phasebio-ex101tochiesiap






EXHIBIT 10.1  EXECUTION VERSION                            ASSET PURCHASE AGREEMENT      BY AND BETWEEN      PHASEBIO PHARMACEUTICALS, INC.,      AND      CHIESI FARMACEUTICI S.P.A        DATED AS OF NOVEMBER 4, 2022    





 






  i  TABLE OF CONTENTS    ARTICLE I THE ACQUISITION .............................................................................................................. 1  Section 1.1. Acquired Assets ................................................................................................................ 1  Section 1.2. Excluded Assets ................................................................................................................ 3  Section 1.3. Assumed Liabilities .......................................................................................................... 4  Section 1.4. Excluded Liabilities .......................................................................................................... 4  Section 1.5. Assignment of Assigned Contracts ................................................................................... 6  Section 1.6. Purchase Price; Deposit Funds .......................................................................................... 8  Section 1.7. Withholding .................................................................................................................... 12  Section 1.8. Purchase Price Allocation ............................................................................................... 12  ARTICLE II THE CLOSING ................................................................................................................... 13  Section 2.1. Closing ............................................................................................................................ 13  Section 2.2. Deliveries at the Closing ................................................................................................. 13  ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLER ............................................ 14  Section 3.1. Qualification, Organization, Subsidiaries ....................................................................... 14  Section 3.2. Authority of Seller .......................................................................................................... 15  Section 3.3. Consents and Approvals ................................................................................................. 15  Section 3.4. No Violations .................................................................................................................. 15  Section 3.5. Financial Statements; Books and Records ...................................................................... 15  Section 3.6. Title to Property; Sufficiency of Assets .......................................................................... 16  Section 3.7. Absence of Certain Changes ........................................................................................... 16  Section 3.8. Brokers or Finders .......................................................................................................... 17  Section 3.9. Litigation ......................................................................................................................... 17  Section 3.10. Intellectual Property ........................................................................................................ 17  Section 3.11. Privacy and Data Protection ............................................................................................ 20  Section 3.12. Real Property Leases ...................................................................................................... 21  Section 3.13. Material Contracts ........................................................................................................... 21  Section 3.14. Compliance with Laws; Permits ..................................................................................... 23  Section 3.15. Employee Benefit Matters .............................................................................................. 25  Section 3.16. Labor Matters .................................................................................................................. 26  Section 3.17. Environmental Matters.................................................................................................... 27  Section 3.18. Regulatory Matters ......................................................................................................... 27  Section 3.19. Taxes ............................................................................................................................... 29  Section 3.20. Suppliers ......................................................................................................................... 30  Section 3.21. Inventory ......................................................................................................................... 30  Section 3.22. Insurance ......................................................................................................................... 31  Section 3.23. CFIUS ............................................................................................................................. 31  Section 3.24. Disclaimer ....................................................................................................................... 31  ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PURCHASER .................................... 31  Section 4.1. Qualification; Organization ............................................................................................ 31  Section 4.2. Authority of Purchaser .................................................................................................... 32  Section 4.3. Consents and Approvals ................................................................................................. 32  Section 4.4. No Violations .................................................................................................................. 32  Section 4.5. Brokers or Finders .......................................................................................................... 32  Section 4.6. Financing ........................................................................................................................ 33  Section 4.7. Adequate Assurances Regarding Assigned Contracts .................................................... 33  Section 4.8. Disclaimer ....................................................................................................................... 33  





 






  ii  ARTICLE V COVENANTS ..................................................................................................................... 33  Section 5.1. Conduct of Business Pending the Closing ...................................................................... 33  Section 5.2. Access and Information .................................................................................................. 36  Section 5.3. Approvals and Consents; Cooperation; Notification ...................................................... 37  Section 5.4. Further Assurances ......................................................................................................... 38  Section 5.5. Assets Held by Other Persons ......................................................................................... 39  Section 5.6. The Sale Motion .............................................................................................................. 39  Section 5.7. Cooperation with Respect to Bankruptcy Court Approvals ............................................ 39  Section 5.8. Non-Solicitation of Stalking Horse Bidders ................................................................... 39  Section 5.9. Bankruptcy Court Filings ................................................................................................ 40  Section 5.10. Not a Back Up Bidder ..................................................................................................... 40  Section 5.11. Employee Matters ........................................................................................................... 40  Section 5.12. Seller Confidentiality Agreements; Post-Closing Confidentiality .................................. 41  Section 5.13. Use of Names and Marks ................................................................................................ 41  Section 5.14. Permits ............................................................................................................................ 41  Section 5.15. Reporting ........................................................................................................................ 41  Section 5.16. Additional Actions .......................................................................................................... 41  Section 5.17. Restrictive Covenants ..................................................................................................... 42  Section 5.18. Transitional Support; Phase 3 Trial Sponsorship ............................................................ 43  ARTICLE VI CONDITIONS PRECEDENT ........................................................................................... 44  Section 6.1. Conditions Precedent to Obligation of Seller and Purchaser .......................................... 44  Section 6.2. Conditions Precedent to Obligation of Seller ................................................................. 44  Section 6.3. Conditions Precedent to Obligation of Purchaser ........................................................... 45  ARTICLE VII INDEMNIFICATION ...................................................................................................... 46  Section 7.1. Indemnification ............................................................................................................... 46  Section 7.2. Claim Procedure ............................................................................................................. 47  Section 7.3. Limitations on Indemnification ....................................................................................... 49  Section 7.4. Tax Treatment of Indemnification Payments .................................................................. 50  Section 7.5. Exclusive Remedy .......................................................................................................... 50  Section 7.6. Effect of Investigation..................................................................................................... 50  ARTICLE VIII TERMINATION ............................................................................................................. 50  Section 8.1. Termination ..................................................................................................................... 50  Section 8.2. Effect of Termination ...................................................................................................... 51  ARTICLE IX GENERAL PROVISIONS ................................................................................................. 54  Section 9.1. Tax Matters ..................................................................................................................... 54  Section 9.2. Bulk Sales ....................................................................................................................... 55  Section 9.3. Public Announcements ................................................................................................... 55  Section 9.4. Notices ............................................................................................................................ 55  Section 9.5. Descriptive Headings; Interpretative Provisions ............................................................. 56  Section 9.6. No Strict Construction .................................................................................................... 57  Section 9.7. Entire Agreement; Assignment ....................................................................................... 57  Section 9.8. Governing Law; Submission of Jurisdiction; Waiver of Jury Trial ................................ 57  Section 9.9. Expenses ......................................................................................................................... 57  Section 9.10. Amendment ..................................................................................................................... 57  Section 9.11. Waiver ............................................................................................................................. 57  Section 9.12. Counterparts; Effectiveness ............................................................................................ 58  Section 9.13. Severability; Validity; Parties in Interest ........................................................................ 58  Section 9.14