this Agreement and to decide any Claims or disputes which may arise or result from, or be connected with, 

this Agreement, any breach or default hereunder, or the Transactions, and (ii) any and all Proceedings 

related to the foregoing shall be filed and maintained only in the Bankruptcy Court, and the Parties hereby 

consent to and submit to the jurisdiction and venue of the Bankruptcy Court and shall receive Notices at 

such locations as indicated in Section 9.5. For the avoidance of doubt, this Section 9.11 shall not apply to 

any Claims that Buyer or its Affiliates may have against any third party following the Closing.

(b) Notwithstanding anything herein to the contrary, in the event the Chapter 11 Cases 

of Sellers are closed or dismissed, the Parties hereby agree that all Claims or disputes which may arise or 

result from, or be connected with, this Agreement, any breach or default hereunder, or the Transactions, 

shall be heard and determined exclusively in any federal court sitting in the Borough of Manhattan in the 

City of New York or, if that court does not have subject matter jurisdiction, in any state court located in the 

City and County of New York (and, in each case, any appellate court thereof), and the Parties hereby 

consent to and submit to the jurisdiction and venue of such courts.

(c) Buyer acknowledges that Sellers would be damaged irreparably in the event that 

the terms of this Agreement are not performed by Buyer in accordance with its specific terms or otherwise 

breached or Buyer fails to consummate the Closing and that, in addition to any other remedy that Sellers 

may have under law or equity, Sellers shall be entitled to seek injunctive relief to prevent breaches of the 

terms of this Agreement and to seek to enforce specifically the terms and provisions hereof that are required 

to be performed by Buyer. Buyer further agrees that no Seller shall be required to obtain, furnish or post 

any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in 

this Section 9.11, and irrevocably waives any right it may have to require the obtaining, furnishing or 

posting of any such bond or similar instrument.

(d) Sellers acknowledge that Buyer would be damaged irreparably in the event that 

the terms of this Agreement are not performed by Sellers in accordance with its specific terms or otherwise 

breached or Sellers fail to consummate the Closing and that, in addition to any other remedy that Buyer 

may have under law or equity, Buyer shall be entitled to seek injunctive relief to prevent breaches of the 

terms of this Agreement and to seek to enforce specifically the terms and provisions hereof that are required 

to be performed by Sellers. Each Seller further agrees that Buyer shall not be required to obtain, furnish or 

post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred 

to in this Section 9.11, and irrevocably waives any right it may have to require the obtaining, furnishing or 

posting of any such bond or similar instrument.

9.12 WAIVER OF RIGHT TO TRIAL BY JURY. SELLERS AND BUYER HEREBY WAIVE 

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT THEY MAY HAVE 

TO A TRIAL BY JURY IN RESPECT OF ANY PROCEEDING DIRECTLY OR INDIRECTLY 

ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS 

CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER 

THEORY). FOR THE AVOIDANCE OF DOUBT, THIS SECTION 9.12 SHALL NOT APPLY TO ANY 

CLAIMS THAT BUYER OR ITS AFFILIATES MAY HAVE AGAINST ANY THIRD PARTY 

FOLLOWING THE CLOSING.

9.13 Survival. Each and every representation and warranty contained in this Agreement shall 

expire and be of no further force and effect as of the Closing. Each and every covenant and agreement 

contained in this Agreement (other than the covenants contained in this Agreement which by their terms 

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#4839-7420-7369v7 48

are to be performed (in whole or in part) by the Parties following the Closing (each, a “Post-Closing 

Covenant”)) shall expire and be of no further force and effect as of the Closing. Each Post-Closing Covenant 

shall survive the Closing until the earlier of (a) performance of such Post-Closing Covenant in accordance 

with this Agreement or, (b) (i) if time for performance of such Post-Closing Covenant is specified in this 

Agreement, sixty (60) days following the expiration of the time period for such performance or (ii) if time 

for performance of such Post-Closing Covenant is not specified in this Agreement, the expiration of the 

applicable statute of limitations with respect to any claim for any failure to perform such Post-Closing 

Covenant; provided that if a written notice of any claim with respect to any Post-Closing Covenant is given 

prior to the expiration thereof then such Post-Closing Covenant shall survive until, but only for purposes 

of, the resolution of such claim by final, non-appealable judgment or settlement.

9.14 Computation of Time. In computing any period of time prescribed by or allowed with 

respect to any provision of this Agreement that relates to Sellers or the Chapter 11 Cases, the provisions of 

rule 9006(a) of the Federal Rules of Bankruptcy Procedure shall apply.

9.15 Time of Essence. Time is of the essence of this Agreement.

9.16 Non-Recourse. No past, present or future director, manager, officer, employee, 

incorporator, member, partner or equity holder of any Seller shall have any Liability for any Liabilities of 

such Seller under this Agreement or for any Claim based on, in respect of, or by reason of the Transactions.

9.17 Disclosure Schedules. Except as set forth in this Agreement, the inclusion of any 

information (including dollar amounts) in Disclosure Schedules shall not be deemed to be an admission or 

acknowledgment by any Party that such information is required to be listed on such section of the relevant 

schedule or is material to or outside the Ordinary Course of Business of any Person. The information 

contained in this Agreement, the exhibits hereto and the Disclosure Schedules is disclosed solely for 

purposes of this Agreement, and no information contained herein or therein shall be deemed to be an 

admission by any Party to any third party of any matter whatsoever (including any violation of any Law or 

breach of contract). Unless the context otherwise requires, all capitalized terms used in the Disclosure 

Schedules shall have the respective meanings assigned in this Agreement. The Disclosure Schedules set 

forth items of disclosure with specific reference to the particular Section or subsection of this Agreement 

to which the information in the Disclosure Schedules relates; provided, however, that any information set 

forth in one Section of the Disclosure Schedules will be deemed to apply to each other section or 

subsection thereof to which its relevance is reasonably apparent on its face.

9.18 Sellers’ Representative; Dealings Among Sellers. By its execution and delivery of this 

Agreement, each Seller hereby irrevocably constitutes and appoints Gemstone as its true and lawful agent 

and attorney-in-fact (the “Sellers’ Representative”), with full power of substitution to act in such Seller’s

name, place and stead with respect to all Transactions and all terms and provisions of this Agreement, and 

to act on such Seller’s behalf in any Proceeding, and to do or refrain from doing all such further acts and 

things, and execute all such documents as Sellers’ Representative shall deem necessary or appropriate in 

connection with the Transactions. The appointment of Sellers’ Representative shall be deemed coupled 

with an interest and shall be irrevocable, and Buyer, its Affiliates and any other Person may conclusively 

and absolutely rely, without inquiry, upon any action of Sellers’ Representative on behalf of Sellers in all 

matters referred to herein or contemplated hereby including any direction regarding the amount of any 

payment to any Seller. Buyer shall have no obligation of any nature whatsoever for determining any 

allocation of any payments among Sellers. Without limiting the generality of the foregoing, absent specific 

direction by Sellers’ Representative, Buyer shall be deemed to have fulfilled its obligations hereunder 

absolutely with respect to any amounts payable by it under or pursuant to this Agreement or the delivery of 

any instruments if Buyer shall pay any such amounts or deliver such instruments to Sellers’ Representative. 

All Notices delivered by Buyer (whether prior to or following the Closing) to Sellers’ Representative 

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#4839-7420-7369v7 49

(whether pursuant hereto or otherwise) for the benefit of Sellers shall constitute valid and timely Notice to 

all of Sellers.

9.19 Mutual Drafting. This Agreement is the result of the joint efforts of Buyer and Sellers, and 

each provision hereof has been subject to the mutual consultation, negotiation and agreement of the Parties 

and there is to be no construction against any Party based on any presumption of that Party’s involvement 

in the drafting thereof.

9.20 Fiduciary Obligations. Nothing in this Agreement, or any document related to the 

Transactions contemplated hereby, without limiting in any way Buyer’s rights and remedies set forth in this 

Agreement, will require any Seller or any of their respective governing bodies, directors, officers or 

members, in each case, in their capacity as such, to take any action, or to refrain from taking any action, to 

the extent inconsistent with their fiduciary obligations. 

[Remainder of Page Intentionally Left Blank]

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#4839-7420-7369v7 [Signature Pages to Asset Purchase Agreement]

IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly 

authorized officers of Sellers and Buyer as of the date first above written.

BUYER:

THE GAP, INC.

By:

Name:

Title:

By:

Name:

Title:

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SELLERS:

GYMBOREE GROUP, INC.

By:

Name:

Title:

GYMBOREE RETAIL STORES, LLC

By:

Name:

Title:

GYM-CARD, LLC

By:

Name:

Title:

GYMBOREE MANUFACTURING, INC.

By:

Name:

Title:

GYMBOREE DISTRIBUTION, INC.

By:

Name:

Title:

GYMBOREE OPERATIONS, INC.

By:

Name:

Title:

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#4839-7420-7369v7 [Signature Pages to Asset Purchase Agreement]

GYMBOREE ISLAND, LLC

By:

Name:

Title:

GYM-MARK, INC.

By:

Name:

Title:

GYMBOREE WHOLESALE, INC.

By:

Name:

Title:

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Exhibit B

JJ Inventory Purchase Agreement

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Execution Draft

4137-9846-7354.4

ASSET PURCHASE AGREEMENT AND BILL OF SALE

This Asset Purchase Agreement and Bill of Sale (this “Agreement”) is made and entered into as of 

March 1, 2019 by and among Gymboree Group, Inc., a Delaware corporation (“Gymboree”) and The Gap, 

Inc., a Delaware corporation (“Buyer”) and, solely with respect to Sections 1 and 2(b) hereof, GA Retail, 

Inc., Tiger Capital Group, LLC, Gordon Brothers Retail Partners, LLC, and Hilco Merchant Resources, 

LLC (collectively, “Agent”). Capitalized terms used but not defined herein have the meanings set forth in 

that certain Agency Agreement dated as of January 17, 2019 (the “Agency Agreement”) by and among 

Gymboree and Agent. The parties hereto agree as follows:

1. Agency Agreement.

(a) The Agency Agreement is hereby amended to permit the exercise of the J&J 

Option through and including the date hereof and to extend the J&J Option Period to the Closing Date (as 

defined below). This Agreement shall serve as an Option Notice setting the Closing Date as the J&J Option 

Effective Date.

(b) Notwithstanding Section 16.12(b) of the Agency Agreement, Agent shall be 

entitled to conduct the Sale at the J&J Stores as a “going out of business”, “store closing” or “everything 

must go” sale. Upon receipt of the J&J Option Payment (as amended hereunder), Agent and Gymboree 

shall immediately discontinue the Sale at the J&J Stores and the sale of any Janie and Jack Merchandise on 

the Ecommerce Platform and shall remove or cause to be removed all sale signage and advertising relating 

to the Assets.

(c) The Agent agrees that upon the receipt of the J&J Option Payment, any rights, 

claims, or interests the Agent had in the Assets (as defined below) shall be extinguished and released.

(d) The amount of the J&J Option Payment provided in Section 16.12(d) shall be 

amended and increased by $650,000 in the aggregate. 

(e) Effective upon receipt of the J&J Option Payment, Section 3.1(a) of the Agency 

Agreement shall be deemed to be amended to provide that the Guaranty Percentage shall be reduced to 

79.0% of the aggregate Cost Value of the Merchandise and the Guaranteed Amount shall be calculated 

excluding Janie and Jack Merchandise, Exhibit 3.1(b)(1) shall be effective rather than Exhibit 3.1(b) and 

Exhibit 3.1(c)(1) shall be effective rather than Exhibit 3.1(c). 

2. Purchase and Sale of Assets. 

(a) For good and valuable consideration of the Purchase Price (as defined below) and 

the assumption of the Assumed Liabilities (as defined below), the receipt and adequacy of which Gymboree 

hereby acknowledges, as of the Closing, Gymboree hereby irrevocably sells, assigns, transfers, conveys, 

grants, bargains and delivers to Buyer (or one or more persons, including any affiliates of Buyer, as 

designated by Buyer in writing to Gymboree prior to the Closing), all of its right, title and interest in and to 

all inventory and FF&E related to the Janie and Jack brand of Gymboree (and any goodwill related thereto), 

including (i) the remaining Janie and Jack Merchandise and any Additional Agent Merchandise purchased 

for the J&J Stores and (ii) any other assets that were subject to the option set forth in Section 16.12 of the 

Agency Agreement (collectively, the “Assets”). 

(b) The purchase price for the Assets shall equal (i) the Cost Value of the Assets that 

are Merchandise, plus (ii) the actual cost (with no profit or lift) of the Assets that are Additional Agent 

Merchandise, plus (iii) $10,000,000 (the “Purchase Price”). On the Closing Date, Buyer shall pay the 

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Purchase Price by wire transfer of immediately available funds to the accounts set forth in payment 

instructions from Gymboree that shall provide for the J&J Option Payment to be received by the Agent and 

the remainder of the Purchase Price to be received by Gymboree. Gymboree shall indemnify and hold 

harmless Buyer for any liabilities incurred by Buyer resulting from the misallocation of the Purchase Price 

among each Agent entity or between Agent and Gymboree. In the event there is any reconciliation required 

of the J&J Option Payment any adjustment of such amount shall be paid by Gymboree to the Agent or the 

Agent to Gymboree, as applicable.

(c) Buyer hereby assumes, and Gymboree hereby assigns to Buyer, all obligations or 

liabilities of Gymboree directly related to the Assets that arise in, and are solely related to, the post-Closing 

period (the “Assumed Liabilities”). Gymboree shall not be liable for, and as between Buyer and Gymboree, 

Buyer shall be solely liable for and obligated to discharge all Assumed Liabilities. Buyer shall not be liable 

for, and as between Buyer and Gymboree, Gymboree shall be solely liable for and obligated to discharge 

all obligations or liabilities related to the Assets that are not Assumed Liabilities. 

(d) The consummation of the transactions contemplated by this Agreement (the 

“Closing”) shall occur contingent upon, and effective concurrently with, the consummation of the 

transactions contemplated by that certain Asset Purchase Agreement dated on or about the date hereof by 

and among Buyer, Gymboree and certain subsidiaries of Gymboree (or on such other date as the parties 

hereto may mutually agree). The Closing shall be held at the offices of Gymboree, at 10:00 a.m., local time, 

unless the parties hereto otherwise agree. The actual date of the Closing is herein called the “Closing Date”.

3. Representations and Warranties of Gymboree.

(a) Gymboree has good and marketable title to the Assets, free and clear of any 

encumbrances or liens, other than the interests of the Agent and the Debtors’ DIP Lenders, all of which are 

to be released on the Closing Date. 

(b) Subject to entry of an appropriate order by the United States Bankruptcy Court for 

the Eastern District of Virginia, Gymboree has all requisite power and authority to execute and deliver and 

perform its obligations under this Agreement. 

(c) Subject to entry of an appropriate order by the United States Bankruptcy Court for 

the Eastern District of Virginia, the execution and delivery of this Agreement and performance by 

Gymboree of its obligations hereunder, and all transactions contemplated hereby, have been duly and 

validly authorized by all necessary action on the part of Gymboree. Subject to entry of an appropriate order 

by the United States Bankruptcy Court for the Eastern District of Virginia, this Agreement has been duly 

executed and delivered by Gymboree; and this Agreement constitutes, and such agreements and documents 

when executed and delivered will constitute, the valid and binding obligations of Gymboree, enforceable 

in accordance with its respective terms, except as enforcement may be limited by applicable bankruptcy, 

insolvency, reorganization or similar laws from time to time in effect affecting creditor’s rights generally 

and by legal and equitable limitations on the availability of specific remedies.

4. Representations and Warranties of Buyer.

(a) Buyer has all requisite power and authority to execute and deliver and perform its 

obligations under this Agreement.

(b) The execution and delivery of this Agreement and performance by Buyer of its 

obligations hereunder, and all transactions contemplated hereby, have been duly and validly authorized by 

all necessary action on the part of Buyer. This Agreement has been duly executed and delivered by Buyer; 

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and this Agreement constitutes, and such agreements and documents when executed and delivered will 

constitute, the valid and binding obligations of Buyer, enforceable in accordance with their respective terms, 

except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization or similar laws 

from time to time in effect affecting creditor’s rights generally and by legal and equitable limitations on the 

availability of specific remedies.

(c) Buyer acknowledges and agrees that: (i) in making its decision to enter into this 

Agreement and to consummate the transactions contemplated hereby, Buyer has relied solely upon its own 

investigation and the express representations and warranties of Gymboree set forth in Section 3 and the 

Agent set forth in Section 5; and (ii) neither Gymboree, Agent, nor any other person has made any 

representation or warranty as to Gymboree, Agent or this Agreement, except as expressly set forth in 

Section 3 or 5, as applicable.

5. Representations and Warranties of Agent.

(a) Agent has all requisite power and authority to execute and deliver and perform its 

obligations under this Agreement. 

(b) The execution and delivery of this Agreement and performance by Agent of its 

obligations hereunder, and all transactions contemplated hereby, have been duly and validly authorized by 

all necessary action on the part of Agent. This Agreement has been duly executed and delivered by Agent; 

and this Agreement constitutes, and such agreements and documents when executed and delivered will 

constitute, the valid and binding obligations of Agent, enforceable in accordance with its respective terms, 

except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization or similar laws 

from time to time in effect affecting creditor’s rights generally and by legal and equitable limitations on the 

availability of specific remedies.

6. Bankruptcy Court Approval. All obligations of Gymboree and Agent hereunder are 

conditioned on the entry of an order by the United States Bankruptcy Court for the Eastern District of 

Virginia in form reasonably acceptable to Gymboree and Agent authorizing the execution and 

consummation of this Agreement.

7. Disclaimer of Warranties. EXCEPT SOLELY FOR THE REPRESENTATIONS AND 

WARRANTIES SET FORTH IN SECTION 3, GYMBOREE MAKES NO REPRESENTATION OR 

WARRANTY WHATSOEVER WITH RESPECT TO THE ASSETS OR THE ASSUMED LIABILITIES, 

INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR 

A PARTICULAR PURPOSE; (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST 

INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER 

ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR 

OTHERWISE. BY ACCEPTING THIS AGREEMENT, BUYER ACKNOWLEDGES THAT IT HAS 

NOT RELIED ON ANY REPRESENTATION OR WARRANTY MADE BY GYMBOREE OR AGENT, 

OR ANY OTHER PERSON ON GYMBOREE’S OR AGENT’S BEHALF.

8. Further Assurances. The parties hereto agree to execute such further documents and 

instruments and to take such further actions as such other party may reasonably deem necessary or desirable 

in furtherance of the transactions contemplated by this Agreement.

9. Governing Law. This Agreement is governed by, and construed in accordance with, the 

laws of the State of New York, without regard to the conflict of laws provisions thereof to the extent such 

principles or rules would require or permit the application of the laws of any jurisdiction other than those 

of the State of New York.

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10. Expenses. Each of the parties hereto shall pay its own respective costs and expenses 

incurred or to be incurred by it in the negotiation and preparation of this Agreement and carrying out the 

transactions contemplated by this Agreement, including legal fees.

11. Entire Agreement; Amendment. This Agreement, together with all schedule and exhibits 

hereto, constitutes the entire agreement among the parties hereto pertaining to the subject matter hereof and 

supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, 

whether oral or written, of the parties, and there are no representations, warranties or other agreements 

among the parties hereto in connection with the subject matter hereof except as set forth specifically herein 

or contemplated hereby. This Agreement may not be amended nor provisions waived except for by written

instrument signed by all Parties.

12. Notices. All notices and communications provided for pursuant to this Agreement shall be 

in writing and sent by email, by hand, or by Federal Express or other recognized overnight delivery service, 

as follows:

If to Agent: 

GA RETAIL, INC.

21255 Burbank Blvd, Suite 400

Woodland Hills, CA 91367

Attn: Scott K Carpenter

Email: scarpenter@greatamerican.com

HILCO MERCHANT RESOURCES, LLC

5 Revere Drive, Suite 206

Northbrook, IL 60062

Attention: Ian S. Fredericks

Tel: (847) 418-2075

Fax: (847) 897-0859

Email: ifredericks@hilcotrading.com

GORDON BROTHERS RETAIL PARTNERS, LLC

Prudential Tower

800 Boylston Street

Boston, MA 02119

Attn: Mackenzie Shea

Tel: 617.422.6519

Email: mshea@gordonbrothers.com

TIGER CAPITAL GROUP, LLC

350 North LaSalle Street, 11th Floor

Chicago, IL 60654

Attn: Mark P. Naughton

Tel: (312) 894-6081

Fax: (617) 523-3007

Email: mnaughton@tigergroup.com

with a copy (which shall not constitute notice) to:

GREENBERG TRAURIG

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Attn: Jeffrey M. Wolf

One International Place

Suite 2000

Boston, MA 02110

Tel: 617 310 6041

Email: wolfje@gtlaw.com

If to Gymboree:

Gymboree Group, Inc.

71 Stevenson Street, Suite 2200

San Francisco, CA 94105

Attention: Jon W. Kimmins and Kimberly Holtz MacMillan

Email: jon_kimmins@gymboree.com and

 kimberly_macmillan@gymboree.com

With a copy (which shall not constitute notice) to:

Milbank LLP

55 Hudson Yards

New York, NY 10001

Attention: Evan R. Fleck and Scott W. Golenbock

Email: efleck@milbank.com and sgolenbock@milbank.com 

If to Buyer:

The Gap, Inc.

Two Folsom Street

San Francisco, CA 94105

Attention: Julie Gruber

Email: julie_gruber@gap.com

with a copy (which shall not constitute notice) to:

Orrick, Herrington & Sutcliffe, LLP

405 Howard Street

San Francisco, CA 94105-2669

Attention: Brett Cooper

Email: bcooper@orrick.com

13. Counterparts. This Agreement may be executed in counterparts, each of which shall be 

deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed 

copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be 

deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

[Signature Page Follows]

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ASSET PURCHASE AGREEMENT AND BILL OF SALE

IN WITNESS WHEREOF the Parties have duly executed and delivered this Agreement as of the 

date first written above.

BUYER:

THE GAP, INC.

By:

Name:

Title:

By:

Name:

Title:

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ASSET PURCHASE AGREEMENT AND BILL OF SALE

IN WITNESS WHEREOF the Parties have duly executed and delivered this Agreement as of the 

date first written above.

GYMBOREE:

GYMBOREE GROUP, INC.

By:

Name:

Title:

AGENT:

GA RETAIL, INC.

By:

Name:

Title:

HILCO MERCHANT RESOURCES, LLC

By:

Name:

Title:

GORDON BROTHERS RETAIL PARTNERS, LLC

By:

Name:

Title:

TIGER CAPITAL GROUP, LLC

By:

Name:

Title:

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Exhibit C

Gym/Crazy 8 Asset Purchase Agreement

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27071873.14

EXECUTION VERSION

43470.00001

ASSET PURCHASE AGREEMENT

dated as of March 1, 2019

by and among

TCP Brands, LLC,

as Buyer,

and

GYMBOREE GROUP, INC.

and

ITS SUBSIDIARIES SIGNATORY HERETO,

as Sellers

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TABLE OF CONTENTS

Page

- i -

ARTICLE 1 DEFINITIONS........................................................................................................................1

1.1 Defined Terms ......................................................................................................1

1.2 Interpretation.......................................................................................................14

ARTICLE 2 TRANSFER OF ASSETS AND ASSUMPTION OF LIABILITIES...................................15

2.1 Assets to be Acquired .........................................................................................15

2.2 Excluded Assets..................................................................................................17

2.3 Liabilities to be Assumed by Buyer....................................................................19

2.4 Excluded Liabilities............................................................................................19

2.5 Reserved .............................................................................................................20

2.6 Non-Assignment of Assumed Contracts.............................................................20

2.7 Assumption and Assignment of Executory Contracts ........................................21

ARTICLE 3 CLOSING; PURCHASE PRICE ..........................................................................................21

3.1 Closing; Transfer of Possession; Certain Deliveries ..........................................21

3.2 Consideration......................................................................................................23

3.3 Allocation of Purchase Price...............................................................................23

ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF SELLERS.............................................24

4.1 Organization .......................................................................................................24

4.2 Due Authorization, Execution and Delivery; Enforceability..............................24

4.3 Governmental Consents......................................................................................24

4.4 No Conflicts........................................................................................................24

4.5 Title to Acquired Assets .....................................................................................25

4.6 Litigation; Orders................................................................................................25

4.7 Reserved .............................................................................................................25

4.8 Reserved .............................................................................................................25

4.9 Taxes...................................................................................................................25

4.10 Compliance with Laws; Permits.........................................................................25

4.11 Contracts.............................................................................................................26

4.12 Insurance Claims.................................................................................................26

4.13 Intellectual Property............................................................................................26

4.14 Anti-Corruption and Sanctions...........................................................................27

4.15 Data Privacy........................................................................................................27

4.16 Gym-IPCO LLC .................................................................................................27

4.17 Exclusive Representations and Warranties.........................................................28

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TABLE OF CONTENTS

(continued)

Page

- ii -

ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF BUYER ................................................28

5.1 Organization .......................................................................................................28

5.2 Due Authorization, Execution and Delivery; Enforceability..............................28

5.3 Governmental Approvals....................................................................................29

5.4 No Conflicts........................................................................................................29

5.5 Availability of Funds and Financial Capability ..................................................29

5.6 Adequate Assurances Regarding Executory Contracts.......................................29

5.7 Condition and Location of Acquired Assets.......................................................29

5.8 Exclusive Representations and Warranties.........................................................29

5.9 No Other Representations or Warranties of Sellers; Disclaimers.......................30

ARTICLE 6 COVENANTS OF THE PARTIES ......................................................................................31

6.1 Conduct of Business Pending the Closing..........................................................31

6.2 Back-Up Bidder..................................................................................................32

6.3 Access.................................................................................................................32

6.4 Public Announcements.......................................................................................32

6.5 Tax Matters.........................................................................................................33

6.6 Approvals; Reasonable Best Efforts; Notification; Consent...............................33

6.7 Reserved .............................................................................................................34

6.8 Further Assurances .............................................................................................34

6.9 Bankruptcy Court Filings....................................................................................35

6.10 Cure Costs...........................................................................................................36

6.11 Preservation of Books and Records....................................................................36

6.12 Bulk Transfer Laws ............................................................................................36

6.13 Transfer of Assets...............................................................................................36

6.14 Payments from Third Parties After Closing........................................................37

6.15 Use of Names......................................................................................................37

6.16 Notification of Certain Matters...........................................................................38

6.17 Confidentiality ....................................................................................................38

6.18 Communication With Other Bidders..................................................................38

6.19 Personally Identifiable Information ....................................................................39

6.20 Customer Data ....................................................................................................39

ARTICLE 7 CONDITIONS TO OBLIGATIONS OF THE PARTIES ....................................................39

7.1 Conditions Precedent to Obligations of Buyer ...................................................39

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TABLE OF CONTENTS

(continued)

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- iii -

7.2 Conditions Precedent to the Obligations of Sellers ............................................40

7.3 Frustration of Conditions Precedent ...................................................................41

ARTICLE 8 TERMINATION...................................................................................................................41

8.1 Termination of Agreement..................................................................................41

8.2 Consequences of Termination ............................................................................42

ARTICLE 9 MISCELLANEOUS .............................................................................................................43

9.1 Expenses.............................................................................................................43

9.2 Assignment .........................................................................................................43

9.3 Parties in Interest ................................................................................................43

9.4 Notices................................................................................................................43

9.5 Choice of Law.....................................................................................................44

9.6 Entire Agreement; Amendments and Waivers ...................................................45

9.7 Counterparts; Facsimile and Electronic Signatures............................................45

9.8 Severability.........................................................................................................45

9.9 Headings.............................................................................................................45

9.10 Exclusive Jurisdiction and Specific Performance...............................................45

9.11 WAIVER OF RIGHT TO TRIAL BY JURY.....................................................46

9.12 Survival...............................................................................................................46

9.13 Computation of Time..........................................................................................46

9.14 Time of Essence..................................................................................................46

9.15 Non-Recourse .....................................................................................................46

9.16 Disclosure Schedules..........................................................................................47

9.17 Sellers’ Representative; Dealings Among Sellers ..............................................47

9.18 Mutual Drafting ..................................................................................................47

9.19 Fiduciary Obligations .........................................................................................47

9.20 Releases ..............................................................................................................47

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ASSET PURCHASE AGREEMENT

ASSET PURCHASE AGREEMENT, dated as of March 1, 2019 (the “Agreement Date”), by and 

among Gymboree Group, Inc., a Delaware corporation (“Gemstone”), and each of Gemstone’s 

Subsidiaries listed on the signature page hereto (together with Gemstone, “Sellers” and each, a “Seller”), 

and TCP Brands, LLC, a Delaware limited liability company (“Buyer”). Each Seller and Buyer are 

referred to herein individually as a “Party” and collectively as the “Parties”.

WITNESSETH:

WHEREAS, Sellers are currently engaged in the Business;

WHEREAS, on January 17, 2019 (the “Petition Date”), each of Gymboree Group, Inc., 

Gymboree Intermediate Corporation, Gymboree Holding Corporation, Gymboree Wholesale, Inc., GymMark, Inc., Gymboree Operations, Inc., Gymboree Distribution, Inc., Gymboree Manufacturing, Inc., 

Gymboree Retail Stores, LLC, Gym-Card, LLC, and Gymboree Island, LLC (each a “Debtor” and 

collectively, the “Debtors”) filed a voluntary petition and commenced a case (collectively, the 

“Chapter 11 Cases”) under chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”) in 

the Bankruptcy Court;

WHEREAS, on the terms and subject to the conditions set forth herein and subject to the 

approval of the Bankruptcy Court, (a) Sellers wish to sell to Buyer, and Buyer wishes to purchase from 

Sellers, the Acquired Assets as of the Closing, and (b) Buyer is willing to assume from Sellers the 

Assumed Liabilities as of the Closing; and

WHEREAS, prior to the execution and delivery of this Agreement, Buyer deposited into an 

account of Sellers an amount equal to $210,000 and, on or prior to March 4, 2019, Buyer shall deposit an 

incremental deposit amount so that the aggregate amount deposited is equal to $7,600,000 (the “Deposit”) 

in accordance with the Bidding Procedures.

NOW, THEREFORE, in consideration of the representations, warranties, covenants and 

agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of 

which are hereby acknowledged, and intending to be legally bound hereby, the Parties hereto agree as 

follows:

ARTICLE 1

DEFINITIONS

1.1 Defined Terms. As used herein, the terms below shall have the following 

respective meanings:

“Acquired Assets” shall have the meaning specified in Section 2.1.

“Acquired Business Information” shall mean all books, financial information, records, files, 

ledgers, documentation, instruments, research, papers, data, marketing materials and information, sales or 

technical literature or similar information that, in each case, is in the possession or control of any Seller 

and, in each case, is primarily or exclusively related to the Acquired Assets, including, for the avoidance 

of doubt, files and assignment documentation pertaining to existence, availability, registrability or 

ownership of any of the Transferred Intellectual Property and documentation of the development, 

conception or reduction to practice thereof.

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“Affiliate” shall, with respect to any Person, mean any other Person that directly, or indirectly 

through one or more intermediaries, controls, or is controlled by, or is under common control with, the 

Person specified, where “control” means the possession, directly or indirectly, of the power to direct or 

cause the direction of the management policies of a Person, through ownership of voting securities or 

rights, by contract, as trustee, executor or otherwise.

“Agreement” shall mean this Asset Purchase Agreement, together with the exhibits and the 

Disclosure Schedules, in each case as amended, restated, supplemented or otherwise modified from time 

to time.

“Agreement Date” shall have the meaning specified in the preamble.

“Allocation” shall have the meaning specified in Section 3.3.

“Alternative Transaction” shall mean (i) any investment in, financing of, capital contribution or 

loan to, or restructuring or recapitalization of a Seller or any Affiliate of a Seller (including any exchange 

of all or a substantial portion of a Seller’s or its Affiliates’ outstanding debt obligations for equity 

securities of one or more Sellers or their respective Affiliates), (ii) any merger, consolidation, share 

exchange or other similar transaction to which a Seller or any of its Affiliates is a party that has the effect 

of transferring, directly or indirectly, all or a substantial portion of the assets of, or any issuance, sale or 

transfer of equity interests in, a Seller, the Acquired Assets or the Business, (iii) any direct or indirect sale 

of all or a substantial portion of the assets of, or any issuance, sale or transfer of equity interests in, a 

Seller, the Acquired Assets or the Business or (iv) any other transaction, including a plan of liquidation or 

reorganization (in any jurisdiction, whether domestic, foreign, international or otherwise), in each 

instance (A) that transfers or vests ownership of, economic rights to, or benefits in all or a substantial 

portion of the Acquired Assets or the Business to any party other than Buyer and (B) whether or not such 

transactions are entered into in connection with any bankruptcy, insolvency or similar Proceedings; 

provided, however, that notwithstanding the foregoing, any investment in, financing of, capital 

contribution or loan to, or any sale of assets of, a Seller or any Affiliate of a Seller that would not 

reasonably be expected to, individually or in the aggregate, interfere with or impede the Transactions, 

interfere with, limit or modify any of Buyer’s rights or privileges hereunder or result in the imposition of 

any liabilities or costs on Buyer or any of its Affiliates shall not be considered an “Alternative 

Transaction”.

“Anti-Corruption Laws” shall mean applicable laws enacted to prohibit bribery and corruption, 

including the U.S. Foreign Corrupt Practices Act of 1977 (as amended), the UK Bribery Act 2010, and 

applicable laws enacted to implement the OECD Convention on Combating Bribery of Foreign Officials 

in International Business Transactions.

“Anti-Corruption Prohibited Activity” shall mean (a) using funds in violation of Anti-Corruption 

Laws for unlawful contributions, gifts, or entertainment, or other unlawful expenses relating to political 

activity, or (b) making or taking an act in furtherance of an offer, promise, or authorization of any bribe, 

rebate, payoff, influence payment, kickback or other similar payment, whether directly or indirectly to 

any Governmental Entity or to any private commercial entity for the purpose of either gaining an 

improper business advantage or encouraging the recipient to violate the policies of his or her employer or 

to breach an obligation of good faith or loyalty in violation of Anti-Corruption Laws.

“Anti-Money Laundering Laws” shall mean applicable laws relating to money laundering and 

terrorism financing, including the USA PATRIOT Act of 2001, the U.S. Money Laundering Control Act 

of 1986, as amended; the applicable financial recordkeeping and reporting requirements of the U.S. 

Currency and Foreign Transaction Reporting Act of 1970, as amended; the EU Anti-Money Laundering 

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Directives and any laws, decrees, administrative orders, circulars, or instructions implementing or 

interpreting the same; and other similar applicable laws and regulations.

“Approved Budget” shall have the meaning specified in the DIP Facility.

“Assignment and Assumption Agreement” shall mean one or more assignment and assumption 

agreements to be entered into by Sellers and Buyer concurrently with the Closing in a form mutually 

agreed to by the Parties.

“Assumed Contracts” shall have the meaning specified in Section 2.1(d).

“Assumed Liabilities” shall have the meaning specified in Section 2.3.

“Auction” shall have the meaning specified in the Bidding Procedures.

“Avoidance Actions” shall mean any and all claims for relief of any Seller under chapter 5 of the 

Bankruptcy Code.

“Back-Up Bidder” shall have the meaning specified in Section 6.2.

“Bankruptcy Code” shall have the meaning specified in the recitals.

“Bankruptcy Court” shall mean the United States Bankruptcy Court for the Eastern District of 

Virginia (Richmond Division).

“Bankruptcy Rules” shall mean the Federal Rules of Bankruptcy Procedure as promulgated by 

the United States Supreme Court under section 2075 of title 28 of the United States Code, 28 U.S.C. 

§ 2075, as applicable to the Chapter 11 Cases, and the general, local and chambers rules of the 

Bankruptcy Court.

“Base Purchase Price” shall have the meaning specified in Section 3.2(a).

“Benefit Plan” shall mean any employee benefit plan (as defined in Section 3(3) of ERISA) or 

any deferred compensation, bonus, pension, retirement, profit sharing, savings, incentive compensation, 

stock purchase, stock option or other equity or equity-linked compensation, disability, death benefit, 

hospitalization, medical, dental, life, employment, retention, change in control, termination, severance, 

separation, vacation, sick leave, holiday pay, paid time off, leave of absence, fringe benefit, 

compensation, incentive, insurance, welfare or any similar plan, program, policy, practice, agreement or 

arrangement (including any funding mechanism therefor), written or oral, whether or not subject to 

ERISA, and whether funded or unfunded, in each case that is adopted, sponsored, maintained, entered 

into, contributed to, or required to be maintained or contributed to, by any Seller or any Subsidiary of any 

Seller for the benefit of any Employee, or pursuant to or in connection with which any Seller or any 

Subsidiary of any Seller could have any Liabilities in respect of any Employee or beneficiary of any 

Employee.

“Bidding Procedures” shall mean the bid procedures approved by the Bankruptcy Court pursuant 

to the Bidding Procedures Order.

“Bidding Procedures Order” shall mean the Order of the Bankruptcy Court entered on January 

17, 2019 [Docket 76] approving procedures for submitting bids and conducting an auction for the sale of 

the Acquired Assets (among other things).

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“Business” shall mean (i) the Coral E-Commerce Business, (ii) the Gemstone E-Commerce 

Business and the (iii) Gemstone and Coral Brick and Mortar Business; provided that, in each case, if the 

context expressly refers to the conduct of the Business following the Closing, then the “Business” shall 

refer to any such business as conducted by Buyer and its Affiliates following the Closing.

“Business Day” shall mean any day other than a Saturday, Sunday or a legal holiday on which 

banking institutions in the State of New York are not required to open.

“Buyer” shall have the meaning specified in the preamble.

“Buyer Material Adverse Effect” shall mean a material adverse effect on the ability of Buyer to 

consummate the Transactions.

“Buyer Released Parties” shall have the meaning specified in Section 9.20.

“Chapter 11 Cases” shall have the meaning specified in the recitals.

“Claim” shall mean all actions, claims, counterclaims, suits, proceedings, rights of action, causes 

of action, Liabilities, losses, damages, remedies, penalties, judgments, settlements, costs, expenses, fines, 

disbursements, demands, reasonable costs, fees and expenses of counsel, including in respect of 

investigation, interest, demands and actions of any nature or any kind whatsoever, known or unknown, 

disclosed or undisclosed, accrued or unaccrued, matured or unmatured, choate or inchoate, legal or 

equitable, and arising in tort, contract or otherwise, including any “claim” as defined in the Bankruptcy 

Code.

“Closing” shall have the meaning specified in Section 3.1(a).

“Closing Date” shall have the meaning specified in Section 3.1(a).

“Code” shall mean the Internal Revenue Code of 1986, as amended.

“Contract” shall mean any contract, agreement, indenture, note, bond, loan, instrument, lease, 

conditional sales contract, purchase order, mortgage, license, franchise, insurance policy, letter of credit, 

commitment or other binding arrangement or commitment, whether or not in written form, that is binding 

upon a Person or any of its property.

“Coral Acquired Assets” shall mean the Acquired Assets that were used primarily in connection 

with the portion(s) of the Business that is (are) associated with the “Crazy 8®” brand name.

“Coral E-Commerce Business” shall mean Sellers’ business of (i) owning, exploiting, and 

licensing the brand name “Crazy 8®” (and certain other Trademarks that are not included in the 

Transferred Intellectual Property) and (ii) distributing and selling children’s clothing and apparel under 

the brand name “Crazy 8®” through a series of software and hardware applications including computer 

hardware and cloud servers, that are integrated into, and through which Sellers sell inventory to 

consumers who place orders for such inventory through, the www.Crazy8.com (and similar permutations 

thereof) website but excluding the Contracts pursuant to which such software and hardware applications 

are owned or licensed by Sellers.

“Credit Agreement” shall mean that certain Credit Agreement, dated as of September 29, 2017, 

by and among Gemstone, as lead borrower, Gymboree Intermediate Corporation, as a guarantor, 

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Goldman Sachs Specialty Lending Group, Inc., in its capacity as Administrative Agent, and the lenders 

and other parties party thereto.

“Cure Costs” shall mean all cure costs that must be paid pursuant to section 365 of the 

Bankruptcy Code in connection with the assumption and assignment of the Assumed Contracts as finally 

determined by the Bankruptcy Court.

“Customer Data” shall have the meaning specified in Section 2.1(f).

“Debtors” shall have the meaning specified in the recitals.

“Deposit” shall have the meaning specified in the recitals.

“Designated Purchaser” shall have the meaning specified in Section 2.1.

“DIP Facility” shall mean that certain Superpriority Secured Debtor-in-Possession Credit 

Agreement, dated as of January 18, 2019, by and among Gemstone, the other Borrowers (as defined 

therein) party thereto from time to time, Gymboree Intermediate Corporation, a Delaware corporation, the 

other Guarantors (as defined therein) party thereto from time to time, each a debtor and debtor-inpossession in cases pending under chapter 11 of the Bankruptcy Code, the Lenders (as defined therein) 

and Special Situations Investing Group, Inc., a Delaware corporation, as Administrative Agent and 

Collateral Agent.

“Disclosure Schedules” shall mean the disclosure schedules, delivered by Sellers and Buyer 

concurrently with the execution and delivery of this Agreement, as amended from time to time in 

accordance with and subject to the terms hereof.

“Domain License Expiration Date” shall have the meaning specified in Section 6.20(a).

“Domain Name Assignment Agreement” shall mean one or more domain name assignment

agreements to be entered into by Sellers and Buyer concurrently with the Closing (or, solely with respect 

to the Specified Domain Names, the Subsequent Closing) in a form mutually agreed to by the Parties.

“E-Commerce Platform” shall mean the series of software and hardware applications including 

computer hardware and cloud servers, that are integrated into, and through which Sellers sell inventory to 

consumers who place orders for such inventory through, the www.Crazy8.com and www.Gymboree.com 

(and similar permutations thereof) websites, including the Contracts pursuant to which such software and 

hardware applications are owned or licensed by Sellers.

“Environmental Laws” shall mean all Laws relating to pollution, storage, transport, release of, 

contamination by, or exposure to Hazardous Materials, or protection of the environment, natural 

resources, human safety, or human health (to the extent related to exposure to Hazardous Materials).

“Equipment” shall have the meaning specified in Section 2.2(t).

“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended.

“Excluded Assets” shall have the meaning specified in Section 2.2.

“Excluded Contracts” shall mean all Contracts other than Assumed Contracts.

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“Excluded Information” shall mean (i) any personnel records, books, files or other documentation 

relating to any employees; (ii) any Tax records, (iii) any books, records, files, ledgers, documentation or 

similar information that any Seller is required by Law (including Laws relating to privilege or privacy) or 

by any Contract to retain and/or not to disclose; provided that to the extent any such information 

described in this clause (iii) relates to the Acquired Assets, Sellers will disclose the existence of such 

confidential information and the applicable contract or agreement to which it relates and Sellers will use 

their respective commercially reasonable efforts to seek waivers from the relevant third party in order to 

provide Buyer such information and (iv) all records and reports prepared by or for any Seller or its 

Affiliates or Representatives in connection with the sale of Sellers, any of their Affiliates or any of their 

respective businesses or any portion thereof (including the Business), including all analyses relating 

thereto so prepared or received, all confidentiality agreements with prospective purchasers thereof and all 

bids and expressions of interest received from third parties with respect thereto; provided that this clause 

(iv) will not exclude any diligence information regarding the Acquired Assets, the Assumed Liabilities or 

the Business that was provided or made available to other bidders or potential bidders in connection with 

the Auction process.

“Excluded Liabilities” shall have the meaning specified in Section 2.4.

“Export Control and Customs Laws” shall mean applicable export control laws and regulations, 

including the EC Regulation 428/2009 and the implementing laws and regulations of the EU member 

states; the U.S. Export Administration Act, U.S. Export Administration Regulations, U.S. Arms Export 

Control Act, U.S. International Traffic in Arms Regulations, and their respective implementing rules and 

regulations; the U.K. Export Control Act 2002 (as amended and extended by the Export Control Order 

2008); and all import laws administered by all applicable Governmental Entities, including the Tariff Act 

of 1930, as amended, the Trade Act of 1974, the Trade Expansion Act of 1962, and other Laws and 

programs administered or enforced by the U.S. Department of Commerce, U.S. International Trade 

Commission, U.S. Customs and Border Protection, and U.S. Immigration and Customs Enforcement and 

their predecessor agencies.

“Facilities” shall mean all buildings and fixtures owned or leased by Sellers, located on the 

Leased Real Property and Relating to the Business, but excluding for the avoidance of doubt (i) power 

lines, pipelines, telephone lines and other improvements and fixtures owned by public utilities furnishing 

utilities to the Leased Real Property, and (ii) rail lines, pipelines and other improvements and fixtures 

owned by third parties and located on existing easements for such purpose which encumber the Leased 

Real Property.

“Fraud” shall mean, with respect to any Party, an actual and intentional fraud by such Party with 

respect to the making of any representation or warranty by such Party set forth in this Agreement or in 

any other Transaction Document.

“GAAP” shall mean generally accepted accounting principles as in effect from time to time in the 

United States.

“Gemstone” shall have the meaning specified in the preamble.

“Gemstone Acquired Assets” shall mean the Acquired Assets that were used primarily in 

connection with the portion(s) of the Business that is (are) associated with the “Gymboree®” brand name.

“Gemstone and Coral Brick and Mortar Business” shall mean Sellers’ business of operating 

brick-and-mortar retail stores under the “Gymboree®” and “Crazy 8®” brand names and selling 

children’s clothing and apparel under the “Gymboree®” and “Crazy 8®” brand names or related 

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Trademarks included in the Transferred Trademarks at such retail store locations, including the Inventory 

in Sellers’ distribution center(s) that has been purchased for use in such retail stores.

“Gemstone E-Commerce Business” shall mean Sellers’ businesses of (i) owning, exploiting, and 

licensing the brand name “Gymboree®” (and certain other Trademarks included in the Transferred 

Intellectual Property, including under the Assumed Contracts) and (ii) distributing and selling children’s 

clothing and apparel under the brand name “Gymboree®” through the E-Commerce Platform; provided 

that, in each case, if the context expressly refers to the conduct of the Gemstone E-Commerce Business 

following the Closing, then the “Gemstone E-Commerce Business” shall refer to such business as 

conducted by Buyer and its Affiliates following the Closing.

“Governmental Entity” shall mean any federal, state, provincial, local, municipal, foreign, 

multinational, international or other (a) government, (b) governmental or quasi-governmental authority of 

any nature (including any governmental agency, branch, department, official, or entity and any court or 

other tribunal), or (c) body exercising, or entitled to exercise, any administrative, executive, judicial, 

legislative, police, regulatory, or taxing authority or power of any nature, including any arbitration 

tribunal or stock exchange.

“Gym-IPCO” shall mean Gym-IPCO, LLC, a Delaware limited liability company.

“Gym-IPCO Interests” shall mean 50% of the limited liability company interests of Gym-IPCO.

“Gym-IPCO LLC Agreement” shall mean that certain Limited Liability Company Agreement of 

Gym-IPCO, dated as of July 15, 2016.

“Hazardous Material” shall mean any material, substance or waste defined, listed or regulated as 

a “contaminant” or “pollutant” or as “hazardous” or “toxic” (or words of similar meaning or intent) under 

any applicable Environmental Law, including materials exhibiting the characteristics of ignitability, 

corrosivity, reactivity or toxicity, as such terms are defined in connection with hazardous materials, 

hazardous wastes or hazardous or toxic substances in any applicable Environmental Law and including 

asbestos, petroleum and petroleum breakdown constituents and polychlorinated biphenyls.

“HSR Act” shall mean the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, 

and any successor law and the rules and regulations thereunder or under any successor law.

“Intellectual Property” shall mean any and all worldwide rights in and to all intellectual property 

rights or assets (whether arising under statutory or common law, contract or otherwise), which include all 

of the following items: (i) inventions, discoveries, processes, designs, tools, molds, techniques, 

developments and related improvements whether or not patentable; (ii) patents, patent applications, 

industrial design registrations and applications therefor, divisions, divisionals, continuations, 

continuations-in-part, reissues, substitutes, renewals, registrations, confirmations, re-examinations, 

extensions and any provisional applications, requests for continuing examinations or continuing 

prosecution applications, or any such patents or patent applications, and any foreign or international 

equivalent of any of the foregoing; (iii) trademarks (whether registered, unregistered or pending), 

historical trademark files, trade dress, service marks, service names, trade names, brand names, product 

names, logos, distinguishing guises and indicia, domain names, internet rights (including IP Addresses 

and AS numbers), social media addresses and accounts, corporate names, fictitious names, other names, 

symbols (including business symbols), slogans, translations of any of the foregoing and any foreign or 

international equivalent of any of the foregoing and all goodwill associated therewith and (to the extent 

transferable by Law) any applications and/or registrations in connection with the foregoing and all 

advertising and marketing collateral including any of the foregoing (“Trademarks”); (iv) work 

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specifications, tech specifications, databases and artwork; (v) technical scientific and other know-how and 

information (including promotional material), trade secrets, confidential information, methods, processes, 

practices, formulas, designs, design rights, patterns, assembly procedures, and specifications; 

(vi) drawings, prototypes, molds, models, tech packs, artwork, archival materials and advertising 

materials, copy, commercials, images, artwork and samples; (vii) rights associated with works of 

authorship including copyrights, moral rights, design rights, rights in databases, copyright applications, 

copyright registrations, rights existing under any copyright laws and rights to prepare derivative works; 

(viii) work for hire; (ix) all tangible embodiments of, and all intangible rights in, the foregoing; (x) the 

right to sue for infringement and other remedies against infringement of any of the foregoing, including 

the right to sue and collect for past infringement; and (xi) rights to protection of interests in the foregoing 

under the laws of all jurisdictions.

“Interim Period” shall have the meaning specified in Section 6.1.

“Inventory” shall mean any inventories of finished goods, children’s clothing and apparel and 

packaging and supplies.

“Jewel Brick and Mortar Business” shall mean Sellers’ business of operating brick-and-mortar 

retail stores under the “Janie and Jack®” brand name and selling children’s clothing and apparel under the 

“Janie and Jack®” brand name or related Trademarks included in the Transferred Trademarks at such 

retail store locations.

“Jewel Business” shall mean the “Janie and Jack®” business as conducted as of the Agreement 

Date, including (i) the Jewel E-Commerce Business, (ii) the Jewel Brick and Mortar Business and 

(iii) designing, sourcing, importing, marketing, advertising, promoting, distributing and selling children’s 

clothing and apparel under the brand name “Janie and Jack®” through distribution and sales to domestic 

and international customers and distributors and through the Jewel Brick and Mortar Business and/or the 

Jewel E-Commerce Business; provided that, in each case, if the context expressly refers to the conduct of 

the Jewel Business following the Closing, then the “Jewel Business” shall refer to such business as 

conducted by Buyer and its Affiliates following the Closing.

“Jewel E-Commerce Business” shall mean Sellers’ businesses of (i) owning, exploiting, and 

licensing the brand name “Janie and Jack®” (and certain other Trademarks included in the Transferred 

Intellectual Property, including under the Assumed Contracts) and (ii) distributing and selling children’s 

clothing and apparel under the brand name “Janie and Jack®” through the E-Commerce Platform; 

provided that, in each case, if the context expressly refers to the conduct of the Jewel E-Commerce 

Business following the Closing, then the “Jewel E-Commerce Business” shall refer to such business as 

conducted by Buyer and its Affiliates following the Closing.

“Knowledge” shall mean, with respect to Sellers, the actual knowledge of the Chief Executive 

Officer, Chief Financial Officer, Chief Technology Officer, Chief Information Officer or General 

Counsel of Gemstone after due inquiry.

“Law” shall mean any federal, state, provincial, local, foreign, international or multinational 

constitution, statute, law, ordinance, regulation, rule, code, Order, principle of common law, or decree 

enacted, promulgated, issued, enforced or entered by any Governmental Entity, or court of competent 

jurisdiction, or other requirement or rule of law.

“Leased Real Property” shall have the meaning specified in Section 2.2(s).

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“Liabilities” shall mean, as to any Person, all debts, adverse Claims, liabilities, commitments, 

responsibilities, and obligations of any kind or nature whatsoever, direct or indirect, absolute or 

contingent, whether accrued or unaccrued, vested or otherwise, liquidated or unliquidated, whether known 

or unknown, and whether or not actually reflected, or required to be reflected, in such Person’s balance 

sheet or other books and records.

“Lien” shall have the meaning specified in section 101(37) of the Bankruptcy Code and shall 

include any pledge, option, charge, lien, debentures, trust deeds, hypothecation, easement, security 

interest, right-of-way, encroachment, mortgage, deed of trust, defect of title, restriction on transferability, 

restriction on use or other encumbrance, in each case whether imposed by agreement, law, equity or 

otherwise.

“Liquidation Agreement” shall mean that certain Agency Agreement, dated as of January 17, 

2019, by and among Gemstone and its Subsidiaries party thereto, on the one hand, and GA Retail, Inc., 

Tiger Capital Group, LLC, Gordon Brothers Retail Partners, LLC, and Hilco Merchant Resources, LLC 

(collectively, the “Agent”), on the other hand, approved by the Bankruptcy Court.

“Local Bankruptcy Rules” shall mean the Local Bankruptcy Rules for the Eastern District of 

Virginia (Richmond Division) applicable to all cases in such district governed by the Bankruptcy Code.

“Names” shall have the meaning specified in Section 6.15.

“Necessary Consent” shall have the meaning specified in Section 2.6.

“Neutral Accountant” shall mean a national independent accounting firm selected by Buyer and 

reasonably acceptable to Sellers.

“Notices” shall have the meaning specified in Section 9.4.

“Order” shall mean any judgment, order, injunction, writ, ruling, decree, stipulation, 

determination, decision, verdict, or award of any Governmental Entity.

“Ordinary Course of Business” shall mean that an action taken by a Person will be deemed to 

have been taken in the “Ordinary Course of Business” only if that action is taken in the ordinary course of 

business of such Person, consistent with past practices, recognizing that Sellers have filed the Chapter 11 

Cases.

“Outside Back-Up Date” shall mean the date that is sixty (60) days after the date of the Sale 

Hearing (as defined in the Bidding Procedures).

“Outside Transaction Date” shall have the meaning specified in Section 8.1(f).

“Owned Equipment” shall have the meaning specified in Section 2.2(t).

“Party” or “Parties” shall have the meaning specified in the preamble.

“Permits” shall mean permits, licenses, registrations, certificates of occupancy, approvals, 

consents, clearances and other authorizations issued by any Governmental Entity.

“Permitted Liens” shall mean: (a) Liens for Taxes not yet due and payable or which are being 

contested in good faith by appropriate proceedings; (b) statutory liens of landlords, carriers, 

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warehousemen, mechanics, and materialmen on any Acquired Asset incurred in the Ordinary Course of 

Business for sums not yet due; (c) liens or encumbrances that arise solely by reason of acts of Buyer or its 

successors and assigns or otherwise consented to by Buyer in accordance with the terms of this 

Agreement; (d) any Lien granted or incurred in connection with the Sale Order; and (e) any Lien that will 

be removed or released prior to or at the Closing (or, solely with respect to the Specified Domain Names, 

the Subsequent Closing) by operation of the Sale Order or any other Order of the Bankruptcy Court.

“Person” shall mean an individual, a partnership, a joint venture, a corporation, a business trust, a 

limited liability company, a trust, an unincorporated organization, a joint stock company, a labor union, 

an estate, a Governmental Entity or any other entity.

“Personal Information” shall have the meaning specified in Section 4.15.

“Petition Date” shall have the meaning specified in the recitals.

“PII” shall have the meaning specified in Section 6.19.

“Post-Closing Covenant” shall have the meaning specified in Section 9.12.

“Power of Attorney Agreement” shall mean one or more power of attorney agreements to be 

entered into by Sellers concurrently with the Closing in a form mutually agreed to by the Parties.

“PRC Trademark Assignment Agreement” shall mean one or more trademark assignment

agreements for the purposes of recordation with the trademark office of the People’s Republic of China to 

be entered into by Sellers and Buyer concurrently with the Closing in a form mutually agreed to by the 

Parties.

“Proceeding” shall mean any action, arbitration, audit, known investigation (including a notice of 

preliminary investigation or formal investigation), notice of violation, hearing, litigation or suit (whether 

civil, criminal or administrative), other than the Chapter 11 Cases, commenced, brought, conducted or 

heard by or before any Governmental Entity, including but not limited to any and all such actions related 

to restitution or remission in criminal proceedings and civil forfeiture and confiscation proceedings under 

the Law of any jurisdiction.

“Property Taxes” shall mean all Real Property Taxes, personal property Taxes and similar ad 

valorem Taxes.

“Purchase Price” shall have the meaning specified in Section 3.2(a).

“Real Property” shall mean any real estate, land, building, structure, improvement or other real 

property of any kind or nature whatsoever owned, leased or occupied by any Person, and all appurtenant 

and ancillary rights thereto, including easements, covenants, water rights, sewer rights and utility rights.

“Registered IP” shall have the meaning specified in Section 4.13(a).

“Relating to the Business” shall mean used primarily or exclusively in the operation or conduct of

the Business as conducted as of the date hereof.

“Representative” shall mean, with respect to any Person, such Person’s officers, directors, 

managers, employees, agents, representatives and financing sources (including any investment banker, 

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financial advisor, accountant, legal counsel, consultant, other advisor, agent, representative or expert 

retained by or acting on behalf of such Person or its Subsidiaries).

“Restricted Party” shall mean (a) any Person or government that is the subject of Sanctions, (b) 

any Person resident in or organized under the laws of any country or territory that is the subject of 

country- or territory-wide Sanctions (including Cuba, Iran, North Korea, Syria, or the Crimea region) or 

(c) owned or controlled by a Person or Persons described in clause (a) or (b).

“Retained Business” shall mean, collectively, any and all businesses and operations conducted by 

any Seller and/or any of its Affiliates other than the Acquired Assets; provided further that “Retained 

Business” does not include the Transferred Intellectual Property, except to the extent permitted under 

Section 6.15 for the period set forth therein.

“Sale Hearing” shall mean the hearing conducted by the Bankruptcy Court to approve the 

Transactions pursuant to the Sale Order.

“Sale Motion” shall mean the motion of Sellers filed on January 17, 2019 [Docket 76] with the 

Bankruptcy Court seeking entry of the Bidding Procedures Order and Sale Order.

“Sale Order” shall mean an Order of the Bankruptcy Court, in form and substance approved by 

Buyer (such approval not to be unreasonably withheld or conditioned so long as the Order is not 

inconsistent with, and does not limit the rights of Buyer under, this Agreement or the Bidding 

Procedures), pursuant to, inter alia, Sections 105, 363 and 365 of the Bankruptcy Code authorizing and 

approving, inter alia, the sale of the Acquired Assets to Buyer on the terms and conditions set forth 

herein, free and clear of all encumbrances and the assumption by the applicable Seller and assignment to 

Buyer of the Assumed Contracts, and containing a finding that Buyer has acted in “good faith” within the 

meaning of Section 363(m) of the Bankruptcy Code.

“Sanctions” shall mean economic or financial sanctions or trade embargoes imposed, 

administered, or enforced from time to time by (a) the U.S. government (including the U.S. Department 

of State and the Office of Foreign Assets Control of the U.S. Department of the Treasury), (b) the 

United Nations Security Council, (c) the European Union, (d) Her Majesty’s Treasury of the 

United Kingdom, or (e) other relevant sanctions authority with jurisdiction over any Party.

“Seller” or “Sellers” shall have the meaning specified in the preamble.

“Seller Fundamental Representations” shall have the meaning specified in Section7.1(a).

“Sellers Material Adverse Effect” shall mean any change, effect, event, occurrence, circumstance, 

state of facts or development that, individually or in the aggregate (taking into account all other such 

changes, effects, events, occurrences, circumstances, states of facts or developments), (a) has had, or 

would reasonably be expected to have, a material adverse effect on the ability of Sellers to consummate 

the Transactions or (b) has had, or would reasonably be expected to have, a material adverse effect on the 

Business, including the Acquired Assets and the Assumed Liabilities, taken as a whole; provided, 

however, that with respect to clause (b) only, the term “material adverse effect” shall not include any 

change, effect, event, occurrence, circumstance, state of facts or development that, directly or indirectly, 

alone or taken together, arising out of or attributable to: (i) any change generally affecting the 

international, national or regional markets applicable to the Business; (ii) any changes in, or effects 

arising from or relating to, national or international political or social conditions, including the 

engagement by the United States or any other country in hostilities or the escalation thereof, whether or 

not pursuant to the declaration of a national emergency or war, or the occurrence or the escalation of any 

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military, cyber or terrorist attack upon the United States or any other country, or any of its territories, 

possessions, or diplomatic or consular offices or upon any military installation, asset, equipment or 

personnel of the United States; (iii) changes in, or effects arising from or relating to, financial, banking, or 

securities markets (including (A) any disruption of any of the foregoing markets, (B) any change in 

currency exchange rates, (C) any decline or rise in the price of any security, commodity, contract or index 

and (D) any increased cost, or decreased availability, of capital or pricing or terms related to any 

financing for the Transactions contemplated by this Agreement); (iv) changes in Law, GAAP or official 

interpretations of the foregoing; (v) acts of nature, including outbreaks of illness or health emergencies, 

hurricanes, storms, floods, earthquakes and other natural disasters or force majeure events; (vi) the effect 

of any action contemplated by, or failure to take any action prohibited by, this Agreement; (vii) the 

pendency of the Chapter 11 Cases or the financial condition of Sellers; (viii) any failure, in and of itself, 

to achieve any budgets, projections, forecasts, estimates, plans, predictions, performance metrics or 

operating statistics or the inputs into such items (but, for the avoidance of doubt, not the underlying 

causes of any such failure to the extent such underlying cause is not otherwise excluded from the 

definition of Sellers Material Adverse Effect); (ix) changes or effects that arise from any seasonal 

fluctuations in the Business; (x) any matters arising out of the Chapter 11 Cases, including changes 

arising from, or effects of, any motion, application, pleading or Order filed under or in connection with, 

the Chapter 11 Cases and any objections in the Bankruptcy Court to (A) this Agreement and the other 

Transaction Documents and the Transactions contemplated hereby and thereby, (B) the reorganization of 

Sellers and any related plan of reorganization or disclosure statement, (C) the Bidding Procedures or the 

Sale Motion, or (D) the assumption or rejection of any Assumed Contract; (xi) the departure of officers or 

directors of any Seller after the Agreement Date; (xii) the execution and delivery of this Agreement or the 

announcement thereof or consummation of the Transactions or the identity, nature or ownership of Buyer, 

including the impact thereof on the relationships, contractual or otherwise, of the Business with 

employees, customers, lessors, suppliers, vendors or other commercial partners; and (xiii) any action 

taken by any Seller at the request of, or with the consent of, Buyer; which, in the case of any of the 

foregoing clauses (i) through (v) does not disproportionately affect the Business relative to other 

companies that participate in the markets and industries applicable to the Business.

“Sellers Released Parties” shall have the meaning specified in Section 9.20.

“Sellers’ Representative” shall have the meaning specified in Section 9.17.

“Specified Domain Names” means the following internet domain names: www.Crazy8.com and 

www.Gymboree.com. 

“Subsequent Closing” shall have the meaning specified in Section 3.1(a).

“Subsequent Closing Date” shall have the meaning specified in Section 3.1(a).

“Subsidiary” shall mean, with respect to any Person (a) a corporation, a majority of whose capital 

stock with voting power, under ordinary circumstances, to elect directors is at the time, directly or 

indirectly, owned by such Person, by a subsidiary of such Person, or by such Person and one or more 

subsidiaries of such Person, (b) a partnership in which such Person or a subsidiary of such Person is, at 

the date of determination, a general partner of such partnership, or (c) any other Person (other than a 

corporation) in which such Person, a subsidiary of such Person or such Person and one or more 

subsidiaries of such Person, directly or indirectly, at the date of determination thereof, has (i) at least a 

majority ownership interest thereof or (ii) the power to elect or direct the election of a majority of the 

directors or other governing body of such Person.

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“Successful Bidder” shall mean, if an Auction is conducted, the prevailing party with respect to 

the Acquired Assets at the conclusion of such Auction.

“Tax” or “Taxes” shall mean any and all taxes, assessments, levies, duties or other governmental 

charge imposed by any Governmental Entity, including any income, alternative or add-on minimum, 

accumulated earnings, franchise, capital stock, environmental, profits, windfall profits, gross receipts, 

sales, use, value added, transfer, registration, stamp, premium, excise, customs duties, severance, Real 

Property, personal property, ad valorem, occupancy, license, occupation, employment, payroll, social 

security, disability, unemployment, withholding, corporation, inheritance, value added, stamp duty 

reserve, estimated or other tax, assessment, levy, duty (including duties of customs and excise) or other 

governmental charge of any kind whatsoever, including any payments in lieu of taxes or other similar 

payments, chargeable by any Tax Authority together with all penalties, interest and additions thereto, 

whether disputed or not.

“Tax Authority” shall mean any taxing or other authority (whether within or outside the U.S.) 

competent to impose Tax.

“Tax Return” shall mean any and all returns, declarations, reports, documents, Claims for refund, 

or information returns, statements or filings which are supplied or required to be supplied to any Tax 

Authority or any other Person, including any schedule or attachment thereto, and including any 

amendments thereof.

“Termination Date For Use of Name” shall have the meaning specified in Section 6.15.

“Transaction Documents” shall mean this Agreement and any agreement, instrument or other 

document entered into pursuant to the terms hereof, including the Assignment and Assumption 

Agreement, the Domain Name Assignment Agreement, the Worldwide Copyright Assignment 

Agreement, the Worldwide Trademark Assignment Agreement, the U.S. Trademark Assignment 

Agreement, the PRC Trademark Assignment Agreement and the Power of Attorney Agreement.

“Transactions” shall mean the transactions contemplated by this Agreement to be consummated 

at the Closing, including the purchase and sale of the Acquired Assets and the assumption of the Assumed 

Liabilities as provided for in this Agreement.

“Transfer Tax” or “Transfer Taxes” shall mean any sales, use, transfer, conveyance, documentary 

transfer, stamp, recording or other similar Tax imposed upon the sale, transfer or assignment of property 

or any interest therein or the recording thereof, and any penalty, addition to Tax or interest with respect 

thereto, but such term shall not include any Tax on, based upon or measured by, the net income, gains or 

profits from such sale, transfer or assignment of the property or any interest therein.

“Transferable Permits” shall have the meaning specified in Section 2.1(g).

“Transferred Intellectual Property” shall have the meaning specified in Section 2.1(a)(v).

“Transferred Trademarks” shall have the meaning specified in Section 2.1(a)(iv).

“U.S. Trademark Assignment Agreement” shall mean one or more trademark assignment

agreements for the purposes of recordation with the U.S. Patent and Trademark Office to be entered into

by Sellers and Buyer concurrently with the Closing in a form mutually agreed to by the Parties.

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“WARN Act” shall mean the Worker Adjustment and Retraining Notification Act of 1988 and 

any similar Law, including any other Law of any jurisdiction relating to plant closings or mass layoffs.

“Willful Breach” shall mean, with respect to a Party, a willful and deliberate act or a willful and 

deliberate failure to act, in each case that is the consequence of an act or omission by such Party that 

knows that the taking of such action or failure to take such action would or would reasonably be expected 

to cause a material breach of this Agreement.

“Worldwide Copyright Assignment Agreement” shall mean one or more worldwide copyright 

assignment and assumption agreements to be entered into by Sellers and Buyer concurrently with the 

Closing in a form mutually agreed to by the Parties.

“Worldwide Trademark Assignment Agreement” shall mean one or more worldwide trademark 

assignment and assumption agreements to be entered into by Sellers and Buyer concurrently with the 

Closing in a form mutually agreed to by the Parties.

“Zeavion License Agreement” shall mean that certain License and Assignment Agreement, dated 

as of July 15, 2016, by and among Gemstone (as successor-in-interest to The Gymboree Corporation), 

Gym-Mark, Inc. and Zeavion Holding Pte. Ltd.

1.2 Interpretation.

(a) Whenever the words “include,” “includes” or “including” are used in this 

Agreement they shall be deemed to be followed by the words “without limitation.”

(b) Words denoting any gender shall include all genders. Where a word or phrase is 

defined herein, each of its other grammatical forms shall have a corresponding meaning.

(c) A reference to any Party to this Agreement or any other agreement or document 

shall include such Party’s successors and permitted assigns.

(d) A reference to any legislation or to any provision of any legislation shall include 

any modification or re-enactment thereof, any legislative provision substituted therefor and all regulations 

and statutory instruments issued thereunder or pursuant thereto.

(e) All references to “$” and dollars shall be deemed to refer to United States 

currency.

(f) All references to any financial or accounting terms shall be defined in accordance 

with GAAP.

(g) The words “hereof,” “herein” and “hereunder” and words of similar import when 

used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this 

Agreement, and Section, Disclosure Schedule and exhibit references are to this Agreement unless 

otherwise specified. All article, section, paragraph, schedule and exhibit references used in this 

Agreement are to articles, sections and paragraphs of, and schedules and exhibits to, this Agreement 

unless otherwise specified.

(h) The meanings given to terms defined herein shall be equally applicable to both 

singular and plural forms of such terms.

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(i) When calculating the period of time before which, within which or following 

which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in 

calculating such period shall be excluded. If the last day of such period is not a Business Day, the period 

in question shall end on the next succeeding Business Day. All references herein to time are references to 

New York City time, unless otherwise specified herein.

(j) If a word or phrase is defined, its other grammatical forms have a corresponding 

meaning.

(k) A reference to any agreement or document (including a reference to this 

Agreement) is to the agreement or document as amended or supplemented, except to the extent prohibited 

by this Agreement or that other agreement or document.

(l) Exhibits, Schedules and Annexes to this Agreement are hereby incorporated and 

made a part hereof and are an integral part of this Agreement. Any capitalized terms used in any 

Schedule or Exhibit but not otherwise defined therein shall be defined as set forth in this Agreement.

ARTICLE 2

TRANSFER OF ASSETS AND ASSUMPTION OF LIABILITIES

2.1 Assets to be Acquired. Subject to the entry of the Sale Order, and the terms and 

conditions of this Agreement and the Sale Order, at the Closing (or, with respect to the Specified Domain 

Names, at the Subsequent Closing), Sellers shall sell, convey, assign, transfer and deliver to Buyer (or one 

or more Persons (including any Affiliates of Buyer), as designated by Buyer in writing to Gemstone prior 

to the Sale Hearing (each, a “Designated Purchaser”), which such writing shall indicate which Acquired 

Asset shall be purchased, acquired and accepted by each such Person), and Buyer or Designated 

Purchasers, as applicable, shall purchase, acquire and accept, all of the right, title and interest, free and 

clear of all Liens (other than Liens included in the Assumed Liabilities and Permitted Liens or as 

otherwise set forth in the Sale Order), of Sellers in each and all of the Acquired Assets. “Acquired 

Assets” shall mean all properties, assets, interests and rights of every nature, tangible and intangible, of 

Sellers, real, intangible or personal, now existing or hereafter acquired, whether or not reflected on the 

books or financial statements of Sellers as the same shall exist on the Closing Date (or, with respect to the 

Specified Domain Names, on the Subsequent Closing Date), in, to or under the following property and 

assets (other than the Excluded Assets):

(a) subject to Section 6.16:

(i) the copyright registrations set forth in Schedule 2.1(a)(i);

(ii) the internet domain name registrations and social media accounts set 

forth in Schedule 2.1(a)(ii) as well as all content, graphics, literary, audiovisual and artistic works 

displayed on the websites and social media sites and all copyrights and waivers of moral rights therein, 

including the right to sue and collect for past infringement of copyrights;

(iii) [Reserved];

(iv) Sellers’ Trademark applications and registrations worldwide for 

“GYMBOREE” and “CRAZY 8” (for all languages and whether translated, transliterated or phoneticized) 

and any derivation thereof, including the applications and registrations set forth in Schedule 2.1(a)(iv)

(the “Transferred Trademarks”), including the historical trademark files and any common law rights 

available anywhere in the world that are the subject of such applications and registrations, together with 

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all goodwill associated therewith, including the right to sue and collect for past infringement, and all 

common law rights to the trademarks that are the subject of such Transferred Trademarks;

(v) any and all of Sellers’ right, title and interest to the names “Crazy 8” and 

“Gymboree” (for all languages and whether translated, transliterated or phoneticized) and any derivation 

thereof, together with all goodwill associated therewith, including the right to sue and collect for past 

infringement, and all common law rights to such names (the Intellectual Property in clauses (i) through

(v) of this Section 2.1(a), collectively, the “Transferred Intellectual Property”);

(b) all goodwill associated with the Acquired Assets and the Assumed Liabilities 

(excluding, for the avoidance of doubt, any and all goodwill to the extent associated with the Excluded 

Assets or the Excluded Liabilities);

(c) except as set forth in Section2.2(c) and Section2.2(e), and subject to the right of 

Sellers to retain copies (at their expense and subject to Section 6.17 and only to the extent and for the 

purposes expressly set forth in Section 2.2(c) and Section 2.2(e)), all Acquired Business Information in 

the possession or reasonable control of any Seller and whether in hard or electronic format;

(d) those leases and other Contracts (together with all of Sellers’ deposits hereunder) 

entered into by any Seller and relating primarily or exclusively to the Transferred Intellectual Property 

listed on Schedule 2.1(d) (collectively, the “Assumed Contracts”); 

(e) all Claims of any Seller (including for royalties, fees or other income, past, 

present or future infringement, misappropriation or violation of, any of the Transferred Intellectual 

Property) to the extent arising from or relating to or in connection with the Acquired Assets or the 

Assumed Liabilities (regardless of whether or not asserted by any Seller), all of the proceeds from the 

foregoing which are accrued and unpaid as of the Closing (or, with respect to the Specified Domain 

Names, as of the Subsequent Closing), all rights of indemnity, warranty rights, guaranties received from 

vendors, suppliers or manufacturers, rights of contribution, rights to refunds, rights of reimbursement and 

other rights of recovery possessed by any Seller against other Persons and the prosecution files of Sellers 

related thereto, in each case, to the extent related to the Acquired Assets or the Assumed Liabilities 

(regardless of whether such rights are currently exercisable);

(f) all customer data, information, analysis and modelling derived from customer 

purchase and transaction files and branded loyalty promotion programs and other similar information 

related to customer purchases and transactions, including personal information (such as name, address, 

telephone number, e-mail address, website and any other database information), customer consents and 

opt-in/opt-outs, product hierarchy, segmentation (life cycle), customer lifetime value, predictive modeling 

scores and models used, loyalty information and data, private label programs (including credit card) 

information and data, offers, coupons and discount information and data, and customer purchase and 

transaction history at a transaction level (including dollar amounts, dates, and items purchased, but 

excluding from the foregoing any credit card numbers or related customer payment source, social security 

numbers, or other information to the extent prohibited by Law for transfer hereunder) relating to 

customers of, or collected through or used in the operation of (i) the Business, (ii) the E-Commerce 

Platform or any similar e-commerce platform owned, operated or controlled by Sellers, (iii) any catalog 

sales, other online or print mailing or similar distribution channels, (iv) partner e-commerce platforms or 

retail stores, (v) the Gemstone and Coral Brick and Mortar Business or (vi) any customer lists in the 

possession or reasonable control of the Sellers, except with respect to clauses (ii), (iii), (iv) and (vi) of this 

section, those relating primarily or exclusively to the Jewel Business (collectively, the “Customer Data”);

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(g) all Permits relating primarily or exclusively to the Acquired Assets, but only if 

and to the extent that such Permits are transferable by the applicable Seller to Buyer or Designated 

Purchaser, as the case may be, by assignment or otherwise (including upon request or application to a 

Governmental Entity or any third party, or which will pass to Buyer or Designated Purchaser, as the case 

may be, as successor in title to the Acquired Assets by operation of Law) (the “Transferable Permits”); 

(h) deposits and prepaid expenses of any Seller relating to any of the Assumed 

Contracts; and

(i) all of the Sellers’ right, title and interest in and to the Gym-IPCO Interests.

2.2 Excluded Assets. Notwithstanding anything to the contrary in this Agreement, 

the Acquired Assets do not include, and in no event shall Sellers be deemed to sell, transfer, assign, 

convey or deliver and Sellers shall retain, all right, title and interest to, Sellers’ right, title or interest in or 

to any of the following properties, interests, rights and assets of Sellers (collectively, the “Excluded 

Assets”):

(a) each Seller’s rights under this Agreement or any of the other Transaction 

Documents (including the right to receive the Purchase Price);

(b) all of Sellers’ or any of their respective Affiliates’ certificates of incorporation 

and other organizational documents, qualifications to conduct business as a foreign entity, arrangements 

with registered agents relating to foreign qualifications, taxpayer and other identification numbers, seals, 

minute books, stock transfer books, stock certificates and other documents relating to the organization, 

maintenance and existence of any Seller or any of its Affiliates as a corporation, limited liability company 

or other entity;

(c) all books and records related to Taxes paid or payable by any Seller or any of its 

Affiliates; provided that Buyer shall be entitled to copies of Tax Returns in respect of Property Taxes 

relating primarily or exclusively to the Acquired Assets or copies of any portions of such documents 

relating primarily or exclusively to the Acquired Assets;

(d) other than the Gym-IPCO LLC Interests, all shares of capital stock or other 

equity interests of any Seller or any of its Affiliates or securities convertible into or exchangeable or 

exercisable for shares of capital stock or other equity interests of any Seller or any of its Affiliates, 

including the entities listed on Schedule 2.2(d);

(e) any (i) personnel records pertaining to any employees of Sellers or any of their 

respective Affiliates (ii) copies of any book, record, literature, list and any other written or recorded 

information constituting Acquired Business Information that has been provided to Buyer and to which 

Sellers and their respective Affiliates in good faith determine they are reasonably likely to need access for 

bona fide business, tax or legal purposes (iii) Excluded Information or (iv) other books and records, in 

either case, that Sellers and their respective Affiliates are required by Law to retain, including Tax 

Returns, taxpayer and other identification numbers, financial statements and corporate or other entity 

filings; provided that, to the extent permitted by applicable Law, Buyer shall have the right to obtain 

copies of any portions of such retained books and records to the extent that such portions relate to the any 

Acquired Asset or are otherwise necessary for Buyer to comply with applicable Law;

(f) (i) all assets, properties, interests and other rights of every nature in respect of the 

Benefit Plans and any other compensation or benefit plans, programs, arrangements, or agreements of 

Sellers or any of their Subsidiaries, in each case including all associated funding media, assets, reserves, 

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credits and service agreements, and all documents created, filed or maintained in connection therewith, 

together with any applicable insurance policies related thereto, and (ii) all employment, personnel and 

compensation records relating to any current or former employee of any Seller or any Subsidiary of any 

Seller;

(g) all Permits and pending applications therefor to the extent not relating primarily 

or exclusively to the Acquired Assets;

(h) all Claims that Sellers or any of their respective Affiliates may have against any 

third Person with respect to any Excluded Assets or Excluded Liabilities;

(i) all cash and cash equivalents, securities, security entitlements, instruments and 

other investments of Sellers and all bank accounts and security accounts, including any cash collateral 

that is collateralizing any letters of credit;

(j) all Excluded Contracts and all prepaid expenses related thereto;

(k) all insurance policies and rights to proceeds thereof (and Buyer acknowledges 

that, as of the Closing, the Acquired Assets shall cease to be insured by any insurance policies of any 

Seller or any of their Subsidiaries);

(l) all Inventory, including Inventory (i) located at the distribution center or any 

retail store locations or designated for use in the Jewel Brick and Mortar Business or the Gemstone and 

Coral Brick and Mortar Business, and/or (ii) owned by any Seller but remains in the possession or control 

of a third party or which is undelivered or in transit;

(m) any documents and agreements relating to the Chapter 11 Cases or to the sale or 

other disposition of the Business, the Acquired Assets or any other asset of any Seller or any of its 

Affiliates other than those to be delivered to Buyer in accordance with this Agreement;

(n) all prepayments, good faith and other bid deposits submitted by any third party 

under the terms of the Bidding Procedures Order;

(o) all Avoidance Actions and all other avoidance actions, including fraud, selfdealing, fraudulent transfer, or similar claims against any officer or director of any Seller or any of its 

Affiliates; 

(p) any and all of Sellers’ right, title and interest to the name “Janie and Jack” or any 

derivation thereof;

(q) any software and mobile applications (and copyrights therein) and licenses, 

maintenance service agreements, current statements of work and any amendments thereto, 

customizations, custom codes and extensions related thereto (whether done by any Seller or a third party 

on behalf of any Seller) and all master service agreements related to information technology services, in 

each case, used in the operation of the Business;

(r) the E-Commerce Platform, including all information technology hardware, 

software and data collection systems used in connection therewith that are owned, leased or licensed by 

Sellers or any of their Subsidiaries and all copyright rights therein (other than Acquired Assets);

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(s) all right, title and leasehold interest of Sellers in any of Seller’s Real Property, 

together with all right, title and leasehold interest of Sellers in the buildings, structures, fixtures and 

improvements erected thereon, including the Facilities, and all rights, privileges, easements, licenses and 

other appurtenances relating thereto (collectively, the “Leased Real Property”);

(t) all (i) Sellers’ owned equipment, machinery, furniture, spare parts, fixtures and 

improvements Relating to the Business (the “Owned Equipment”), (ii) rights of Sellers to the equipment, 

machinery, furniture, spare parts, fixtures and improvements which are leased pursuant to a contract 

(collectively with the Owned Equipment, the “Equipment”), and (iii) rights of Sellers to the warranties, 

express or implied, and licenses received from manufacturers and sellers of the Equipment; and

(u) all assets, properties, interests and rights of any Seller used primarily or 

exclusively in the operation or conduct of the Business as conducted as of the date hereof, except for any 

such assets, properties, interests and rights described or identified in Section 2.1 or on Schedule 2.1.

2.3 Liabilities to be Assumed by Buyer. Subject to the terms and conditions of this 

Agreement, at the Closing (or, with respect to the Specified Domain Names, at the Subsequent Closing), 

Sellers shall assign to Buyer or Designated Purchasers, as applicable, and Buyer or Designated 

Purchasers, as applicable, shall assume from Sellers and pay when due, perform and discharge, in due 

course, without duplication, each of the Assumed Liabilities. “Assumed Liabilities” shall mean solely the 

following Liabilities:

(a) all Liabilities of Sellers under each of the Assumed Contracts that become due 

from and after the Closing Date;

(b) all Cure Costs (other than any Cure Costs for the assumption and assignment of 

the Zeavion License Agreement, it being understood that the cash required for such Cure Costs will be 

$0);

(c) all Transfer Taxes related to the sale, transfer or assignment of the Acquired 

Assets; and

(d) all Liabilities arising from or after the Closing (or, with respect to the Specified 

Domain Names, from and after the Subsequent Closing) with respect to or relating to the ownership or 

operation of any of the Acquired Assets by Buyer and/or any Designated Purchaser.

Notwithstanding the foregoing and for the avoidance of doubt, Assumed Liabilities shall not include any 

Liability that constitutes an “Excluded Liability” or any Liability relating to or arising out of any violation 

of Law by, or any Claim against, any Seller or any breach, default or violation by any Seller of or under 

any Assumed Contracts, other than the Cure Costs.

2.4 Excluded Liabilities. Notwithstanding anything in this Agreement to the 

contrary, Buyer shall not and does not assume, and shall be deemed not to have assumed and shall not be 

obligated to pay, perform, discharge or in any other manner be liable or responsible for any Liabilities of 

Sellers, whether existing on the Closing Date or arising thereafter, relating to or arising out of any of the 

following (collectively, the “Excluded Liabilities”):

(a) all costs and expenses incurred or to be incurred by Sellers in connection with 

this Agreement and the consummation of the Transactions;

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(b) all Liabilities (i) related to any current or former employee of any Seller or of any 

Subsidiary of any Seller (including under the WARN Act) and (ii) under any Benefit Plan (including all 

assets, trusts, insurance policies and administration service contracts related thereto);

(c) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers 

for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision 

of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for 

which Buyer or Designated Purchaser is liable pursuant to Section 2.3(c) and/or Section 2.3(d);

(d) all Liabilities arising out of, relating to or with respect to any and all employees, 

and contractors of Sellers or any of their Subsidiaries or Affiliates;

(e) all Liabilities to any broker, finder or agent or similar intermediary for any 

broker’s fee, finders’ fee or similar fee or commission relating to the Transactions contemplated by this 

Agreement for which any Seller or its Affiliates are responsible;

(f) all Liabilities, or corrective or remedial obligations with respect to Facilities or 

operation of the Business (including any related offsite disposal locations) which arises under or relates to 

any Environmental Laws (including without limitation any relating to exposure to Hazardous Materials); 

(g) all Liabilities arising out of, concerning, in connection with, or relating to the 

Real Property, the Leased Real Property, the Retained Business or the Proceedings listed on Schedule 4.6;

and 

(h) for the avoidance of doubt, all Liabilities arising out of, concerning, in 

connection with, or relating to the ownership or operation of the Specified Domain Names prior to the 

Subsequent Closing:

provided that in the event of any conflict between Section 2.3 and this Section 2.4, Section 2.4 will 

control.

2.5 Reserved.

2.6 Non-Assignment of Assumed Contracts.

(a) Notwithstanding anything in this Agreement to the contrary, this Agreement shall 

not constitute an agreement to assign any Assumed Contract which, after giving effect to the provisions of 

Section 365 of the Bankruptcy Code, is not assignable or transferable without the consent of any Person, 

other than the Sellers, any of their respective Affiliates or Buyer, to the extent that such consent shall not 

have been given prior to the Closing; provided, however, that (i) the Sellers shall use, whether before or 

after the Closing, its commercially reasonable efforts to obtain all necessary consents (each, a “Necessary 

Consent”) to the assignment and transfer thereof, it being understood that, to the extent the foregoing shall 

require any action by the Sellers that would, or would continue to, have an adverse effect on the business 

of Buyer or any of its Affiliates after the Closing, such action shall require the prior written consent of 

Buyer, and (ii) in the event that any Assumed Contract is deemed not to be assigned pursuant to clause (i) 

of this Section 2.6(a), the Sellers shall (A) use commercially reasonable efforts to obtain such necessary 

consents as promptly as practicable after the Closing and (B) cooperate in good faith in any lawful and 

commercially reasonable arrangement reasonably proposed by Buyer, including subcontracting, licensing 

or sublicensing to Buyer any or all of any Seller’s rights and obligations with respect to any such 

Assumed Contract, under which Buyer shall obtain (without infringing upon the legal rights of such third 

party or violating any Law) the economic rights and benefits under such Assumed Contract with respect 

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to which such Necessary Consent has not been obtained. Upon satisfying any requisite consent 

requirement applicable to such Assumed Contract after the Closing, such Assumed Contract shall 

promptly be transferred and assigned to Buyer in accordance with the terms of this Agreement. These 

commercially reasonable efforts shall not require any material payment or other material consideration 

from the Sellers or the Buyer (other than the Cure Costs, which shall be the responsibility of Buyer), and 

any such consent shall contain terms and conditions reasonably acceptable to the Parties. For the 

avoidance of doubt, the term “material” in the prior sentence means material in the context of the relevant 

Assumed Contract.

(b) Subject to Section 2.6(a), if after the Closing (i) Buyer or any of its Affiliates 

holds any Excluded Assets or Excluded Liabilities or (ii) any Seller or any of their Affiliates holds any 

Acquired Assets or Assumed Liabilities, Buyer or the applicable Seller, will promptly transfer (or cause 

to be transferred) such assets or assume (or cause to be assumed) such Liabilities to or from (as the case 

may be) the other party. Prior to any such transfer, the party receiving or possessing any such asset will 

hold it in trust for such other party.

2.7 Assumption and Assignment of Executory Contracts. Sellers shall provide 

timely and proper written notice of the motion seeking entry of the Sale Order to all parties to any 

executory Contracts to which any Seller is a party that are Assumed Contracts and take all other actions 

necessary to cause such Contracts to be assumed by Sellers and assigned to Buyer pursuant to Section 365 

of the Bankruptcy Code, as applicable, to the extent that such Contracts are Assumed Contracts at the 

Final Bid Deadline (as defined in the Bidding Procedures). At the Closing, Sellers shall, pursuant to the 

Sale Order and the Assignment and Assumption Agreement, assume and assign to Buyer (the 

consideration for which is included in the Purchase Price), all Assumed Contracts that may be assigned by 

any such Seller to Buyer pursuant to Sections 363 and 365 of the Bankruptcy Code, as applicable, subject 

to provision by Buyer of adequate assurance as may be required under Section 365 of the Bankruptcy 

Code and payment by Buyer of the Cure Costs in respect of Assumed Contracts pursuant to and in 

accordance with Section 365 of the Bankruptcy Code, as applicable, and the Sale Order. At the Closing, 

Buyer shall assume, and thereafter in due course and in accordance with its respective terms pay, fully 

satisfy, discharge and perform all of the obligations under each Assumed Contract pursuant to 

Section 365 of the Bankruptcy Code, as applicable.

ARTICLE 3

CLOSING; PURCHASE PRICE

3.1 Closing; Transfer of Possession; Certain Deliveries.

(a) The consummation of the Transactions (other than the sale, conveyance, 

assignment, transfer and delivery to Buyer of the Specified Domain Names) (the “Closing”) shall take 

place on the second Business Day after the satisfaction of all of the conditions set forth in Article 7 (or the 

waiver thereof by the Party entitled to waive that condition) or on such other date as the Parties hereto 

shall mutually agree. The Closing shall be held at the offices of Milbank LLP, 55 Hudson Yards, New 

York NY 10001, at 10:00 a.m., local time, unless the Parties hereto otherwise agree. The actual date of 

the Closing is herein called the “Closing Date”. The consummation of the sale, conveyance, assignment, 

transfer and delivery to Buyer of the Specified Domain Names (the “Subsequent Closing”) shall take 

place on the earlier of (i) the date on which the Sale (as defined in the Liquidation Agreement) has 

terminated and the Agent is no longer using the Specified Domain Names in connection with the 

transactions contemplated by the Liquidation Agreement and (ii) April 30, 2019, via the electronic 

exchange of documents, unless the Parties hereto otherwise agree. The actual date of the Subsequent 

Closing is herein called the “Subsequent Closing Date”. 

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(b) At the Closing, Sellers shall deliver to Buyer:

(i) an officer’s certificate, dated as of the Closing Date, executed by a duly 

authorized officer of Gemstone certifying that the conditions set forth in Section 7.1(a) and Section 7.1(b)

have been satisfied;

(ii) an electronic copy of the information required under Section 2.1(a)(ii), 

along with the administrative and technical contact(s) and other information necessary for accessing the 

registration, operation and use of the domain names and social media sites referred to in Section 2.1(a)(ii), 

including any applicable login identification credentials and passwords therefor;

(iii) an electronic and physical copy of the entirety of the PostgreSQL 

database(s) of the information and data required under Section 2.1(c) and Section 2.1(f) (Customer Data); 

ETL extract(s) of such PostgreSQL database(s) to provide Buyer all relevant access, extraction, 

transform, load thereto; and related analysis tools, models and credentials, except with respect to e-mails, 

which Buyer may retrieve from Sellers at its sole cost and expense upon reasonable prior request and in a 

commercially reasonable manner (it being understood that Sellers shall cooperate and work with Buyer in 

good faith in connection with any such request);

(iv) a duly executed bill of sale, in a form mutually agreed to by the Parties, 

transferring the Acquired Assets to Buyer; and

(v) the following Transaction Documents, duly executed by Sellers:

(I) Assignment and Assumption Agreement;

(II) U.S. Trademark Assignment Agreement;

(III) PRC Trademark Assignment Agreement;

(IV) Worldwide Trademark Assignment Agreement;

(V) Worldwide Copyright Assignment Agreement;

(VI) Power of Attorney Agreement; and

(VII) Domain Name Assignment Agreement (other than with respect 

to the Specified Domain Names).

(c) At the Closing, Buyer shall deliver to Sellers:

(i) the Purchase Price in accordance with the provisions of Section 3.2 by 

wire transfer of immediately available funds to an account or accounts that Sellers shall have notified 

Buyer of at least two (2) Business Days prior to the Closing Date;

(ii) an officer’s certificate, dated as of the Closing Date, executed by a duly 

authorized officer of Buyer certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b)

have been satisfied; and

(iii) the following Transaction Documents, duly executed by Buyer:

(I) Assignment and Assumption Agreement;

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(II) U.S. Trademark Assignment Agreement;

(III) PRC Trademark Assignment Agreement;

(IV) Worldwide Trademark Assignment Agreement;

(V) Worldwide Copyright Assignment Agreement; and

(VI) Domain Name Assignment Agreement (other than with respect 

to the Specified Domain Names).

(d) At the Subsequent Closing:

(i) Sellers shall deliver to Buyer a duly executed Domain Name Assignment 

Agreement (solely with respect to the Specified Domain Names); and

(ii) Buyer shall deliver to Sellers a duly executed Domain Name Assignment 

Agreement (solely with respect to the Specified Domain Names).

3.2 Consideration.

(a) Purchase Price. The aggregate consideration for the Acquired Assets 

(the “Purchase Price”) shall be (i) $76,000,000 in cash (the “Base Purchase Price”), and (ii) the 

assumption of the Assumed Liabilities.

3.3 Allocation of Purchase Price. (i) The sum of the Purchase Price and the amount 

of the Assumed Liabilities (to the extent properly taken into account under the Code) shall be allocated 

between Sellers and (ii) the amount allocated to the Acquired Assets sold by each such Seller shall be 

further allocated among such Acquired Assets in accordance with Section 1060 of the Code and the 

Treasury Regulations promulgated thereunder (the “Allocation”). The Allocation shall be delivered by 

Buyer to Sellers within ninety (90) days after the Closing. Sellers will have the right to raise reasonable 

objections to the Allocation within thirty (30) days after Buyer’s delivery thereof, in which event Buyer 

and Sellers will negotiate in good faith to resolve such dispute. If Buyer and Sellers cannot resolve such 

dispute within fifteen (15) days after Sellers notify Buyer of such objections, such dispute with respect to 

the Allocation shall be resolved promptly by the Neutral Accountant, the costs of which shall be shared in 

equal amounts by Buyer, on the one hand, and Sellers, on the other hand. The decision of the Neutral 

Accountant in respect of the Allocation shall be final and binding upon Buyer and Sellers. Buyer and 

Sellers shall file all Tax Returns (including, but not limited to, Internal Revenue Service Form 8594) 

consistent with the Allocation absent a change in Law; provided, however, that nothing contained herein 

shall prevent Buyer or any Seller from settling any proposed deficiency or adjustment by any Tax 

Authority based upon or arising out of the Allocation, and neither Buyer nor any Seller shall be required 

to litigate before any court any proposed deficiency or adjustment by any Tax Authority challenging such 

Allocation. Buyer and Sellers shall promptly notify and provide the other with reasonable assistance in 

the event of an examination, audit, or other proceeding relating to Taxes regarding the Allocation of the 

Purchase Price and the amount of the Assumed Liabilities pursuant to this Section 3.3. Notwithstanding 

any other provisions of this Agreement, the foregoing agreement shall survive the Closing Date without 

limitation.

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ARTICLE 4

REPRESENTATIONS AND WARRANTIES OF SELLERS

Except as set forth in the Disclosure Schedules, Sellers jointly and severally hereby represent and 

warrant to Buyer, as of the Agreement Date and as of the Closing, as follows:

4.1 Organization.

(a) Each Seller is duly organized, validly existing and in good standing under the 

Laws of the jurisdiction of its organization and has all requisite corporate power and authority to own, 

lease, develop and operate the Acquired Assets and to carry on the Business as now being conducted.

(b) Each Seller (i) is duly qualified or licensed to do business as a foreign 

corporation or limited liability company, as applicable, and is in good standing under the Laws of each 

jurisdiction where the nature of the property owned or leased by it or the nature of the Business makes 

such qualification or license necessary, except where any such failure to be so qualified or licensed, 

individually in the aggregate, would not result in a Sellers Material Adverse Effect, and (ii) pursuant to 

Sections 1107 and 1108 of the Bankruptcy Code and the Orders of the Bankruptcy Court, has all 

necessary corporate or limited liability company power and authority to own and operate its properties, to 

lease the property it operates under lease and to conduct the Business as debtor-in-possession.

4.2 Due Authorization, Execution and Delivery; Enforceability. Each Seller has all 

requisite corporate or limited liability company power and authority to execute and deliver this 

Agreement and the other Transaction Documents to which it is (or will become at Closing) a party and to 

perform its obligations hereunder and thereunder (subject, in the case of the obligation to consummate the 

Transactions, to the entry of the Sale Order). The execution, delivery and performance by each of Sellers 

of this Agreement and the other Transaction Documents to which it is (or will become at Closing) a party 

and the consummation of the Transactions have been duly and validly authorized by all requisite 

corporate or limited liability company action, as applicable, on the part of each such Seller and no other 

corporate or limited liability company action, as applicable, on the part of each such Seller is necessary to 

authorize this Agreement and such other Transaction Documents and to consummate the Transactions 

(subject, in the case of the obligation to consummate the Transactions, to the entry of the Sale Order). 

This Agreement and the other Transaction Documents to which each of Sellers is (or will become at 

Closing) party have been (or will be) duly and validly executed and delivered by each such Seller and 

(assuming the due authorization, execution and delivery by all parties hereto and thereto, other than such 

Seller) constitute (or will constitute) valid and binding obligations of each such Seller enforceable against 

each such Seller in accordance with their terms (subject, in the case of the obligation to consummate the 

Transactions, to the entry of the Sale Order).

4.3 Governmental Consents. No notice to, consent, approval or authorization of or 

designation, declaration or filing with any Governmental Entity is required by any Seller with respect to 

such Sellers’ execution, delivery and performance of any Transaction Document to which it is (or will 

become at Closing) a party or the consummation of the Transactions, except (a) as may be required under 

the HSR Act, (b) the Sale Order having been entered by the Bankruptcy Court, (c) notices, filings and 

consents required in connection with the Chapter 11 Cases and (d) any consent, approval or authorization 

of or designation, declaration or filing with any Governmental Entity the failure of which to be made or 

obtained would not, individually or in the aggregate, be, or reasonably be expected to be, material to the 

Acquired Assets taken as a whole.

4.4 No Conflicts. Subject to the receipt of the Necessary Consents set forth on 

Schedule 4.4 and the Sale Order having been entered by the Bankruptcy Court, the execution, delivery 

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and performance by such Seller of any Transaction Document to which such Seller is (or will become at 

Closing) a party, and the consummation of the Transactions, does not and will not (a) conflict with or 

result in any breach of any provision of its certificate of incorporation or bylaws or comparable governing 

documents, (b) without giving effect to Section 2.6, conflict with or result in the breach of the terms, 

conditions or provisions of or constitute a default (or an event which with notice or lapse of time or both 

would become a default) under, or give rise to any right of termination, acceleration or cancellation of any 

right or obligation or to a loss of any benefit under any provision of any Assumed Contract, (c) result in a 

violation of any Law or Order applicable to it or (d) result in the creation or imposition of any Lien on 

any Acquired Asset other than Permitted Liens, except, in the case of clauses (b), (c) and/or (d), as would 

not, individually or in the aggregate, be, or reasonably be expected to be, material to the Acquired Assets, 

taken as a whole.

4.5 Title to Acquired Assets. Except for Permitted Liens, Sellers have good and 

valid title to the material Acquired Assets. No Subsidiaries or Affiliates of Gemstone, other than Sellers, 

hold any Acquired Assets.

4.6 Litigation; Orders. Except for the Chapter 11 Cases and any adversary 

proceedings or contested motions commenced in connection therewith, or as set forth on Schedule 4.6, 

(a) there is no Claim, Proceeding or Order pending, outstanding or, to any Seller’s Knowledge, threatened 

against any Seller or any of their respective Affiliates (i) that would reasonably be expected to be material 

to the Acquired Assets or (ii) that seeks to restrain or prohibit or otherwise challenge the consummation, 

legality or validity of the Transactions contemplated hereby and (b) as of the Agreement Date, there is no 

Proceeding by any Seller or any of their respective Affiliates pending, or which a Seller or any such 

Affiliate has commenced preparations to initiate, against any other Person relating to or affecting the 

Acquired Assets.

4.7 Reserved. 

4.8 Reserved. 

4.9 Taxes.

(a) There are no material Liens on any of the Acquired Assets that arose in 

connection with, or are attributable to, any Seller’s failure to pay any Tax.

(b) Except as set forth on Schedule 4.9(b), there is no material dispute or claim 

concerning any Tax Liability of any Seller, with respect to the Business or the Acquired Assets, claimed, 

raised, or threatened by any Governmental Entity in writing.

(c) Except as set forth on Schedule 4.9(c), each Seller has timely filed all material 

U.S. federal, State and other Tax Returns that it was required to file under applicable Law with respect to 

the Business or the Acquired Assets, and (i) all such Tax Returns are true, correct, and complete in all 

material respects, and (ii) all material Taxes with respect to the Business or the Acquired Assets due 

(whether or not shown on such Tax Returns) have been fully and timely paid (other than any Taxes not 

due as of the date of the filing of the Chapter 11 Cases as to which subsequent payment was prohibited by 

reason of the Chapter 11 Cases and any Taxes that are the subject of a Permitted Lien).

4.10 Compliance with Laws; Permits. The Business has been operated in compliance 

with all applicable Laws, and no Seller has received any written notice of any alleged material violation 

of applicable Law from any Governmental Entity or other Person Relating to the Business, in either case 

except as would not, individually or in the aggregate be, or would reasonably be expected to be, material 

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to the Acquired Assets taken as a whole. Sellers hold all material Permits necessary or required pursuant 

to applicable Law for the operation of the Business as presently conducted and for the ownership, lease or

operation of the Business and the construction of any material improvements currently under construction 

on the Leased Real Property. To Sellers’ Knowledge, as of the date hereof, (a) no Seller has received 

written notice of any material default under any Permit Relating to the Business and (b) no violations 

exist in respect of such Permits, except for such non-compliance and such facts, conditions or 

circumstances, the existence of which would not, individually or in the aggregate, be, or would 

reasonably be expected to be, material to the Acquired Assets taken as a whole.

4.11 Contracts. Schedule 2.1(d) contains a true, correct and complete list of all 

Contracts that are necessary for the transfer, assignment and use of the Transferred Intellectual Property. 

Subject to receipt of the Necessary Consents and compliance with Section 6.10, (i) subject to the entry of 

the Sale Order, each of the Assumed Contracts is in full force and effect and constitutes a valid and 

binding obligation of the applicable Seller, and, to the Knowledge of Sellers, each other party thereto, and 

(ii) no Seller is in breach or default in any material respect under any of the Assumed Contracts and, to 

the Knowledge of Sellers, the other parties to such Contracts are not in breach or default in any material 

respect thereunder (and in each such case no event exists that with the passage of time or the giving of 

notice would constitute such material breach or default in any material respect, result in a loss of material 

rights, result in the payment of any damages or penalties or result in the creation of any Liens thereunder 

or pursuant thereto other than Permitted Liens). To Sellers’ Knowledge, none of the Assumed Contracts 

have been cancelled or otherwise terminated by Sellers, and Sellers have not delivered any written notice 

to any counterparty to such Assumed Contract regarding any such cancellation or termination by Sellers. 

4.12 Insurance Claims. Schedule 4.12 contains a true, correct and complete list of all 

insurances policies as of the Agreement Date (including the names and insurers and policy numbers) that 

are owned by any Seller or name any Seller as an insured or loss payee and that are relating primarily or 

exclusively to the Acquired Assets and a description of all material pending claims under each of such 

insurance policies pertaining to the Acquired Assets. Sellers have within the past three (3) years reported 

all known material Claims or incidents to the respective insurers that have issued current and prior 

insurance policies insuring the Business to the extent that any such Claims or incidents would reasonably 

be expected to create a covered event under the terms and conditions of such policies and Sellers were 

required to report them pursuant to the terms of the policies.

4.13 Intellectual Property.

(a) Schedule 4.13(a) sets forth a true, correct and complete list of all material 

Intellectual Property that is, as of the Agreement Date, issued, registered, or subject to an application for 

registration that is Transferred Intellectual Property (the “Registered IP”).

(b) Sellers own all Registered IP and all Transferred Intellectual Property free and 

clear of all Liens (other than Permitted Liens), and such Registered IP remains pending or in full force 

and effect and has not expired or been cancelled.

(c) To the Knowledge of Sellers, (i) the Registered IP is valid and enforceable except 

as enforceability may be limited by applicable bankruptcy, insolvency or similar Laws affecting the 

enforcement of creditors’ rights generally or by equitable principles relating to enforceability and (ii) the 

past three (3) years of use and current use by Sellers of the Transferred Intellectual Property owned by or 

licensed to Sellers does not infringe or otherwise violate any Intellectual Property of any other Person, 

except as would not, individually or in the aggregate, be, or reasonably be expected to be, material to the 

Transferred Intellectual Property. Except as provided for in Schedule 4.13(c), there is no Proceeding 

pending or, to the Knowledge of Sellers, threatened, alleging any such infringement or violation of any 

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Seller’s rights in or to the Registered IP or other Transferred Intellectual Property owned by Sellers,

except as would not, individually or in the aggregate, be, or reasonably be expected to be, material to the 

Transferred Intellectual Property. Except as provided for in Schedule 4.13(c), to the Knowledge of 

Sellers, no Person is infringing or otherwise violating the Registered IP or other Transferred Intellectual 

Property owned by Sellers.

4.14 Anti-Corruption and Sanctions.

(a) Each Seller and each of such Seller’s Subsidiaries, and, to the Knowledge of 

Sellers, all of their respective directors, officers, agents or employees, has been for the past five (5) years 

and currently is in compliance in all material respects with, Anti-Corruption Laws and Sanctions, 

Anti-Money Laundering Laws and Export Control and Customs Laws.

(b) None of Sellers or any of their Subsidiaries, or, to the Knowledge of Sellers, any 

directors, officers, agents or employees or Affiliates of Sellers or any of their Subsidiaries, or any other 

Person acting on their behalf has, (i) directly or indirectly, engaged in any Anti-Corruption Prohibited 

Activity, (ii) directly or indirectly engaged in any transaction or other business with a Restricted Party in 

violation of applicable Sanctions, or (iii) been or is the subject of any investigation by any Governmental 

Entity concerning compliance with Anti-Corruption Laws, Anti-Money Laundering Laws, Export Control 

and Customs Laws, or Sanctions. None of Sellers or any of their Subsidiaries, nor to the Knowledge of 

Sellers any of their respective officers, directors, employees, Affiliates or agents acting on their behalf, is 

a Restricted Party.

4.15 Data Privacy. In connection with its collection, storage, transfer (including 

transfer across national borders) and/or use of any personally identifiable information from any 

individuals, including any customers, prospective customers, employees and/or other third parties 

(collectively “Personal Information”), to the Knowledge of Sellers, each Seller is and, during the last six 

(6) years, has been in compliance with all applicable Laws in all relevant jurisdictions except as would 

not, individually or in the aggregate, be, or would reasonably be expected to be, material to the Acquired 

Assets taken as a whole and has obtained all necessary rights from third parties and complied in all 

material respects with all other requirements under applicable Laws to enable the collection, storage, 

transfer and/or use of such Personal Information for the purposes of the Business (as is customary in the 

retail and e-commerce industries) following Closing. Each Seller has complied in all material respects 

with the opt-out provisions of its privacy policies and any and all requests of customers to opt out of 

receipt of marketing messages. Each Seller has commercially reasonable physical, technical, 

organizational and administrative security measures in place to protect all Personal Information collected 

by it or on its behalf from and against unauthorized access, use and/or disclosure in accordance with 

applicable Laws and to the Knowledge of the Sellers there have been no security incidents which have 

resulted in the accidental or unlawful destruction, loss, alteration or unauthorized disclosure of or access 

to Personal Information during the last six (6) years.

4.16 Gym-IPCO LLC.

(a) Sellers have provided Buyer with a true, correct and complete copy of the GymIPCO LLC Agreement.

(b) Gym-IPCO is fully funded and there are no outstanding obligations of any Seller 

to make any Capital Contributions, fund any Expenses or pay any Expense Loan thereunder (each as 

defined in the Gym-IPCO LLC Agreement).

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(c) Sellers own beneficially and of record all of the Gym-IPCO Interests, free and 

clear of all Liens, and Sellers have full right, power and authority to transfer such Gym-IPCO Interests to 

Buyer, free and clear of all Liens, in each case other than (i) Liens arising pursuant to applicable securities 

Laws, (ii) Permitted Liens and (iii) Liens expressly set forth in the Gym-IPCO LLC Agreement.

4.17 Exclusive Representations and Warranties. Except for the representations and 

warranties contained in this Article 4 (as modified by the Disclosure Schedules) and the other Transaction 

Documents, none of Sellers nor their respective Affiliates, nor any of their respective Representatives, 

makes or has made any other representation or warranty on behalf of Sellers or otherwise in respect of 

Sellers, the Acquired Assets or the Business. Except for the representations and warranties contained in 

this Article 4 (as modified by the Disclosure Schedules) and the other Transaction Documents, each Seller 

(a) expressly disclaims and negates any representation or warranty, expressed or implied, at common law, 

by statute, or otherwise, relating to the condition of the Acquired Assets (including any implied or 

expressed warranty of merchantability or fitness for a particular purpose, or of conformity to models or 

samples of materials) and (b) disclaims all liability and responsibility for any representation, warranty, 

projection, forecast, statement, or information made, communicated, or furnished (orally or in writing) to 

Buyer or its Affiliates or Representatives (including any opinion, information, projection, or advice that 

may have been or may be provided to Buyer by any Representative of Sellers or any of their respective 

Affiliates). Sellers make no representations or warranties to Buyer regarding the probable success or 

profitability of the Acquired Assets. The disclosure of any matter or item in any schedule hereto will not 

be deemed to constitute an acknowledgment that any such matter is required to be disclosed or is material 

or that such matter would result in a Sellers Material Adverse Effect.

ARTICLE 5

REPRESENTATIONS AND WARRANTIES OF BUYER

Buyer hereby represent and warrant to Sellers, as of the Agreement Date and as of the Closing, 

except as set forth on the Disclosure Schedules, as follows:

5.1 Organization. Buyer is duly organized, validly existing and in good standing 

under the Laws of the jurisdiction of its organization. Buyer has all necessary corporate power and 

authority to own and operate its properties, to lease the property it operates under lease and to conduct its 

business.

5.2 Due Authorization, Execution and Delivery; Enforceability. Buyer has all 

requisite corporate power and authority to execute and deliver this Agreement and the other Transaction 

Documents to which it is (or will become at Closing) a party and to perform its obligations hereunder and 

thereunder (subject, in the case of the obligation to consummate the Transactions, to the entry of the Sale 

Order). The execution, delivery and performance by Buyer of this Agreement and the other Transaction 

Documents to which it is (or will become at Closing) a party and the consummation of the Transactions 

have been duly and validly authorized by all requisite corporate action on the part of Buyer and no other 

corporate action on the part of Buyer is necessary to authorize this Agreement and such other Transaction 

Documents and to consummate the Transactions (subject, in the case of the obligation to consummate the 

Transactions, to the entry of the Sale Order). This Agreement and the other Transaction Documents to 

which Buyer is (or will become at Closing) party have been (or will be) duly and validly executed and 

delivered by Buyer and (assuming the due authorization, execution and delivery by all parties hereto and 

thereto, other than Buyer) constitute (or will constitute) valid and binding obligations of Buyer 

enforceable against Buyer in accordance with their terms (subject, in the case of the obligation to 

consummate the Transactions, to the entry of the Sale Order), in each case except as enforceability may 

be limited by applicable bankruptcy, insolvency or similar Laws affecting the enforcement of creditors’ 

rights generally or by equitable principles relating to enforceability.

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5.3 Governmental Approvals. No notice to, consent, approval or authorization of or 

designation, declaration or filing with any Governmental Entity is required by Buyer with respect to 

Buyer’s execution and delivery of any Transaction Document to which it is (or will become at Closing) a 

party or the consummation of the Transactions, except (a) as may be required under the HSR Act, (b) the 

Sale Order having been entered by the Bankruptcy Court, and (c) any consent, approval or authorization 

of or designation, declaration or filing with any Governmental Entity the failure of which to be made or 

obtained would not, individually or in the aggregate, be reasonably expected to result in a Buyer Material 

Adverse Effect.

5.4 No Conflicts. The execution, delivery and performance by Buyer of any 

Transaction Document to which Buyer is (or will become at Closing) a party and the consummation of 

the Transactions, does not and will not (a) conflict with or result in any breach of any provision of its 

certificate of incorporation or bylaws or comparable governing documents, (b) conflict with or result in 

the breach of the terms, conditions or provisions of or constitute a default (or an event which with notice 

or lapse of time or both would become a default) under, or give rise to any right of termination, 

acceleration or cancellation under, any material Contract of Buyer, or (c) result in a violation of any Law 

or Order applicable to it, except, in the case of clauses (b) and (c), as would not, individually or in the 

aggregate, result in a Buyer Material Adverse Effect.

5.5 Availability of Funds and Financial Capability. To the extent that any portion 

of the Purchase Price is payable in cash, Buyer, as of the Closing, will have sufficient funds available to it 

to pay the cash portion of the Purchase Price on the Closing Date and to enable Buyer to perform all of its 

obligations under this Agreement. Immediately after giving effect to the consummation of the 

Transactions: (a) the fair saleable value (determined on a going concern basis) of the assets of Buyer will 

be greater than the total amount of its Liabilities; (b) Buyer will be solvent and able to pay its respective 

debts and obligations in the Ordinary Course of Business as they become due; (c) no transfer of property 

is being made and no obligation is being incurred in connection with the Transactions with the intent to 

hinder, delay or defraud either present or future creditors of Buyer in connection with the Transactions; 

(d) Buyer has not incurred, nor plans to incur, debts beyond its ability to pay as they become absolute and 

matured; and (e) Buyer will have adequate capital to carry on all businesses in which it is about to engage.

5.6 Adequate Assurances Regarding Executory Contracts. Buyer (or such of 

Buyer’s Affiliates which will be assuming any Assumed Contract) is and will be capable of satisfying the 

conditions contained in sections 365(b)(1)(C) and 365(f) of the Bankruptcy Code with respect to the 

Assumed Contracts.

5.7 Condition and Location of Acquired Assets. Except as otherwise expressly set 

forth in this Agreement, Buyer understands and agrees that the Acquired Assets are furnished “as is”, 

“where is” and, subject only to the representations and warranties contained in Article 4, with all faults, 

limitations and defects (hidden and apparent) and, subject to the representations and warranties contained 

in Article 4, without any other representation or warranty of any nature whatsoever and without any 

guarantee or warranty (whether express or implied) as to their title, quality, merchantability or their 

fitness for Buyer’s intended use or a particular purpose or any use or purpose whatsoever.

5.8 Exclusive Representations and Warranties. Except for the representations and 

warranties contained in this Article 5 (as modified by the Disclosure Schedules), none of Buyer, its 

Affiliates, nor any of their respective Representatives, makes or has made any other representation or 

warranty on behalf of Buyer. Except for the representations and warranties contained in this Article 5 (as 

modified by the Disclosure Schedules), Buyer disclaims all liability and responsibility for any 

representation, warranty, projection, forecast, statement, or information made, communicated, or 

furnished (orally or in writing) to Sellers or their respective Affiliates or Representatives (including any 

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opinion, information, projection, or advice that may have been or may be provided to Sellers by any 

Representative of Buyer or any of their respective Affiliates). The disclosure of any matter or item in any 

schedule hereto will not be deemed to constitute an acknowledgment that any such matter is required to 

be disclosed or is material or that such matter would result in a Buyer Material Adverse Effect.

5.9 No Other Representations or Warranties of Sellers; Disclaimers.

(a) NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN 

THIS AGREEMENT, EXCEPT AS AND TO THE EXTENT EXPRESSLY SET FORTH IN THIS 

AGREEMENT AND IN THE TRANSACTION DOCUMENTS, BUYER ACKNOWLEDGES AND 

AFFIRMS THAT SELLERS MAKE NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, 

AND DISCLAIM ALL LIABILITY AND RESPONSIBILITY FOR ANY REPRESENTATION, 

WARRANTY, STATEMENT OR INFORMATION MADE OR COMMUNICATED (ORALLY OR IN 

WRITING) TO BUYER (INCLUDING ANY OPINION, INFORMATION, OR ADVICE THAT MAY 

HAVE BEEN PROVIDED TO BUYER BY ANY RESPECTIVE AFFILIATE OR REPRESENTATIVE 

OF SELLERS OR BY ANY INVESTMENT BANK OR INVESTMENT BANKING FIRM, SELLERS’ 

COUNSEL, OR ANY OTHER AGENT, CONSULTANT, OR REPRESENTATIVE OF SELLERS). 

OTHER THAN AS SET FORTH HEREIN OR IN THE OTHER TRANSACTION DOCUMENTS, 

BUYER FURTHER ACKNOWLEDGES AND AFFIRMS THAT SELLERS MAKE NO 

REPRESENTATION, COVENANT OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE 

ACCURACY OR COMPLETENESS OF ANY FILES, RECORDS OR DATA HERETOFORE OR 

HEREAFTER FURNISHED IN CONNECTION WITH THE ACQUIRED ASSETS (INCLUDING 

WITHOUT LIMITATION IN ANY CONFIDENTIAL INFORMATION STATEMENT OR 

MEMORANDUM, MANAGEMENT PRESENTATION, OR DOCUMENT MADE AVAILABLE IN A 

DATAROOM). OTHER THAN AS SET FORTH HEREIN OR IN THE OTHER TRANSACTION 

DOCUMENTS, ANY AND ALL SUCH FILES, RECORDS AND DATA FURNISHED BY SELLERS 

ARE PROVIDED AS A CONVENIENCE, AND ANY RELIANCE ON OR USE OF THE SAME 

SHALL BE AT BUYER’S SOLE RISK. WITHOUT LIMITING THE GENERALITY OF THE 

FOREGOING, EXCEPT AS SET FORTH IN THE TRANSACTION DOCUMENTS, BUYER 

FURTHER ACKNOWLEDGES AND AFFIRMS THAT SELLERS EXPRESSLY DISCLAIM ANY 

REPRESENTATION OR WARRANTY, EXPRESS, IMPLIED, AT COMMON LAW, BY STATUTE, 

OR OTHERWISE, RELATING TO (A) THE TITLE TO ANY OF THE ACQUIRED ASSETS, (B) THE 

CONDITION OF THE ACQUIRED ASSETS (INCLUDING ANY IMPLIED OR EXPRESS 

WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR 

CONFORMITY TO MODELS OR SAMPLES OF MATERIALS), IT BEING UNDERSTOOD THAT, 

OTHER THAN AS SET FORTH HEREIN OR IN THE OTHER TRANSACTION DOCUMENTS, THE 

ASSETS ARE BEING SOLD “AS IS,” “WHERE IS,” AND “WITH ALL FAULTS AS TO ALL 

MATTERS,” (C) FREEDOM FROM HIDDEN OR REDHIBITORY DEFECTS OR VICES, (D) ANY 

INFRINGEMENT BY SELLERS OF ANY PATENT OR PROPRIETARY RIGHT OF ANY THIRD 

PARTY, AND (E) ANY INFORMATION, DATA, OR OTHER MATERIALS.

(b) Buyer acknowledges and affirms that it has made its own independent 

investigation, analysis, and evaluation of the Transactions contemplated hereby and the Acquired Assets 

(including Buyer’s own estimate and appraisal of the extent and value of the Acquired Assets). Buyer 

acknowledges that in entering into this Agreement, it has relied on the aforementioned investigation. 

Buyer hereby irrevocably covenants to refrain from, directly or indirectly, asserting any claim, or 

commencing, instituting, or causing to be commenced, any Proceeding of any kind against Sellers or any 

of their respective Affiliates or Subsidiaries, alleging facts contrary to the foregoing acknowledgment and 

affirmation.

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ARTICLE 6

COVENANTS OF THE PARTIES

6.1 Conduct of Business Pending the Closing. During the period from the date of 

this Agreement and continuing until the earlier of the termination of this Agreement in accordance with 

its terms and the Closing (or, solely with respect to the Specified Domain Names, the Subsequent 

Closing) (the “Interim Period”), except (x) as may be required by Order of the Bankruptcy Court 

(provided that no Seller directly or indirectly petitioned, sought, requested or moved for such order of the 

Bankruptcy Court or authorized, supported or directed any other Person to petition, seek, request or move 

for such Order of the Bankruptcy Court), (y) as contemplated in the Liquidation Agreement, or (z) as 

contemplated by the Approved Budget, Sellers shall carry on the Business in the Ordinary Course of 

Business and, to the extent consistent therewith, use commercially reasonable efforts to preserve the 

Business intact and preserve the goodwill of and relationships with Governmental Entities, customers, 

suppliers, employees and others having business dealings with the Business. Notwithstanding the first 

sentence of this Section 6.1, during the Interim Period, except (I) as contemplated in the Liquidation 

Agreement or (II) as contemplated by the Approved Budget, Sellers shall not, and shall cause their 

Affiliates not to, directly or indirectly, without the prior written consent of Buyer:

(a) modify, amend, terminate, waive any material rights or obligations under or 

otherwise seek to reject any Assumed Contract;

(b) extend the Sale Termination Date under the Liquidation Agreement beyond April 

30, 2019;

(c) lease, license, surrender, relinquish, sell, transfer, convey, assign or otherwise 

dispose of any interest in any Acquired Assets other than pursuant to an Order of the Bankruptcy Court 

(provided that no Seller directly or indirectly petitioned, sought, requested or moved for such order of the 

Bankruptcy Court or authorized, supported or directed any other Person to petition, seek, request or move 

for such Order of the Bankruptcy Court);

(d) mortgage, pledge or subject to Liens (other than Permitted Liens) any of the 

Acquired Assets or any part thereof;

(e) institute, settle, compromise or agree to settle any (i) material Proceeding (other 

than the Chapter 11 Cases) before any Governmental Entity relating primarily or exclusively to the 

Acquired Assets or (ii) pending or threatened Claim that could give rise to Liabilities that are not 

Assumed Liabilities, or modify in any manner that is adverse to the Acquired Assets, rescind, reject or 

terminate a Transferable Permit (or application therefor) relating primarily or exclusively to the Acquired 

Assets;

(f) with respect to any Acquired Asset, (i) make, change or revoke any material Tax 

election, (ii) change any annual Tax accounting period, (iii) enter into any agreement with respect to 

material Taxes or apply for any Tax ruling, (iv) file any amended Tax Return, (v) settle or compromise 

any Tax Liability or Claim for a Tax refund, (vi) surrender any right to Claim a refund for Taxes, (vii) 

incur any material Tax Liability outside of the Ordinary Course of Business, (viii) consent to an extension 

of the statute of limitations applicable to any Tax Claim or assessment (other than pursuant to extensions 

of time to file Tax Returns obtained in the Ordinary Course of Business) or (ix) change (or request any 

Governmental Entity to change) any material aspect of its method of accounting for Tax purposes, in each 

case, except as required by applicable Law; or

(g) enter into any Contract to do any of the foregoing.

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Nothing contained in this Agreement is intended to give Buyer or its Affiliates, directly or 

indirectly, the right to control or direct the business of Sellers prior to the Closing. 

6.2 Back-Up Bidder. If an Auction is conducted, and Buyer is not the Successful 

Bidder for the Acquired Assets, Buyer shall, in accordance with and subject to the Bidding Procedures, be 

required to serve as the back-up bidder if Buyer is the next highest or otherwise best bidder for the 

Acquired Assets at the Auction (the party that is the next highest or otherwise best bidder at the Auction 

after the Successful Bidder, the “Back-Up Bidder”) and, if Buyer is the Back-Up Bidder, Buyer shall, 

notwithstanding Section 8.1(b)(ii), be required to keep its bid to consummate the Transactions on the 

terms and conditions set forth in this Agreement (as the same may be improved upon by Buyer in the 

Auction) open and irrevocable until the Outside Back-Up Date. Following the Auction, if the Successful 

Bidder fails to consummate the applicable Alternative Transaction as a result of a breach or failure to 

perform on the part of such Successful Bidder, then Buyer, if Buyer is the Back-Up Bidder, will be 

deemed to have the new prevailing bid, and Sellers may seek authority to consummate the Transactions 

on the terms and conditions set forth in this Agreement (as the same may be improved upon by Buyer in 

the Auction) with the Back-Up Bidder.

6.3 Access. Subject to applicable Law, during the Interim Period, Sellers (a) shall 

give Buyer and its Representatives reasonable access during normal business hours to the offices, 

properties, officers, employees, accountants, auditors, counsel and other representatives, books and 

records of Sellers in each case to the extent relating primarily or exclusively to the Acquired Assets, as 

Buyer reasonably deems necessary in connection with effectuating the Transactions contemplated by this 

Agreement (b) shall furnish to Buyer and its Representatives such information relating primarily or 

exclusively to the Acquired Assets as Buyer and its Representatives reasonably request and (c) shall 

cooperate reasonably with Buyer in its investigation of the Acquired Assets. It is acknowledged and 

understood that no investigation by Buyer or other information received by Buyer shall operate as a 

waiver or otherwise affect any representation, warranty or other agreement given or made by Sellers 

hereunder. Notwithstanding the foregoing, Buyer shall not have, by virtue of this Section 6.3, any 

additional access or investigation right to the extent it relates to the negotiation of this Agreement or the 

Transactions. Buyer agrees to indemnify and hold Sellers and their Affiliates and their respective 

Representatives harmless of and from all actions, Claims, investigations, deficiencies, costs and expenses 

(including attorneys’ fees and expenses) that arise out of or relate to physical injuries arising from 

Buyer’s inspection of the Acquired Assets (other than to the extent any of the foregoing results from the 

willful misconduct of the Person seeking such indemnification), and notwithstanding anything to the 

contrary in this Agreement, such obligation to indemnify shall survive Closing or any termination of this 

Agreement. 

6.4 Public Announcements. Buyer and Sellers will consult with each other before 

issuing, and provide each other the opportunity to review and comment upon, any press release or public 

announcement of this Agreement and the Transactions (which press release or public announcement shall 

be distributed by email to the parties in the Notice section of this Agreement), and neither Buyer nor any 

Seller shall issue any such press release or public announcement without the prior approval of the other 

Party, which approval will not be unreasonably withheld or delayed, in each case except as may be 

required by Law, court process (including the filing of this Agreement with the Bankruptcy Court) or by 

obligations pursuant to any listing agreement with any national securities exchange. Buyer and each 

Seller shall cause its Affiliates and Representatives to comply with this Section 6.4. Notwithstanding the 

foregoing, Buyer shall have no obligation to consult with or seek approval from Sellers prior to (i) filing, 

distributing or furnishing its Form 8-K (including all exhibits, appendices, or other attachments thereto) 

with or to the Securities and Exchange Commission or (ii) issuing a press release, in either case

announcing entry into this Agreement (and the other Transaction Documents) and the Transactions or that 

it is the Successful Bidder or Back-up Bidder following the Auction.

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6.5 Tax Matters.

(a) All Transfer Taxes arising out of the transfer of the Acquired Assets pursuant to 

this Agreement shall be borne by Buyer. Sellers and Buyer shall cooperate to timely prepare and file any 

Tax Returns relating to such Transfer Taxes, including any Claim for exemption or exclusion from the 

application or imposition of any Transfer Taxes. Buyer or Sellers, as applicable, shall file all necessary 

documentation and returns with respect to such Transfer Taxes when due, and shall promptly, following 

the filing thereof, furnish a copy of such return or other filing and a copy of a receipt showing payment of 

any such Transfer Tax to the other Parties hereto. Buyer shall pay all such Transfer Taxes when due. 

Notwithstanding the foregoing, Sellers shall be reimbursed by Buyer with respect to any such Transfer 

Taxes paid by Sellers.

(b) Each of Buyer, on the one hand, and Sellers, on the other hand, shall furnish or 

cause to be furnished to the other, upon request, as promptly as practicable, such information and 

assistance relating primarily or exclusively to the Acquired Assets as is reasonably necessary for filing of

all Tax Returns, including any Claim for exemption or exclusion from the application or imposition of 

any Taxes, the preparation for any audit by any Tax Authority and the prosecution or defense of any 

Proceeding relating to any Tax Return.

6.6 Approvals; Reasonable Best Efforts; Notification; Consent.

(a) Subject to the terms and conditions of this Agreement, each Party shall use its 

reasonable best 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 Parties in doing, all things necessary, proper or advisable under 

applicable Law to consummate and make effective the Transactions. Without limiting the generality of 

the foregoing, the Parties will, at Buyer’s sole cost and expense, use their respective reasonable best 

efforts to (i) prepare and file as soon as practicable all forms, registrations and notices relating to the 

consents of Governmental Entities that are required by applicable Law to be filed in order to consummate 

Transactions that are material to the Acquired Assets or to Buyer and its Affiliates (with respect to any 

filing required under the HSR Act, within five (5) Business Days following the Agreement Date, and with 

respect to any other such filing, as soon as reasonably possible), and take such actions as are reasonably 

necessary to obtain any consents from, or to avoid any action or proceeding by, any Governmental Entity 

relating to such approvals, including any Notification and Report Forms in connection with the HSR Act 

or approvals required under Environmental Law, including notifications and approvals necessary to 

transfer Permits, licenses and other authorizations required under Environmental Law (to the extent such 

Permits, licenses and other authorizations are transferable), (ii) take all actions necessary to transfer the 

Acquired Assets, (iii) take all actions necessary to cause all conditions set forth in Article 7 to be satisfied 

as soon as practicable (iv) lift or rescind any existing Order preventing, prohibiting or delaying the 

consummation of the Transactions, (v) effect all necessary registration, applications, notices and other 

filings required by applicable Law, including, as applicable to Sellers, under the Bankruptcy Code, and 

(vi) execute and deliver any additional instruments necessary to fully carry out the purposes of this 

Agreement; provided, however, that nothing in this Agreement, including this Section 6.6 shall require 

Buyer to (A) consent to any material condition or material concession required by any Governmental 

Entity or third party; (B) consent to any divestitures of any material subsidiary or material assets of Buyer 

or its Affiliates, or of the Acquired Assets or accept any material limitation on or material condition on 

the manner in which any of the foregoing conducts their business; (C) pay any material amounts required 

or requested by any Governmental Entity; or (D) accept an agreement to hold separate any material 

portion of any business or of any material assets of any material subsidiary of Buyer or its Affiliates, or of 

the Acquired Assets. Buyer and Sellers shall not, and shall cause their respective Affiliates not to, take 

any action that would reasonably be expected to prevent or materially delay the approval of any 

Governmental Entity of any of the filings referred to in this Section 6.6(a).

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(b) Each Party shall (i) respond as promptly as reasonably practicable to any 

inquiries or requests for additional information and documentary material received from any 

Governmental Entity relating to the matters described in Section 6.6(a), (ii) not extend any waiting period 

or agree to refile under the HSR Act (except with the prior written consent of the other Parties hereto, 

which consent shall not be unreasonably withheld, conditioned or delayed) and (iii) not enter into any 

agreement with the any Governmental Entity agreeing not to consummate the Transactions.

(c) In connection with and without limiting the foregoing, each Party shall, subject to 

applicable Law and except as prohibited by any applicable representative of any applicable Governmental 

Entity: (i) promptly notify the other Parties of any material written communication to that Party from any 

Governmental Entity concerning this Agreement or the Transactions, and permit the other Parties to

review in advance (and to consider any comments made by the other Parties in relation to) any proposed 

written communication to any of the foregoing; (ii) not participate in or agree to participate in any 

substantive meeting, telephone call or discussion with any Governmental Entity in respect of any filings, 

investigation or inquiry concerning this Agreement or the Transactions unless it consults with the other 

Parties in advance and, to the extent permitted by such Governmental Entity, gives the other Parties the 

opportunity to attend and participate in such meeting, telephone call or discussion; and (iii) subject to the 

attorney-client and similar applicable privileges, furnish outside legal counsel for the other Parties with 

copies of all correspondence, filings, and written communications (and memoranda setting forth the 

substance thereof) between such Party and its Affiliates and their respective Representatives, on the one 

hand, and any Governmental Entity or its members or their respective staffs, on the other hand, with 

respect to this Agreement and the Transactions; provided, however, that any such Party may limit the 

disclosure of filings to protect confidential information, including limiting dissemination of filings to an 

“outside counsel only” basis.

6.7 Reserved.

6.8 Further Assurances. The Parties agree to (a) furnish upon request to each other 

such further information, (b) execute, acknowledge and deliver to each other such other documents and 

(c) do such other acts and things, all as the other Party may reasonably request for the purpose of carrying 

out the intent of this Agreement and the Transaction Documents, including, without limitation, execution 

and delivery of the Power of Attorney Agreement; provided that nothing in this Section 6.8 or this 

Agreement shall prohibit Sellers from ceasing operations or winding up their affairs following the 

Closing. At the Closing, Sellers shall execute and deliver to Buyer such other instruments of transfer as 

shall be reasonably necessary or appropriate to vest in Buyer title to the Acquired Assets free and clear of 

all Liens (other than Permitted Liens) and to comply with the purposes and intent of this Agreement and 

such other instruments as shall be reasonably necessary or appropriate to evidence the assignment by 

Sellers and assumption by Buyer of the Acquired Assets. Each of Sellers, on the one hand, and Buyer, on 

the other hand, shall use its commercially reasonable efforts to take, or cause to be taken, all appropriate 

action, do or cause to be done all things necessary, proper or advisable under applicable Law, and execute 

and deliver such documents and other papers, as may be required to consummate the Transactions 

contemplated by this Agreement at or after the Closing, including, assistance by Sellers (with respect to 

applicable filing, submission or similar fees, at Buyer’s cost and expense) with the transfer of the 

Transferred Intellectual Property (including with respect to making all appropriate filings and submissions 

with the United States Copyright Office, United States Patent and Trademark Office and any applicable 

similar agencies in foreign jurisdictions promptly after Closing, and in any event within thirty (30) days 

of Closing) and taking whatever steps or actions that are reasonably necessary to transfer the domain 

names included in the Transferred Intellectual Property, including, (i) causing any party under Sellers’ 

control to execute such documents and do all other acts reasonably necessary to transfer such domain 

names to Buyer, (ii) taking any and all actions that may be required or recommended by the applicable 

domain name registrars to effectuate and/or record the transfer of such domain names from Sellers to 

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Buyer with such registrars, (iii) causing the administrative and technical contact(s) for such domain 

names to take all steps as may be reasonably necessary to effect the transfer and recordation of the 

domain names from Sellers to Buyer, (iv) providing Buyer or its permitted successors, assigns or other 

legal representatives with the details of any account information or passwords necessary for Buyer to 

control the domain names, and (v) taking any acts necessary to cause the publicly available records 

accessible through the “Whois” system to state that Buyer is the registrant of the Domain Names (in the 

case of (i) – (v) at the Closing or the Subsequent Closing, as applicable).

6.9 Bankruptcy Court Filings.

(a) Seller will file the results of the Auction, the notice of the Successful Bidder and 

the Proposed Assumed Contracts Notice (as defined in the Bidding Procedures), in accordance with the 

Bidding Procedures and with the Bankruptcy Court prior to Closing. Seller shall give appropriate notice, 

and provide appropriate opportunity for hearing, to all Persons entitled thereto, of all motions, orders, 

hearings and other proceedings relating to this Agreement and the Transactions contemplated hereby and 

thereby and such additional notice as ordered by the Bankruptcy Court.

(b) Sellers shall use reasonable best efforts to secure entry of the Sale Order. Sellers 

shall use reasonable best efforts to demonstrate to the Bankruptcy Court that they have taken reasonable 

steps to obtain the highest, best or otherwise financially superior offer possible for the Acquired Assets 

under the circumstances. Sellers shall use their commercially reasonable efforts to secure expedited 

resolution of any appeal, petition or motion for reconsideration, modification amendment, vacation, stay 

rehearing or re-argument related to the Sale Order. Sellers shall use commercially reasonable efforts to 

comply (or obtain an Order from the Bankruptcy Court waiving compliance) with all requirements under 

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

in connection with obtaining approval of the Sale Order. Sellers shall consult in good faith with Buyer 

and its Representatives concerning the Sale Order, any other Orders of the Bankruptcy Court relating to 

the Transactions, and the bankruptcy proceedings in connection therewith, and use commercially 

reasonable efforts to provide Buyer with copies of applications, pleadings, notices, proposed Orders and 

other documents relating to such proceedings as soon as reasonably practicable but no later than one (1) 

Business Day (to the extent reasonably practicable), prior to filing. Any material pleadings, notices, 

proposed Orders and documents relating to the Transactions filed with the Bankruptcy Court by Sellers 

after the date hereof shall be in form and substance reasonably acceptable to Buyer prior to being filed 

with the Bankruptcy Court.

(c) Buyer agrees that it will promptly take such actions as are reasonably requested 

by Sellers to assist in obtaining entry of the Sale Order and a finding of adequate assurance of future 

performance by Buyer or Designated Purchaser, as applicable, under the Assumed Contracts, including 

furnishing affidavits or other documents or information for filing with the Bankruptcy Court for the 

purposes, among others, of providing necessary assurances of performance by Buyer under this 

Agreement and demonstrating that Buyer is a “good faith” purchaser under section 363(m) of the 

Bankruptcy Code; provided, however, in no event shall Buyer or Sellers be required to agree to any 

amendment of this Agreement.

(d) Sellers further covenant and agree that, after the entry of the Sale Order, the 

terms of any reorganization or liquidation plan it submits to the Bankruptcy Court, or any other court for 

confirmation or sanction, shall not be intended to (or reasonably likely to) supersede, abrogate, nullify or 

restrict the terms of this Agreement in any material respect, or prevent the consummation or performance 

of the Transactions, in each case except as expressly permitted pursuant to Section 6.2 or the Bidding 

Procedures.

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6.10 Cure Costs. Sellers shall transfer and assign all Assumed Contracts to Buyer or 

Designated Purchaser, as applicable, and Buyer or Designated Purchaser, as applicable, shall assume all 

Assumed Contracts from Sellers, as of the Closing Date pursuant to section 365 of the Bankruptcy Code 

and the Sale Order. Seller shall use reasonable best efforts to provide Buyer with a good faith estimate of 

the Cure Costs for each Assumed Contract as soon as reasonably practicable after the Agreement Date. In 

connection with the assignment and assumption of the Assumed Contracts, Buyer or Designated 

Purchaser, as applicable, shall cure any monetary defaults under the Assumed Contracts by payment of 

any Cure Costs (or create reserves therefor) as determined in accordance with the Bidding Procedures. 

Buyer or Designated Purchaser, as applicable, shall be responsible for demonstrating and establishing 

adequate assurance of future performance before the Bankruptcy Court with respect to the Assumed 

Contracts; provided, however, that there shall be no Cure Costs incurred by Buyer, Designated Purchaser 

or any of their respective Affiliates with respect to the assignment and assumption by Buyer or 

Designated Purchaser, as applicable, of the Zeavion License Agreement.

6.11 Preservation of Books and Records. After the Closing Date, Buyer shall 

provide to Sellers and their respective Affiliates and Representatives (after reasonable notice and during 

normal business hours and without charge to Sellers other than the costs of copying, if any) reasonable 

access to, including the right to make copies of, all books and records included in and otherwise related to 

the Acquired Assets, to the extent necessary to permit Sellers to determine any matter relating to its rights 

and obligations hereunder or to any period ending on or before the Closing Date (for example, for 

purposes of any Tax or accounting audit or any claim or litigation matter, but not for any dispute or claim 

between Buyer and Seller in connection with this Agreement, the Transaction Documents or otherwise), 

for periods prior to the Closing and shall preserve such books and records until the later of (i) such period 

as shall be consistent with Buyer’s records retention policy in effect from time to time, (ii) the retention 

period required by applicable Law, (iii) the conclusion of all bankruptcy proceedings relating to the 

Chapter 11 Cases or (iv) in the case of books and records relating to Taxes, the expiration of the statute of 

limitations applicable to such Taxes. Such access shall include access to any information in electronic 

form to the extent reasonably available. Buyer acknowledges that Sellers have the right to retain originals 

or copies of all of books and records included in or related to the Acquired Assets for periods prior to the 

Closing. 

6.12 Bulk Transfer Laws. The Parties intend that pursuant to Section 363(f) of the 

Bankruptcy Code, the transfer of the Acquired Assets shall be free and clear of any security interests in 

the Acquired Assets, including any liens or claims arising out of the bulk transfer laws, and the parties 

shall take such steps as may be necessary or appropriate to so provide in the Sale Order. In furtherance of 

the foregoing, each Party hereby waives compliance by the Parties with the “bulk sales,” “bulk transfers”

or similar Laws and all other similar Laws in all applicable jurisdictions in respect of the Transactions 

contemplated by this Agreement.

6.13 Transfer of Assets. Buyer agrees to assume responsibility for, and pay all 

expenses in connection with, removing, transporting or relocating all Acquired Assets that, at the Closing, 

are located at any of the facilities or Real Property of any Seller or any of their Affiliates, and which, if 

reasonably requested by Buyer, have been packaged by any Seller (which packaging shall be at the 

Buyer’s cost and expense) for transport. Other than the items set forth in Section 3.1(b) which are to be 

delivered at Closing, such removal, transportation or relocation shall be completed by Buyer within thirty 

(30) days following the Closing Date. Sellers agree, from and after the Closing Date, to provide Buyer, 

its agents and employees, reasonable access to such facilities during reasonable business hours and upon 

reasonable notice for purposes of removing such Acquired Assets. Sellers shall have no Liability to 

Buyer in connection with the storage at, or removal from, such facilities of such Acquired Assets after the 

Closing, and risk of loss with respect to such Acquired Assets shall pass to Buyer upon the Closing. 

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Buyer shall be responsible for the costs of repairing any damage to such facilities resulting from the 

removal of such Acquired Assets therefrom after the Closing Date.

6.14 Payments from Third Parties After Closing. In the event that any Seller receives 

any payment from a third party (other than Buyer or any of its Affiliates) after the Closing Date pursuant 

to any of the Assumed Contracts (or with respect to the operation by Buyer of any Acquired Asset during 

the post-Closing period) and to the extent such payment is not in respect of an Excluded Asset or an 

Excluded Liability, Sellers shall forward such payment, as promptly as practicable but in any event within 

thirty (30) days after such receipt, to Buyer (or other entity nominated by Buyer in writing to Sellers) and 

notify such third party to remit all future payments (in each case, to the extent such payment is in respect 

of any post-Closing period with respect to an Acquired Asset and is not in respect of an Excluded Asset 

or an Excluded Liability) pursuant to the Assumed Contracts to Buyer (or such other entity). 

Notwithstanding anything to the contrary in this Agreement, in the event that Buyer or any of its 

Affiliates receives any payment from a third party after the Closing on account of, or in connection with, 

any Excluded Asset, Buyer shall forward such payment, as promptly as practicable but in any event 

within thirty (30) days after such receipt, to Sellers (or other entity nominated by Sellers in writing to 

Buyer) and notify such third party to remit all future payments on account of or in connection with any 

Excluded Assets to Sellers (or such other entity).

6.15 Use of Names. Gemstone and its Subsidiaries shall have the limited, nontransferable, non-sublicensable, royalty-free, non-exclusive right to use the “Gymboree” name or any 

variations or derivatives thereof or any trademarks or logos embodying the foregoing (collectively, the 

“Names”) as currently used by Gemstone and its Subsidiaries and in a manner substantially consistent 

with or substantially analogous to the scope of use of the Names by Gemstone and its Subsidiaries in the 

twelve (12) month period prior to the Closing, and solely in connection with the Liquidation Agreement 

and the wind-down of the Gemstone and Coral Brick and Mortar Business, including with respect to (a) 

the legal names of Gemstone and its Subsidiaries, (b) existing signage on and in physical facilities, 

labeling, stationery, business forms, supplies and advertising and promotional materials bearing the 

Names, and (c) as part of the Specified Domain Names in the case of (a) and (b), until thirty (30) days 

(the “Termination Date For Use of Name”) following the earliest of (i) the date on which the Chapter 11 

Cases are terminated, (ii) the date on which the Chapter 11 Cases are fully and finally resolved and (iii) 

the date that is ninety (90) days after the Closing and, in the case of (c), until the earliest of (i) the date on 

which the Sale (as defined in the Liquidation Agreement as in existence on January 18, 2019) has

terminated and the Agent is no longer using the Specified Domain Names and (ii) the Subsequent Closing 

Date; provided, however, that neither Gemstone nor any of its Subsidiaries shall (i) take any action that 

would reasonably be expected to impair the value of or goodwill associated with the Names, or (ii) apply 

the Names to any product or other materials that were not existing as of the Closing or use the Names in 

connection with any service, location or business that was not existing as of the Closing. Gemstone and 

each of its Subsidiaries acknowledges and agrees that, as of the Closing, the Names shall be the exclusive 

property of the Buyer as of the Closing (subject to the rights of Gemstone and its Subsidiaries pursuant to 

this Section 6.15), and that any and all goodwill arising in connection with the use of the Names inures 

solely to Buyer, and that all such use is subject to quality standards set by Buyer and communicated to 

Gemstone and its Subsidiaries from time to time. The right of Gemstone and its Subsidiaries to use the 

Names shall be subject to Buyer’s control of the character and quality of the goods and services provided 

by Gemstone and its Subsidiaries in association with the Names, and such quality control obligations 

shall be met so long as the goods and services provided by Gemstone and its Subsidiaries in association 

with the Names are of a character and quality substantially equivalent to or better than the quality of those 

provided by Gemstone and its Subsidiaries in the twelve (12) month period prior to the Closing. No later 

than the Termination Date For Use of Name, Sellers shall cease all usage of the Names, including (i) 

filing appropriate documents with the Bankruptcy Court changing the caption of the Bankruptcy Case to 

one that does not contain the name of any of the Transferred Intellectual Property or any similar or 

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confusing name and (ii) filing amendments with the appropriate Governmental Authorities changing their 

respective corporate names, “doing business as” name, trade name, and any other similar corporate 

identifier to one that does not contain the name of any of the Transferred Intellectual Property or any 

similar or confusing name.

6.16 Notification of Certain Matters. 

(a) Gemstone will promptly notify Buyer of: (i) any written notice or other 

communication from any Person alleging that the consent of such Person is or may be required in 

connection with the Transactions contemplated by this Agreement, except with respect to any consent the 

failure of which to be obtained would not be, or reasonably be expected to be, material to the Acquired 

Asset; (ii) any written notice or other communication from any Governmental Entity (other than the 

Chapter 11 Cases) related to or in connection with the Transactions contemplated by this Agreement; and 

(iii) promptly upon discovery thereof, any material variances from, or the existence or occurrence of any 

event, fact or circumstance arising after the execution of this Agreement that would reasonably be 

expected to cause any of the representations and warranties contained in Article 4 to be untrue or 

inaccurate in a manner that would reasonably be expected to cause the conditions set forth in Section 7.1

not to be satisfied.

(b) Sellers shall use their reasonable best efforts to deliver to Buyer the following 

additional information (as of the Agreement Date) within ten (10) Business Days after the Agreement 

Date a true and complete list of each Necessary Consent.

6.17 Confidentiality. 

(a) Upon and for a period of one (1) year following the Closing, Sellers shall, and 

shall cause their respective Affiliates and representatives to, keep confidential all non-public information 

regarding the Acquired Assets, except for (i) such public disclosure as Sellers and its counsel may 

reasonably determine to be required under any applicable Law, regulation, stock exchange requirement or 

Order (provided that Sellers will provide Buyer with prior written notice of any such disclosure to the 

extent permitted by applicable Law and, where applicable and reasonably requested by Buyer and at 

Buyer’s sole cost and expense, Sellers will use commercially reasonable efforts to cooperate with Buyer 

to obtain a protective order or other confidential treatment or otherwise limit the scope of information that 

is required to be disclosed, and Sellers shall only disclose that portion of such information as Sellers are 

advised by its in counsel in writing is required to be disclosed) and (ii) disclosure to its representatives 

solely to the extent that such parties need to know such information and agree to be bound by 

confidentiality obligations no less protective than those set forth in this Section 6.17(a). Sellers will be 

responsible for any disclosure by their respective Affiliates and representatives of any such non-public 

information regarding the Acquired Assets to the same degree as if such disclosure were made by Sellers.

(b) Subject to Section 6.4, during the Interim Period, each of Buyer and Seller shall, 

and shall cause their respective Affiliates, and representatives to, abide by the confidentiality provisions 

set forth in that certain Confidentiality Agreement, dated as of January 24, 2019, by and between 

Gemstone and The Children’s Place, Inc.

6.18 Communication With Other Bidders. Unless prohibited by Law, Buyer (and its 

representatives) may, with the prior written approval of Sellers (which such approval may be granted or 

withheld in Sellers’ sole discretion) initiate, participate or agree to participate in any meeting or engage in 

substantive discussion with any potential bidders in the Auction regarding this Agreement, the 

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Transactions, the Business, the Auction or any matter related thereto (including discussions regarding 

potential joint bidding arrangements or stalking horse bids with respect to specific parts of the Business).

6.19 Personally Identifiable Information. Buyer acknowledges that the Acquired 

Assets include personally identifiable information within the meaning of Section 363(b) of the 

Bankruptcy Code, including personal information about the Sellers’ customers (such Acquired Assets 

collectively, “PII”). In connection therewith, from and after the Closing, Buyer shall: (a) maintain 

appropriate security controls and procedures (technical, operational, managerial and otherwise) to protect 

PII, (b) abide by all Laws applicable to PII and (c) take such further actions with respect to PII as may be 

agreed between the Parties in their discretion. Buyer further agrees that it shall (i) abide by Sellers’ 

privacy policies and privacy-related covenants made in Sellers’ terms of service that were in effect as of 

the Petition Date, with respect to such PII (it being understood that Buyer may revise such policies and 

terms as provided by such policies and terms), (ii) respect prior requests of customers to opt out of receipt 

of marketing messages (to the extent Sellers make Buyer aware of such requests; provided, that Buyer 

shall seek to obtain such information from Sellers) and (iii) use personal information only for the 

purposes of continuing operations in respect of the Acquired Assets following the Closing and continuing 

to provide similar goods and services to customers, including marketing the products and services related 

to Acquired Assets or as otherwise permitted by Sellers’ privacy policies or privacy-related covenants

made in Sellers’ terms of service.

6.20 Customer Data. 

(a) Promptly following the Subsequent Closing Date, Sellers shall deliver to Buyer 

(in the same format that Customer Data is required to be delivered at the Closing pursuant to Section 

3.1(b)(iii)) a copy of any Customer Data collected between the Closing and the Subsequent Closing Date 

as a result of the use of the Specified Domain Names as contemplated by Section 6.15.

(b) From the Closing Date through the Subsequent Closing Date, Sellers will make 

publicly available a new privacy policy that expressly provides that any Personal Information may be 

shared with, and transferred to, Buyer, as the acquiror of the Acquired Assets, and will be subject to 

Buyer’s publicly available privacy policy.

ARTICLE 7

CONDITIONS TO OBLIGATIONS OF THE PARTIES

7.1 Conditions Precedent to Obligations of Buyer. The obligation of Buyer to 

consummate the Transactions is subject to the satisfaction (or written waiver by Buyer in Buyer’s sole 

discretion) at or prior to the Closing Date of each of the following conditions:

(a) Accuracy of Representations and Warranties. The representations and warranties 

of Sellers (i) set forth in Section 4.1 (Organization) and Section 4.2 (Due Authorization) (collectively, 

the “Seller Fundamental Representations”) shall be true and correct in all respects and (ii) set forth in 

Article 4 (other than the Seller Fundamental Representations) shall be true and correct (disregarding all 

qualifications or limitations as to “materiality” or “Sellers Material Adverse Effect” and words of similar 

import set forth therein), except where the failure of such representations or warranties to be true and 

correct would not reasonably be expected to have a Sellers Material Adverse Effect, in the case of each of 

clauses (i) and (ii), as of the Agreement Date and at and as of the Closing as though made at and as of the 

Closing (in each case, except to the extent expressly made as of another date, in which case as of such 

date as if made at and as of such date).

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(b) Performance of Obligations. Sellers shall have performed in all material respects 

all obligations and agreements contained in this Agreement required to be performed by them on or prior 

to the Closing Date.

(c) Officer’s Certificate. Buyer shall have received a certificate, dated the Closing 

Date, of an executive officer of each Seller to the effect that the conditions specified in Section 7.1(a) and 

Section 7.1(b) above have been fulfilled and/or waived.

(d) Antitrust Approval. All applicable waiting periods under the HSR Act related to 

the Transactions shall have expired or been terminated, if required.

(e) Sale Order. After notice and a hearing as defined in Section 102(1) of the 

Bankruptcy Code, the Bankruptcy Court shall have entered the Sale Order, and such Sale Order shall be 

in full force and effect and shall not have been reversed, stayed, modified, amended or vacated, and as to 

which the time to appeal or seek certiorari or move for a vacatur, new trial, reargument or rehearing has 

expired, and no appeal or petition for certiorari or other proceedings for a vacatur, new trial, reargument 

or rehearing has been timely taken, or as to which any appeal that has been taken or any petition for 

certiorari that has been timely filed has been withdrawn or resolved by the highest court to which the 

Order was appealed or from which certiorari was sought or the vacatur, new trial, reargument or rehearing 

shall have been denied or resulted in no modification of such Order. The Sale Order shall provide that the 

Sale Term as defined in the Liquidation Agreement shall cease on or before April 30, 2019 without 

further amendment.

(f) No Order. No court or other Governmental Entity has issued, enacted, entered, 

promulgated or enforced any Law or Order (that is final and non-appealable and that has not been 

vacated, withdrawn or overturned) restraining, enjoining or otherwise prohibiting the Transactions 

contemplated by this Agreement.

(g) Assumed Contracts. The Bankruptcy Court shall have approved and authorized 

the assumption and assignment of the Assumed Contracts.

7.2 Conditions Precedent to the Obligations of Sellers. The obligation of Sellers to 

consummate the Transactions is subject to the satisfaction (or written waiver by Sellers) at or prior to the 

Closing Date of each of the following conditions:

(a) Accuracy of Representations and Warranties. The representations and warranties 

of Buyer (i) set forth in Section 5.1 (Organization) and Section 5.2 (Due Authorization), shall be true and 

correct in all material respects and (ii) set forth in Article 5 (other than those described in clause (i)) shall 

be true and correct (disregarding all qualifications or limitations as to “materiality” or “Buyer Material 

Adverse Effect” and words of similar import set forth therein), except where the failure of such 

representations or warranties to be true and correct would not reasonably be expected to have a Buyer 

Material Adverse Effect, in the case of each of clauses (i) and (ii), as of the Agreement Date and at and as 

of the Closing as though made at and as of the Closing (in each case, except to the extent expressly made 

as of another date, in which case as of such date as if made at and as of such date).

(b) Performance of Obligations. Buyer shall have performed in all material respects 

all obligations and agreements contained in this Agreement required to be performed by it on or prior to 

the Closing Date.

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(c) Officer’s Certificate. Sellers shall have received a certificate, dated the Closing 

Date, of an executive officer of Buyer to the effect that the conditions specified in Section 7.2(a) and 

Section 7.2(b) above have been fulfilled and/or waived.

(d) Antitrust Approval. All applicable waiting periods under the HSR Act related to 

the Transactions shall have expired or been terminated, if required.

(e) Sale Order. After notice and a hearing as defined in Section 102(1) of the 

Bankruptcy Code, the Bankruptcy Court shall have entered the Sale Order, and such Sale Order shall be 

in full force and effect and shall not have been reversed, stayed, modified, amended or vacated, and as to 

which the time to appeal or seek certiorari or move for a vacatur, new trial, reargument or rehearing has 

expired, and no appeal or petition for certiorari or other proceedings for a vacatur, new trial, reargument 

or rehearing has been timely taken, or as to which any appeal that has been taken or any petition for 

certiorari that has been timely filed has been withdrawn or resolved by the highest court to which the 

Order was appealed or from which certiorari was sought or the vacatur, new trial, reargument or rehearing 

shall have been denied or resulted in no modification of such Order.

(f) No Order. No court or other Governmental Entity has issued, enacted, entered, 

promulgated or enforced any Law or Order (that is final and non-appealable and that has not been 

vacated, withdrawn or overturned) restraining, enjoining or otherwise prohibiting the Transactions 

contemplated by this Agreement.

7.3 Frustration of Conditions Precedent. None of Buyer or Sellers may rely on the 

failure of any condition set forth in this Article 7, as applicable, to be satisfied if such failure was caused 

by such Party’s failure to use, as required by this Agreement, its reasonable best efforts to consummate 

the Transactions contemplated hereby.

ARTICLE 8

TERMINATION

8.1 Termination of Agreement. This Agreement may be terminated and the 

Transactions abandoned at any time prior to the Closing:

(a) by written agreement of Sellers and Buyer;

(b) by either Sellers or Buyer:

(i) if there shall be any Law that makes consummation of the Transactions 

illegal or otherwise prohibited, or if any Order permanently restraining, prohibiting or enjoining Buyer or 

Sellers from consummating the Transactions is entered and such Order shall become final, provided,

however, that no termination may be made by a Party under this Section 8.1(b)(i) if the issuance of such 

Order was caused by the breach or action or inaction of such Party;

(ii) subject to Section 6.2, upon the filing of a motion by a Seller to approve 

an Alternative Transaction or the Bankruptcy Court’s entry of an order approving an Alternative 

Transaction; or

(iii) if (A) a trustee or an examiner with expanded powers is appointed in any 

of the Chapter 11 Cases or (B) any of the Chapter 11 Cases is dismissed or converted to a case under 

Chapter 7 of the Bankruptcy Code;

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(c) by Buyer if (i) there shall have been a breach by any Seller of any of its 

representations, warranties, covenants or agreements contained in this Agreement, which breach would 

result in the failure to satisfy one or more of the conditions set forth in Section 7.1, or (ii) any other event 

or condition shall result in any Seller being incapable of satisfying one or more conditions set forth in 

Section 7.1, and in either case such breach or other event or condition shall be incapable of being cured 

or, if capable of being cured, shall not have been cured within the earlier of twenty (20) days after written 

Notice thereof shall have been received by Sellers and the Outside Transaction Date; provided, that as of 

such date, Buyer is not in breach of this Agreement, which breach would result in the failure to satisfy 

one or more of the conditions set forth in Section 7.2;

(d) by Buyer if, subject to Section 6.2, (i) Sellers comply with the Bidding 

Procedures and accept a Successful Bid (as defined in the Bidding Procedures) from a Person other than 

Buyer or its permitted transferee for the Acquired Assets or (ii) Sellers enter into an Alternative 

Transaction;

(e) by Sellers, if (i) there shall have been a breach by Buyer of any of its 

representations, warranties, covenants or agreements contained in this Agreement, which breach would 

result in the failure to satisfy one or more of the conditions set forth in Section 7.2, or (ii) any other event 

or condition shall result in Buyer being incapable of satisfying one or more conditions set forth in 

Section 7.2, and in either case such breach or other event or condition shall be incapable of being cured 

or, if capable of being cured, shall not have been cured within the earlier of twenty (20) days after written 

Notice thereof shall have been received by Buyer and the Outside Transaction Date; provided that as of 

such date, any Seller is not in breach of this Agreement, which breach would result in the failure to satisfy 

one or more of the conditions set forth in Section 7.1;

(f) by Buyer if a Sale Order has not been entered on or before March 8, 2019, and by 

Buyer or Sellers if the Closing shall not have occurred on or before April 1, 2019 (the “Outside 

Transaction Date”); provided, however, that a Party shall be permitted to terminate this Agreement 

pursuant to this Section 8.1(f) only if such Party is not itself in breach of any of its representations, 

warranties, covenants or agreements contained herein, which breach would result in the failure of a 

condition set forth in Article 7; 

(g) by Sellers if the governing body of any Seller determines, upon advice from 

outside legal counsel, that proceeding with the Transactions or failing to terminate this Agreement would 

violate its or such governing body’s fiduciary obligations under applicable Law, including to pursue an 

Alternative Transaction. For the avoidance of doubt, and subject to the terms and conditions of this 

Agreement (including Buyer’s right to terminate this Agreement in accordance with this Section 8.1), 

Sellers retain the right to pursue any transaction or restructuring strategy that, in Sellers’ business 

judgment, will maximize the value of their estates;

(h) by Sellers if Buyer shall not have deposited the full Deposit, in an aggregate 

amount equal to $7,600,000, by 11:59 p.m. New York time on March 4, 2019; and

(i) by written notice from Buyer to Gemstone, if Buyer is neither the Successful 

Bidder nor the Backup Bidder following the Auction.

8.2 Consequences of Termination. In the event this Agreement is terminated 

pursuant to Section 8.1(e) or otherwise terminated pursuant to Section 8.1 by Buyer and could have been 

terminated at the same time by Seller pursuant to Section 8.1(e), Sellers shall retain the Deposit; provided, 

however, that retention of the Deposit shall constitute liquidated damages and the sole and exclusive 

remedy of Seller in the event of a termination hereunder and shall limit Seller’s remedies against Buyer in 

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any respect of any claim against Buyer arising under this Agreement or otherwise (subject to the last 

sentence of this Section 8.2). In the event of all other terminations of this Agreement prior to Closing, the 

Deposit shall be refunded to the Buyer. In the event of any termination of this Agreement by either or 

both of Buyer and Sellers pursuant to Section 8.1, written Notice thereof shall be given by the terminating 

Party to the other Parties hereto, specifying the provision hereof pursuant to which such termination is 

made, this Agreement shall thereupon terminate and become void and of no further force and effect (other 

than Section 6.4 (Public Announcements), this Section 8.2 (Consequences of Termination) and Article 9

(Miscellaneous) and to the extent applicable in respect of such Sections and Article, Article 1

(Definitions)), and the Transactions shall be abandoned without further action of the Parties hereto, except 

(a) for application of the Deposit as set forth in the foregoing sentence and (b) that such termination shall 

not relieve any Party of any Liability for Fraud or Willful Breach of this Agreement.

ARTICLE 9

MISCELLANEOUS

9.1 Expenses. Except as set forth in this Agreement and whether or not the 

Transactions are consummated, each Party hereto shall bear all costs and expenses incurred or to be 

incurred by such Party in connection with this Agreement and the consummation of the Transactions.

9.2 Assignment. Neither this Agreement nor any of the rights or obligations 

hereunder may be assigned by Sellers without the prior written consent of Buyer, or by Buyer without the 

prior written consent of Sellers; provided, that Buyer may assign its rights and obligations to a Designated 

Purchaser so long as Buyer remains primarily liable for its obligations hereunder. Subject to the 

foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties hereto and their 

respective successors and permitted assigns including any liquidating trustee, responsible Person or 

similar representative for Sellers or Sellers’ estate appointed in connection with the Chapter 11 Cases.

9.3 Parties in Interest. This Agreement shall be binding upon and inure solely to the 

benefit of Sellers (and their estates), Buyer (and its Designated Purchasers) and their respective 

successors, or permitted assigns, and nothing in this Agreement, express or implied, is intended to or shall 

confer upon any other Person any rights, benefits or remedies of any nature whatsoever under or by 

reason of this Agreement except as expressly set forth herein.

9.4 Notices. All notices, demands, requests, consents, approvals or other 

communications (collectively, “Notices”) required or permitted to be given hereunder or that are given 

with respect to this Agreement shall be in writing and shall be personally served, delivered by a nationally 

recognized overnight delivery service with charges prepaid, or transmitted by hand delivery, or facsimile 

or electronic mail, addressed as set forth below, or to such other address as such Party shall have specified 

most recently by written Notice. Notice shall be deemed given on the date of service or transmission if 

personally served or transmitted by facsimile or electronic mail with confirmation of receipt; provided

that if delivered or transmitted on a day other than a Business Day or after 5:00 p.m. New York time, 

notice shall be deemed given on the next Business Day. Notice otherwise sent as provided herein shall be 

deemed given on the next Business Day following timely deposit of such Notice with an overnight 

delivery service:

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If to any Seller: Gymboree Group, Inc.

71 Stevenson Street, Suite 2200

San Francisco, CA 94105

Attention: Jon W. Kimmins and Kimberly Holtz MacMillan

Email: jon_kimmins@gymboree.com and

 kimberly_macmillan@gymboree.com

With copies to: Milbank LLP

55 Hudson Yards

New York, NY 10001

Attention: Evan R. Fleck and Scott W. Golenbock

Email: efleck@milbank.com and sgolenbock@milbank.com 

If to Buyer: TCP Brands, LLC

c/o The Children’s Place, Inc.

500 Plaza Drive, 4th Floor

Secaucus, NJ 070942

Attention: Bradley P. Cost, Esq.,

 Senior Vice President and General Counsel

Email: bcost@childrensplace.com

and

Attention: Robert A. Karpf, Esq., 

 Group Vice President and Deputy General Counsel

Email: rkarpf@childrensplace.com

With copies to: Torys LLP

1114 Ave of the Americas, 23rd Floor,

New York, NY 10036

Attention: Alison D. Bauer

Email: abauer@torys.com

and

Attention: Edward Fan

Email: efan@torys.com

Paul, Weiss, Rifkind, Wharton & Garrison LLP

1285 Avenue of the Americas

New York, NY 10019-6064

Attention: Robert Britton

Email: rbritton@paulweiss.com

Rejection of or refusal to accept any Notice, or the inability to deliver any Notice because of 

changed address of which no Notice was given, shall be deemed to be receipt of the Notice as of the date 

of such rejection, refusal or inability to deliver.

9.5 Choice of Law. This Agreement shall be construed and interpreted, and the 

rights of the Parties shall be determined, in accordance with the Laws of the State of New York, without 

giving effect to any provision thereof that would require or permit the application of the substantive laws 

of any other jurisdiction.

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9.6 Entire Agreement; Amendments and Waivers. This Agreement, the Sale Order, 

and all Transaction Documents and all certificates and instruments delivered pursuant hereto and thereto 

constitute the entire agreement among the Parties pertaining to the subject matter hereof and supersede all 

prior agreements, understandings, negotiations, and discussions, whether oral or written, of the Parties. 

This Agreement may be amended, supplemented or modified, and any of the terms, covenants, 

representations, warranties or conditions may be waived, only by a written instrument executed by Buyer 

and Sellers, or in the case of a waiver, by the Party waiving compliance. No waiver of any of the 

provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision hereof 

(whether or not similar), and no such waiver shall constitute a continuing waiver unless otherwise 

expressly provided.

9.7 Counterparts; Facsimile and Electronic Signatures. This Agreement may be 

executed in two or more counterparts, each of which shall be deemed an original, and all of which 

together shall constitute one and the same instrument. Counterparts to this Agreement may be delivered 

via facsimile or electronic mail. In proving this Agreement, it shall not be necessary to produce or 

account for more than one such counterpart signed by the Party against whom enforcement is sought.

9.8 Severability. The invalidity or unenforceability of any provision of this 

Agreement shall not affect the validity or enforceability of any other provisions of this Agreement. In the 

event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent 

jurisdiction to be illegal, invalid or unenforceable, such provisions shall be limited or eliminated only to 

the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect.

9.9 Headings. The table of contents and the headings of the Articles and Sections 

herein are inserted for convenience of reference only and are not intended to be a part of, or to affect the 

meaning or interpretation of, this Agreement.

9.10 Exclusive Jurisdiction and Specific Performance.

(a) Subject to Section 9.10(b), without limiting any Party’s right to appeal any order 

of the Bankruptcy Court, (i) the Bankruptcy Court shall retain exclusive jurisdiction to enforce the terms 

of this Agreement and to decide any Claims or disputes which may arise or result from, or be connected 

with, this Agreement, any breach or default hereunder, or the Transactions, and (ii) any and all 

Proceedings related to the foregoing shall be filed and maintained only in the Bankruptcy Court, and the 

Parties hereby consent to and submit to the jurisdiction and venue of the Bankruptcy Court and shall 

receive Notices at such locations as indicated in Section 9.4. For the avoidance of doubt, this 

Section 9.10 shall not apply to any Claims that Buyer or its Affiliates may have against any third party 

following the Closing.

(b) Notwithstanding anything herein to the contrary, in the event the Chapter 11 

Cases of Sellers are closed or dismissed, the Parties hereby agree that all Claims or disputes which may 

arise or result from, or be connected with, this Agreement, any breach or default hereunder, or the 

Transactions, shall be heard and determined exclusively in any federal court sitting in the Borough of 

Manhattan in the City of New York or, if that court does not have subject matter jurisdiction, in any state 

court located in the City and County of New York (and, in each case, any appellate court thereof), and the 

Parties hereby consent to and submit to the jurisdiction and venue of such courts.

(c) Buyer acknowledges that Sellers would be damaged irreparably in the event that 

the terms of this Agreement are not performed by Buyer in accordance with its specific terms or 

otherwise breached or Buyer fails to consummate the Closing and that, in addition to any other remedy 

that Sellers may have under law or equity, Sellers shall be entitled to seek injunctive relief to prevent 

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breaches of the terms of this Agreement and to seek to enforce specifically the terms and provisions 

hereof that are required to be performed by Buyer. Buyer further agrees that no Seller shall be required to 

obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtaining 

any remedy referred to in this Section 9.10, and irrevocably waives any right it may have to require the 

obtaining, furnishing or posting of any such bond or similar instrument.

(d) Sellers acknowledge that Buyer would be damaged irreparably in the event that 

the terms of this Agreement are not performed by Sellers in accordance with its specific terms or 

otherwise breached or Sellers fail to consummate the Closing and that, in addition to any other remedy 

that Buyer may have under law or equity, Buyer shall be entitled to seek injunctive relief to prevent 

breaches of the terms of this Agreement and to seek to enforce specifically the terms and provisions 

hereof that are required to be performed by Sellers. Each Seller further agrees that Buyer shall not be 

required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to 

obtaining any remedy referred to in this Section 9.10, and irrevocably waives any right it may have to 

require the obtaining, furnishing or posting of any such bond or similar instrument.

9.11 WAIVER OF RIGHT TO TRIAL BY JURY. SELLERS AND BUYER 

HEREBY WAIVE TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT 

THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY PROCEEDING DIRECTLY OR 

INDIRECTLY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE 

TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR 

ANY OTHER THEORY). FOR THE AVOIDANCE OF DOUBT, THIS SECTION 9.11 SHALL NOT 

APPLY TO ANY CLAIMS THAT BUYER OR ITS AFFILIATES MAY HAVE AGAINST ANY 

THIRD PARTY FOLLOWING THE CLOSING.

9.12 Survival. Each and every representation and warranty contained in this 

Agreement shall expire and be of no further force and effect as of the Closing. Each and every covenant 

and agreement contained in this Agreement (other than the covenants contained in this Agreement which 

by their terms are to be performed (in whole or in part) by the Parties following the Closing (each, a 

“Post-Closing Covenant”)) shall expire and be of no further force and effect as of the Closing. Each PostClosing Covenant shall survive the Closing until the earlier of (a) performance of such Post-Closing 

Covenant in accordance with this Agreement or, (b) (i) if time for performance of such Post-Closing 

Covenant is specified in this Agreement, sixty (60) days following the expiration of the time period for 

such performance or (ii) if time for performance of such Post-Closing Covenant is not specified in this 

Agreement, the expiration of the applicable statute of limitations with respect to any claim for any failure 

to perform such Post-Closing Covenant; provided that if a written notice of any claim with respect to any 

Post-Closing Covenant is given prior to the expiration thereof then such Post-Closing Covenant shall 

survive until, but only for purposes of, the resolution of such claim by final, non-appealable judgment or 

settlement.

9.13 Computation of Time. In computing any period of time prescribed by or 

allowed with respect to any provision of this Agreement that relates to Sellers or the Chapter 11 Cases, 

the provisions of rule 9006(a) of the Federal Rules of Bankruptcy Procedure shall apply.

9.14 Time of Essence. Time is of the essence of this Agreement.

9.15 Non-Recourse. No past, present or future director, manager, officer, employee, 

incorporator, member, partner or equity holder of any Seller shall have any Liability for any Liabilities of 

such Seller under this Agreement or for any Claim based on, in respect of, or by reason of the 

Transactions.

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9.16 Disclosure Schedules. Except as set forth in this Agreement, the inclusion of 

any information (including dollar amounts) in Disclosure Schedules shall not be deemed to be an 

admission or acknowledgment by any Party that such information is required to be listed on such 

section of the relevant schedule or is material to or outside the Ordinary Course of Business of any 

Person. The information contained in this Agreement, the exhibits hereto and the Disclosure Schedules is 

disclosed solely for purposes of this Agreement, and no information contained herein or therein shall be 

deemed to be an admission by any Party to any third party of any matter whatsoever (including any 

violation of any Law or breach of contract). Unless the context otherwise requires, all capitalized terms 

used in the Disclosure Schedules shall have the respective meanings assigned in this Agreement. The 

Disclosure Schedules set forth items of disclosure with specific reference to the particular Section or 

subsection of this Agreement to which the information in the Disclosure Schedules relates; provided, 

however, that any information set forth in one Section of the Disclosure Schedules will be deemed to 

apply to each other section or subsection thereof to which its relevance is reasonably apparent on its face.

9.17 Sellers’ Representative; Dealings Among Sellers. By its execution and delivery 

of this Agreement, each Seller hereby irrevocably constitutes and appoints Gemstone as its true and 

lawful agent and attorney-in-fact (the “Sellers’ Representative”), with full power of substitution to act in 

such Seller’s name, place and stead with respect to all Transactions and all terms and provisions of this 

Agreement, and to act on such Seller’s behalf in any Proceeding, and to do or refrain from doing all such 

further acts and things, and execute all such documents as Sellers’ Representative shall deem necessary or 

appropriate in connection with the Transactions. The appointment of Sellers’ Representative shall be 

deemed coupled with an interest and shall be irrevocable, and Buyer, its Affiliates and any other Person 

may conclusively and absolutely rely, without inquiry, upon any action of Sellers’ Representative on 

behalf of Sellers in all matters referred to herein or contemplated hereby including any direction regarding 

the amount of any payment to any Seller. Buyer shall have no obligation of any nature whatsoever for 

determining any allocation of any payments among Sellers. Without limiting the generality of the 

foregoing, absent specific direction by Sellers’ Representative, Buyer shall be deemed to have fulfilled its 

obligations hereunder absolutely with respect to any amounts payable by it under or pursuant to this 

Agreement or the delivery of any instruments if Buyer shall pay any such amounts or deliver such 

instruments to Sellers’ Representative. All Notices delivered by Buyer (whether prior to or following the 

Closing) to Sellers’ Representative (whether pursuant hereto or otherwise) for the benefit of Sellers shall 

constitute valid and timely Notice to all of Sellers.

9.18 Mutual Drafting. This Agreement is the result of the joint efforts of Buyer and 

Sellers, and each provision hereof has been subject to the mutual consultation, negotiation and agreement 

of the Parties and there is to be no construction against any Party based on any presumption of that 

Party’s involvement in the drafting thereof.

9.19 Fiduciary Obligations. Nothing in this Agreement, or any document related to 

the Transactions contemplated hereby, without limiting in any way Buyer’s rights and remedies set forth 

in this Agreement, will require any Seller or any of their respective governing bodies, directors, officers 

or members, in each case, in their capacity as such, to take any action, or to refrain from taking any 

action, to the extent inconsistent with their fiduciary obligations.

9.20 Releases. Effective as of the Closing: (a) Sellers hereby release Buyer and its 

Affiliates and the equityholders, directors, managers, officers, employees, members, partners, limited 

partners, agents and representatives of Buyer and its Affiliates (collectively, the “Buyer Released 

Parties”) from any and all Liabilities, actions, rights of action, contracts, indebtedness, obligations, 

Claims, causes of action, suits, damages, demands, costs, expenses and attorneys’ fees whatsoever, of 

every kind and nature, known or unknown, disclosed or undisclosed, accrued or unaccrued, existing at 

any time, in all circumstances arising prior to Closing, that any Seller or its respective Affiliates and all 

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48

such Persons’ respective successors and assigns, have or may have against any of Buyer Released Parties; 

provided that the foregoing shall not release any rights under this Agreement or any other Transaction 

Document; and (b) Buyer hereby releases Sellers and their respective Affiliates, and the equityholders, 

directors, managers, officers, employees, members, partners, limited partners, agents and representatives 

of Sellers and their respective Affiliates (collectively, the “Sellers Released Parties”) from any and all 

Liabilities, actions, rights of action, contracts, indebtedness, obligations, Claims, causes of action, suits, 

damages, demands, costs, expenses and attorneys’ fees whatsoever, of every kind and nature, known or 

unknown, disclosed or undisclosed, accrued or unaccrued, existing at any time, in all circumstances 

arising prior to Closing, that Buyer and its Affiliates and all of its and their respective successors and 

assigns, have or may have against any of Sellers Released Parties in relation to Gymboree Holding 

Corporation, a Delaware corporation, or any of its Subsidiaries (including Sellers), or the Transactions 

contemplated hereby; provided that the foregoing shall not release any rights under this Agreement or any 

other Transaction Document.

[Remainder of Page Intentionally Left Blank]

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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly 

authorized officers of Sellers and Buyer as of the date first above written.

BUYER:

TCP BRANDS, LLC

By:

Name: Bradley Cost

Title: Senior Vice President and General Counsel

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SELLERS:

GYMBOREE GROUP, INC.

By:

Name:

Title:

GYMBOREE RETAIL STORES, LLC

By:

Name:

Title:

GYM-CARD, LLC

By:

Name:

Title:

GYMBOREE MANUFACTURING, INC.

By:

Name:

Title:

GYMBOREE DISTRIBUTION, INC.

By:

Name:

Title:

GYMBOREE OPERATIONS, INC.

By:

Name:

Title:

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GYMBOREE ISLAND, LLC

By:

Name:

Title:

GYM-MARK, INC.

By:

Name:

Title:

GYMBOREE WHOLESALE, INC.

By:

Name:

Title:

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Exhibit D

JJ Proposed Assumption and Assignment Notice

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Counterparty Contract Description

Eva Chen Master Services Agreement, dated as of May 17, 2018, by and between Eva Chen and 

Gymboree Group, Inc.

Reyn Spooner, Inc. License Agreement, dated as of December 3, 2018, by and between Reyn Spooner, 

Inc. and Gymboree Manufacturing, Inc. 

Aerin LLC Co-Branding Licensing Agreement, dated as of April 5, 2018, by and between Aerin 

LLC and Gymboree Group, Inc. and Gymboree Manufacturing, Inc.

Hudson’s Bay 

Company/Saks Fifth 

Avenue/Saks Fifth Avenue 

Off 5th

Vendor Agreement and Terms and Conditions, dated as of July 20, 2017, by and 

between Hudson’s Bay Company or Saks Fifth Avenue, d/b/a Saks Fifth Avenue and 

Saks Fifth Avenue OFF 5TH through its affiliates.

Zappos Merchandising, 

Inc.

Zappos Merchandising, Inc. Vendor Agreement, dated as of January 11, 2018, by and 

between Gymboree Group, Inc. and Zappos Merchandising, Inc.

Universal Studios 

Licensing LLC

Master Merchandising License Agreement, dated October 1, 2017, by and between 

Universal Studios Licensing LLC and Gymboree Manufacturing, Inc. 

Schedule B, dated as of January 1, 2019, to Master Merchandising License Agreement, 

dated October 1, 2017, by and between Universal Studios Licensing LLC and 

Gymboree Manufacturing, Inc. (The Voyage of Doctor Dolittle – Contract No. 

201302594).

North Bay Distribution, 

Inc.

Logistics Service Agreement, dated April 20, 2016, by and between North Bay 

Distribution, Inc. and Gymboree Manufacturing, Inc., as amended by that certain First 

Amendment. 

OneStop Internet, Inc. Services Agreement, dated as of January 29, 2018, by and between OneStop Internet, 

Inc. and Gymboree Group, Inc. 

Zulily, Inc. Vendor Terms and Conditions, dated February 12, 2015, by and between Zulily, Inc. 

and Gymboree Group, Inc. (successor-in-interest to The Gymboree Corporation).

UC4 Corporation, Inc. Consulting Agreement, dated September 3, 2009, by and between UC4 Corporation, 

Inc. and The Gymboree Corporation

Splash Business 

Intelligence, Inc. 

Splash Customer Order Form and Terms and Conditions, dated October 17, 2016, by 

and between Splash Business Intelligence, Inc. and The Gymboree Corporation. 

Lectra USA Inc. Equipment Purchase, Software License and Services Agreement, dated January 2017, 

by and between Lectra USA Inc. and The Gymboree Corporation. 

AppWorx Corporation Software License and Support Services Agreement and Order Form and the AppWorx

Corporation Software License and Support Services Terms and Conditions, dated May 

8, 2003, by and between AppWorx Corporation and The Gymboree Corporation and 

related Order Forms. 

SAP American Software License Agreement by and between SAP America and The Gymboree 

Corporation, and related schedules, orders and capital authorization request forms. 

Shadow Public Relations, 

Inc.

Services Agreement, dated November 1, 2018, by and between Shadow Public 

Relations, Inc. and Gymboree Group, Inc. 

Corte Madera Village, 

LLC

Lease Agreement, made as of July 18, 2002, by and between Corte Madera Village, 

LLC and Gymboree Retail Stores, LLC, as amended.

The Retail Property Trust Lease, dated April 26, 2013, by and between The Retail Property Trust and Gymboree 

Retail Stores, LLC.

Bellevue Square, LLC Lease, dated June 24, 2002, by and between Bellevue Square, LLC and Gymboree 

Retail Stores, LLC, as amended.

Fashion Show Mall LLC Lease, dated April 12, 2013, by and between Fashion Show Mall LLC and Gymboree 

Retail Stores, LLC.

Fashion Mall Partners, L.P. Lease, dated July 25, 2002, by and between Fashion Mall Partners, L.P. and Gymboree 

Retail Stores, LLC, as amended.

The Grove at Farmers 

Market, LLC

Retail Center Lease Agreement, dated June 4, 2002, by and between The Grove at 

Farmers Market, LLC and Gymboree Retail Stores, LLC, as amended.

Bridgewater Commons 

Mall II, LLC

Lease, dated April 13, 2017, by and between Bridgewater Commons Mall II, LLC and 

Gymboree Retail Stores, LLC, as amended.

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Counterparty Contract Description

Short Hills Associates, 

L.L.C.

Lease, dated December 20, 2011, by and between Short Hills Associates, L.L.C. and 

Gymboree Retail Stores, LLC, as amended.

TM Willow Bend Shops, 

L.P.

Lease, dated July 2, 2002, by and between TM Willow Bend Shops, L.P. and 

Gymboree Retail Stores, LLC, as amended.

Taubman Cherry Creek 

Shopping Center, L.L.C.

Lease, dated May 27, 2014, by and between Taubman Cherry Creek Shopping Center, 

L.L.C. and Gymboree Retail Stores, LLC, as amended.

Twelve Oaks Mall, LLC Lease Agreement, dated July 2, 2002, by and between Twelve Oaks Mall, LLC and 

Gymboree Retail Stores, LLC, as amended.

Merrick Park LLC Lease, dated May 16, 2014, by and between Merrick Park LLC and Gymboree Retail 

Stores, LLC, as amended.

Simon Property Group 

(Texas), L.P.

Lease, dated February 28, 2014, by and between Simon Property Group (Texas), L.P. 

and Gymboree Retail Stores, LLC, as amended.

Fashion Valley Mall, LLC Lease, dated April 24, 2018, by and between Fashion Valley Mall, LLC and Gymboree 

Retail Stores, LLC.

Natick Mall, LLC Lease, dated March 5, 2004, by and between Natick Mall, LLC and Gymboree Retail 

Stores, LLC, as amended.

SA Galleria IV, L.P. Lease, dated July 2, 2014, by and between SA Galleria IV, L.P. and Gymboree Retail 

Stores, LLC, as amended.

Tampa Westshore 

Associates Limited 

Partnership

Lease, dated December 28, 2012, by and between Tampa Westshore Associates 

Limited Partnership and Gymboree Retail Stores, LLC, as amended.

Woodfield Mall LLC Lease, dated November 21, 2012, by and between Woodfield Mall LLC and 

Gymboree Retail Stores, LLC.

Saint Louis Galleria L.L.C. Lease, dated April 17, 2008, by and between Saint Louis Galleria L.L.C. and 

Gymboree Retail Stores, LLC, as amended.

The Irvine Company LLC Lease, dated July 20, 2018, by and between The Irvine Company LLC and Gymboree 

Retail Stores, LLC.

Westcoast Estates Lease, dated June 8, 2016, by and between Westcoast Estates and Gymboree Retail 

Stores, LLC, as amended.

Southpark Mall Limited 

Partnership

Lease, dated September 2, 2003, by and between Southpark Mall Limited Partnership 

and Gymboree Retail Stores, Inc., as amended.

Old Orchard Urban 

Limited Partnership

Lease, dated November 3, 2003, by and between Old Orchard Urban Limited 

Partnership and Gymboree Retail Stores, LLC, as amended.

Tysons Corner Holdings 

LLC

Lease Agreement, dated May 29, 2013, by and between Tysons Corner Holdings LLC 

and Gymboree Retail Stores, LLC.

Somerset Collection 

Limited Partnership

Lease, dated March 12, 2007, by and between Somerset Collection Limited 

Partnership and Gymboree Retail Stores, LLC, as amended.

Simon Property Group 

(Texas), L.P.

Lease, dated June 3, 2014, by and between Simon Property Group (Texas), L.P. and 

Gymboree Retail Stores, LLC.

Leslie K. Marsden 2007 

Revocable Trust_TYAB 

Partners LLC & Patricia 

Kirkbride

Lease, dated February 20, 1997, by and between as Leslie K. Marsden 2007 Revocable 

Trust_TYAB Partners LLC & Patricia Kirkbride and Gymboree Retail Stores, LLC, as 

amended.

UTC Venture LLC Lease, dated August 5, 2015, by and between UTC Venture LLC and Gymboree Retail 

Stores, LLC, as amended.

Macerich Northwestern 

Associates

Lease Agreement, dated February 9, 2004, by and between Macerich Northwestern 

Associates and Gymboree Retail Stores, LLC, as amended.

Sherman Oaks Fashion 

Associates, LP

Lease, dated August 5, 2015, by and between Sherman Oaks Fashion Associates, LP 

and Gymboree Retail Stores, LLC.

Fairfax Company of 

Virginia L.L.C.

Lease Agreement, dated May 27, 2014, by and between Fairfax Company of Virginia 

L.L.C. and Gymboree Retail Stores, LLC, as amended.

Hocker Oxmoor, LLC Lease, dated January 28, 2004, by and between Hocker Oxmoor, LLC and Gymboree 

Retail Stores, LLC, as amended.

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Counterparty Contract Description

SDG Fashion Mall Limited 

Partnership

Lease, dated December 23, 2014, by and between SDG Fashion Mall Limited 

Partnership and Gymboree Retail Stores, LLC, as amended.

The Woodlands Mall 

Associates, LLC

Lease, dated January 13, 2015, by and between The Woodlands Mall Associates, LLC 

and Gymboree Retail Stores, LLC, as amended.

Continental/Galleria, LP Lease, dated May 6, 2004, by and between Continental/Galleria, LP and Gymboree 

Retail Stores, LLC, as amended.

Legacy Village Investors 

LLC

Lease, dated June 1, 2004, by and between Legacy Village Investors LLC and 

Gymboree Retail Stores, LLC, as amended.

PFP Columbus II, LLC Lease, dated June 16, 2004, by and between PFP Columbus II, LLC and Gymboree 

Retail Stores, LLC, as amended.

The Retail Property Trust Lease, dated September 16, 2004, by and between The Retail Property Trust and 

Gymboree Retail Stores, LLC, as amended.

Westland Garden State 

Plaza Limited Partnership

Lease, dated December 22, 2004, by and between Westland Garden State Plaza 

Limited Partnership and Gymboree Retail Stores, LLC, as amended.

Scottsdale Fashion Square

LLC

Lease Agreement, dated July 12, 2004, by and between Scottsdale Fashion Square 

LLC and Gymboree Retail Stores, LLC, as amended.

King of Prussia Associates Lease, dated March 30, 2015, by and between King of Prussia Associates and 

Gymboree Retail Stores, LLC, as amended.

Aventura Mall Venture Lease, dated July 13, 2015, by and between Aventura Mall Venture and Gymboree 

Retail Stores, LLC.

Leawood TCP, LLC Lease Agreement, dated December 7, 2004, by and between Leawood TCP, LLC and 

Gymboree Retail Stores, LLC, as amended.

Towson TC, LLC Lease, dated June 8, 2016, by and between Towson TC, LLC and Gymboree Retail 

Stores, LLC, as amended.

Northpark Partners, LP Shopping Center Lease, dated December 2, 2014, by and between Northpark Partners, 

LP, and Gymboree Retail Stores, LLC, as amended.

1311 Montana LLC Industrial/Commercial Multi-Tenant Lease-Net, dated April 20, 2005, by and between 

1311 Montana LLC and Gymboree Retail Stores, LLC, as amended.

SLTS Grand Avenue II, 

L.P.

Retail Lease, dated January 23, 2006, by and between SLTS Grand Avenue II, L.P. 

and Gymboree Retail Stores, LLC, as amended.

Forbes/Cohen Florida 

Properties Limited 

Partnership

Lease, dated October 13, 2015, by and between Forbes/Cohen Florida Properties 

Limited Partnership and Gymboree Retail Stores, LLC.

Crocker Downtown 

Development Associates

Lease, dated March 23, 2006, by and between Crocker Downtown Development 

Associates and Gymboree Retail Stores, LLC, as amended.

Eastview Mall, LLC Lease Agreement, dated September 20, 2005, by and between Eastview Mall, LLC and 

Gymboree Retail Stores, LLC, as amended.

Orland, L.P. Lease, dated January 11, 2017, by and between Orland, L.P. and Gymboree Retail 

Stores, LLC.

DDRTC Birkdale Village 

LLC

Lease, dated October 31, 2006, by and between DDRTC Birkdale Village LLC and 

Gymboree Retail Stores, LLC, as amended.

Arden Fair Associates, 

L.P.

Arden Fair Lease, dated February 27, 2006, by and between Arden Fair Associates, 

L.P. and Gymboree Retail Stores, LLC, as amended.

Westfield Topanga Owner 

LLC

Lease, dated June 26, 2006, by and between Westfield Topanga Owner LLC and 

Gymboree Retail Stores, LLC, as amended.

Forbes Taubman Orlando, 

L.L.C.

Lease, dated January 28, 2013, by and between Forbes Taubman Orlando, L.L.C. and 

Gymboree Retail Stores, LLC, as amended.

TM Partridge Creek Mall, 

L.P.

Lease, dated November 13, 2006, by and between TM Partridge Creek Mall, L.P. and 

Gymboree Retail Stores, LLC, as amended.

CVM Holdings, LLC Lease Agreement, dated July 31, 2006, by and between CVM Holdings, LLC and 

Gymboree Retail Stores, LLC, as amended.

Macerich La Cumbre LP Lease, September 13, 2006, by and between Macerich La Cumbre LP and Gymboree 

Retail Stores, LLC, as amended.

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Counterparty Contract Description

Santa Anita Shoppingtown 

LP

Lease, dated February 17, 2017, by and between Santa Anita Shoppingtown LP and 

Gymboree Retail Stores, LLC, as amended.

CPI-PHIPPS Limited 

Liability Company

Lease, dated September 20, 2006, by and between CPI-PHIPPS Limited Liability 

Company and Gymboree Retail Stores, LLC, as amended.

The Shoppes at Union Hill, 

LLC

Lease, dated June 14, 2007, by and between The Shoppes at Union Hill, LLC and 

Gymboree Retail Stores, LLC, as amended.

Annapolis Mall Owner 

LLC

Lease, August 1, 2007, by and between Annapolis Mall Owner LLC and Gymboree 

Retail Stores, LLC, as amended.

Coolsprings Mall, LLC Lease, dated November 13, 2007, by and between Coolsprings Mall, LLC and 

Gymboree Retail Stores, LLC, as amended.

MOAC Mall Holdings 

LLC

Lease, dated August 30, 2007, by and between MOAC Mall Holdings LLC and 

Gymboree Retail Stores, LLC, as amended.

Roseville Shoppingtown 

LLC

Lease, dated May 23, 2008, by and between Roseville Shoppingtown LLC and 

Gymboree Retail Stores, LLC, as amended.

GGP Ala Moana L.L.C. Lease, dated July 20, 2007, by and between GGP Ala Moana L.L.C. and Gymboree 

Retail Stores, LLC, as amended.

Sof-IX Blueback Square 

Holdings, L.P.

Lease, dated September 19, 2007, by and between Sof-IX Blueback Square Holdings, 

L.P. and Gymboree Retail Stores, LLC, as amended.

Paramount Square at 

Marlton LLC

Shopping Center Lease, dated February 15, 2008, by and between Paramount Square 

at Marlton LLC and Gymboree Retail Stores, LLC.

Highland Village Limited 

Partnership

Lease Contract, dated August 22, 2007, by and between Highland Village Limited 

Partnership and Gymboree Retail Stores, LLC, as amended.

SPG Center, LLC Lease, dated September 19, 2007, by and between SPG Center, LLC and Gymboree 

Retail Stores, LLC, as amended.

El Paseo Land Company, 

L.L.C.

Lease, dated February 4, 2008, by and between El Paseo Land Company, L.L.C. and 

Gymboree Retail Stores, LLC, as amended.

HSC Holdings, LLC Short Form License Agreement, dated July 18, 2018, by and between HSC Holdings, 

LLC and Gymboree Retail Stores, LLC.

Shops at Mission Viejo, 

LLC

Lease, dated June 6, 2018, by and between Shops at Mission Viejo, LLC and 

Gymboree Retail Stores, LLC.

North Star Mall, LLC Lease, dated April 25, 2008, by and between North Star Mall, LLC and Gymboree 

Retail Stores, LLC, as amended.

Danbury Mall, LLC Lease Agreement, dated April 15, 2008, by and between Danbury Mall, LLC and 

Gymboree Retail Stores, LLC, as amended.

Braintree Property 

Associates Limited 

Partnership

Lease, dated May 22, 2008, by and between Braintree Property Associates Limited 

Partnership and Gymboree Retail Stores, LLC, as amended. 

The Falls Shopping Center 

Associates LLC

Lease, dated September 5, 2008, by and between The Falls Shopping Center 

Associates LLC and Gymboree Retail Stores, LLC, as amended.

Route 35 Shrewsbury 

Limited Partnership

Lease Agreement, dated June 5, 2008, by and between Route 35 Shrewsbury Limited 

Partnership and Gymboree Retail Stores, LLC.

Penn Ross Joint Venture Lease, dated June 6, 2008, by and between Penn Ross Joint Venture and Gymboree 

Retail Stores, LLC.

RREEF America REIT II 

Corp. BBB

Lease, dated June 18, 2008, by and between RREEF America REIT II Corp. BBB and 

Gymboree Retail Stores, LLC, as amended.

Teachers Insurance and 

Annuity Association of 

America, for the benefit of 

its Separate Real Estate 

Account

Lease, dated September 26, 2008, by and between Teachers Insurance and Annuity 

Association of America, for the benefit of its Separate Real Estate Account and 

Gymboree Retail Stores, LLC, as amended.

Montgomery Mall Owner 

LLC

Lease, dated September 12, 2008, by and between Montgomery Mall Owner LLC and 

Gymboree Retail Stores, LLC, as amended.

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Counterparty Contract Description

168th and Dodge, L.P. Lease Agreement, dated August 25, 2008, by and between 168th and Dodge, L.P. and 

Gymboree Retail Stores, LLC, as amended.

Vestar Green Valley, LLC Retail Lease, dated February 6, 2009, by and between Vestar Green Valley, LLC and 

Gymboree Retail Stores, LLC, as amended.

Fashion Place, LLC Lease, dated August 8, 2008, by and between Fashion Place, LLC and Gymboree 

Retail Stores, LLC, as amended.

OWRF Carmel LLC Lease Agreement, dated March 26, 2009, by and between OWRF Carmel LLC and 

Gymboree Retail Stores, LLC, as amended.

Valencia Town Center 

Venture, L.P.

Lease, dated September 17, 2010, by and between Valencia Town Center Venture, 

L.P. and Gymboree Retail Stores, LLC, as amended.

WMACH LLC Lease, dated October 17, 2012, by and between WMACH LLC and Gymboree Retail 

Stores, LLC.

TB Mall at UTC LLC Lease, dated December 28, 2012, by and between TB Mall at UTC LLC and 

Gymboree Retail Stores, LLC, as amended.

Avalon North, LLC Shopping Center Lease, dated May 21, 2013, by and between Avalon North, LLC and 

Gymboree Retail Stores, LLC, as amended.

BP Prucenter Acquisition 

LLC

Indenture of Lease, dated January 31, 2014, by and between BP Prucenter Acquisition 

LLC and Gymboree Retail Stores, LLC, as amended.

BP Prucenter Acquisition 

LLC

Guaranty, dated January 31, 2014, by and between BP Prucenter Acquisition LLC and 

Gymboree Group, Inc. (successor-in-interest to The Gymboree Corporation).

Bellwether Properties of 

Massachusetts Limited 

Partnership

Lease, dated September 19, 2013, by and between Bellwether Properties of 

Massachusetts Limited Partnership and Gymboree Retail Stores, LLC.

VF Mall LLC Lease, dated June 27, 2013, by and between VF Mall LLC and Gymboree Retail 

Stores, LLC.

Causeway LLC Lease, dated July 30, 2013, by and between Causeway LLC and Gymboree Retail 

Stores, LLC.

East 67th Street Owners 

Inc.

Lease, dated November 1, 2013, by and between East 67th Street Owners Inc. and 

Gymboree Retail Stores, LLC, as amended.

Fayette Middle Anchor, 

LLC

Lease, dated July 31, 2014, by and between Fayette Middle Anchor, LLC and 

Gymboree Retail Stores, LLC.

Orlando Outlet Owner 

LLC

Lease Agreement, dated on or about August 25, 2008, by and between Orlando Outlet 

Owner LLC and Gymboree Retail Stores, LLC.

San Marcos Factory 

Stores, Ltd.

Lease Agreement, dated on or about August 25, 2008, by and between San Marcos 

Factory Stores, Ltd. and Gymboree Retail Stores, LLC.

Sunrise Mills (MLP) 

Limited Partnership

Lease, dated December 2, 2008, by and between Sunrise Mills (MLP) Limited 

Partnership and Gymboree Retail Stores, LLC.

Silver Sands Joint Venture 

Partners

Lease, dated May 5, 2010, by and between Silver Sands Joint Venture Partners and 

Gymboree Retail Stores, LLC.

COROC/REHOBOTH III 

L.L.C.

Lease Agreement, dated May 19, 2010, by and between COROC/REHOBOTH III 

L.L.C. and Gymboree Retail Stores, LLC.

Williamsburg Outlets, 

L.L.C.

Lease, dated July 12, 2005, by and between Williamsburg Outlets, L.L.C. and 

Gymboree Retail Stores, LLC, as amended.

Tanger Properties Limited 

Partnership

Lease Agreement, dated May 31, 2011, by and between Tanger Properties Limited 

Partnership and Gymboree Retail Stores, LLC.

Tanger Properties Limited 

Partnership

Guaranty, dated on or about May 31, 2011, by and between Tanger Properties Limited 

Partnership and Gymboree Group, Inc. (successor-in-interest to The Gymboree 

Corporation).

Gilroy Premium Outlets, 

LLC

Lease, dated June 29, 2011, by and between Gilroy Premium Outlets, LLC and 

Gymboree Retail Stores, LLC.

Katy Mills Mall Limited 

Partnership

Lease, dated May 25, 2011, by and between Katy Mills Mall Limited Partnership and 

Gymboree Retail Stores, LLC.

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Counterparty Contract Description

Tanger Properties Limited 

Partnership

Lease Agreement, dated March 29, 2011, by and between Tanger Properties Limited 

Partnership and Gymboree Retail Stores, LLC.

Tanger Properties Limited 

Partnership

Guaranty, dated on or about March 29, 2011, by and between Tanger Properties 

Limited Partnership and Gymboree Group, Inc. (as successor-in-interest to The 

Gymboree Corporation).

Rockvale Outlet Center, 

L.P.

Business Property Lease, dated July 13, 2011, by and between Rockvale Outlet Center, 

L.P. and Gymboree Retail Stores, LLC.

FSH Associates, L.P. Business Property Lease, dated June 16, 2011, by and between FSH Associates, L.P. 

and Gymboree Retail Stores, LLC.

COROC/Hilton Head I 

L.L.C.

Lease Agreement, dated September 13, 2011, by and between COROC/Hilton Head I 

L.L.C. and Gymboree Retail Stores, LLC.

Fashion Outlets of Chicago 

LLC

Shopping Center Lease, dated March 1, 2013, by and between Fashion Outlets of 

Chicago LLC and Gymboree Retail Stores, LLC.

Chelsea Financing 

Partnership, L.P.

Lease, dated May 11, 2012, by and between Chelsea Financing Partnership, L.P. and 

Gymboree Retail Stores, LLC.

Paragon Outlets Livermore 

Valley LLC

Lease Agreement, dated June 5, 2012, by and between Paragon Outlets Livermore 

Valley LLC and Gymboree Retail Stores, LLC, as amended.

Grand Prairie Outlets, LLC Lease Agreement, dated May 14, 2012, by and between Grand Prairie Outlets, LLC 

and Gymboree Retail Stores, LLC, as amended.

Ontario Mills Limited 

Partnership

Lease, dated May 10, 2012, by and between Ontario Mills Limited Partnership and 

Gymboree Retail Stores, LLC.

Craig Realty Group –

Woodburn, LLC

Lease, dated July 25, 2012, by and between Craig Realty Group – Woodburn, LLC 

and Gymboree Retail Stores, LLC.

Mall at Potomac Mills, 

LLC

Lease, dated November 20, 2012, by and between Mall at Potomac Mills, LLC and 

Gymboree Retail Stores, LLC, as amended.

Palm Beach Mall Holdings 

LLC

Indenture of Lease, dated July 23, 2013, by and between Palm Beach Mall Holdings 

LLC and Gymboree Retail Stores, LLC.

Opry Mills Mall Limited 

Partnership

Lease, dated May 25, 2012, by and between Opry Mills Mall Limited Partnership and 

Gymboree Retail Stores, LLC.

Tanger Outlets Deer Park, 

LLC

Lease Agreement, dated November 16, 2012, by and between Tanger Outlets Deer 

Park, LLC and Gymboree Retail Stores, LLC, as amended.

Tanger Outlets Deer Park, 

LLC

Guaranty, dated on or about November 16, 2012, by and between Tanger Outlets Deer 

Park, LLC and Gymboree Group, Inc. (as successor-in-interest to The Gymboree 

Corporation).

Premium Outlet Partners, 

L.P.

Lease, dated May 1, 2013, by and between Premium Outlet Partners, L.P. and 

Gymboree Retail Stores, LLC, as amended.

Outlet Village of 

Hagerstown Limited 

Partnership

Lease Agreement, dated December 17, 2012, by and between Outlet Village of 

Hagerstown Limited Partnership and Gymboree Retail Stores, LLC, as amended.

Grapevine Mills Limited 

Partnership

Lease, dated October 12, 2012, by and between Grapevine Mills Limited Partnership 

and Gymboree Retail Stores, LLC.

Tampa Premium Outlets, 

LLC

Lease, dated November 4, 2014, by and between Tampa Premium Outlets, LLC and 

Gymboree Retail Stores, LLC.

Arundel Mills Limited 

Partnership

Lease, dated January 24, 2013, by and between Arundel Mills Limited Partnership and 

Gymboree Retail Stores, LLC.

Fashion Outlets II LLC Shopping Center Lease, dated November 12, 2013, by and between Fashion Outlets II 

LLC and Gymboree Retail Stores, LLC.

Twin Cities Outlets Eagan 

LLC

Lease Agreement, dated April 2, 2013, by and between Twin Cities Outlets Eagan 

LLC and Gymboree Retail Stores, LLC, as amended.

Mall at Concord Mills 

Limited Partnership

Lease, dated July 3, 2013, by and between Mall at Concord Mills Limited Partnership 

and Gymboree Retail Stores, LLC, as amended.

Outlet Mall of Savannah, 

LLC

Lease Agreement, dated November 26, 2013, by and between Outlet Mall of 

Savannah, LLC and Gymboree Retail Stores, LLC, as amended.

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Counterparty Contract Description

Las Americas Premium 

Outlets, LLC

Lease Agreement, dated September 3, 2013, by and between Las Americas Premium 

Outlets, LLC and Gymboree Retail Stores, LLC, as amended.

Premium Outlet Partners Lease Agreement, dated September 3, 2013, by and between Premium Outlet Partners 

and Gymboree Retail Stores, LLC, as amended.

Miromar Outlet West, LLC Lease Agreement, dated November 19, 2013, by and between Miromar Outlet West, 

LLC and Gymboree Retail Stores, LLC, as amended.

CPG Partners, L.P. Lease, dated July 30, 2014, by and between CPG Partners, L.P. and Gymboree Retail 

Stores, LLC.

SPG Houston Holdings, 

L.P.

Lease, dated June 3, 2016, by and between SPG Houston Holdings, L.P. and 

Gymboree Retail Stores, LLC.

Premium Outlet Partners, 

L.P.

Lease, dated February 14, 2014, by and between Premium Outlet Partners, L.P. and 

Gymboree Retail Stores, LLC, as amended.

Tanger Properties Limited 

Partnership

Lease Agreement, dated January 9, 2014, by and between Tanger Properties Limited 

Partnership and Gymboree Retail Stores, LLC, as amended.

Tanger Properties Limited 

Partnership

Guaranty, dated on or about January 9, 2014, by and between Tanger Properties 

Limited Partnership and Gymboree Group, Inc. (as successor-in-interest to The 

Gymboree Corporation).

Charlotte Outlets, LLC Lease, dated June 4, 2014, by and between Charlotte Outlets, LLC and Gymboree 

Retail Stores, LLC.

Simon/Chelsea Chicago 

Development, LLC

Lease, dated December 4, 2014, by and between Simon/Chelsea Chicago 

Development, LLC and Gymboree Retail Stores, LLC.

Allen Premium Outlets, 

L.P.

Lease, dated August 15, 2018, by and between Allen Premium Outlets, L.P. and 

Gymboree Retail Stores, LLC.

Denver Premium Outlets, 

LLC

Lease, dated June 27, 2018, by and between Denver Premium Outlets, LLC and 

Gymboree Retail Stores, LLC.

Plaza Internacional Puerto 

Rico LLC

Lease Agreement, dated May 27, 2014, by and between Plaza Internacional Puerto 

Rico LLC, and Gymboree Island, LLC, as amended.

Del Amo Fashion Center 

Operating Company, 

L.L.C.

Lease, dated August 21, 2018, by and between Del Amo Fashion Center Operating 

Company, L.L.C. and Gymboree Retail Stores, LLC.

East 67th Street Owners, 

Inc.

Lease Guaranty, dated November 1, 2013, by and between East 67th Street Owners, 

Inc. and Gymboree Group, Inc. (successor-in-interest to The Gymboree Corporation).

COROC/REHOBOTH III, 

LLC

Lease Guaranty, dated on or about May 19, 2010, by and between 

COROC/REHOBOTH III, LLC and Gymboree Group, Inc. (successor-in-interest to 

The Gymboree Corporation).

COROC/Hilton Head I 

L.L.C.

Lease Guaranty, dated on or about September 13, 2011, by and between 

COROC/Hilton Head I L.L.C. and Gymboree Group, Inc. (successor-in-interest to The 

Gymboree Corporation).

Plaza Internacional Puerto 

Rico LLC

Guaranty, dated September 15, 2014, by and between Plaza Internacional Puerto Rico 

LLC and Gymboree Group, Inc. (successor-in-interest to The Gymboree Corporation).

1311 Montana LLC Guaranty of Lease, dated May 4, 2005, by and between 1311 Montana LLC and 

Gymboree Group, Inc. (successor-in-interest to The Gymboree Corporation).

The Grove at Farmers 

Market, LLC

Guaranty of Lease, dated on or about June 17, 2002, by and between The Grove at 

Farmers Market, LLC and Gymboree Group, Inc. (successor-in-interest to The 

Gymboree Corporation).

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Exhibit E

JJ Successful Bidder

Adequate Assurance Information

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The assets will be purchased by The Gap, Inc. which is a Fortune 500 company listed on the 

NYSE with approximately $1.4 billion in cash and short-term investments, or a designated 

subsidiary, in which case The Gap would provide a one year guaranty.

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Exhibit F

Gym/Crazy 8 Proposed Assumption and Assignment Notice

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Counterparty Contract Description

Zeavion Holding PTE. 

LTD.

License and Assignment Agreement, dated as of July 15, 2016, by and between The 

Gymboree Corporation, Gym-Mark, Inc. and Zeavion Holding PTE. LTD.

Zeavion Holding PTE. 

LTD.

Limited Liability Company Agreement of Gym-IPCO, LLC, dated as of July 15, 

2016

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Exhibit G

Gym/Crazy 8 Successful Bidder

Adequate Assurance Information

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The Children’s Place is the largest pure-play children’s specialty apparel retailer in North

America. The Company designs, contracts to manufacture, sells and licenses to sell fashionable, 

high-quality merchandise at value prices, primarily under the proprietary “The Children’s Place”, 

“Place” and “Baby Place” brand names. As of November 3, 2018, the Company operated 988 

stores in the United States, Canada and Puerto Rico, an online store at www.childrensplace.com, 

and had 211 international points of distribution open and operated by its eight franchise partners 

in 20 countries. Common Stock in The Children’s Place is traded on the NASDAQ under the 

symbol PLCE. Financial Reports demonstrating Buyer’s ability to provide adequate assurance of 

future performance may be found at http://investor.childrensplace.com/financial-reports.

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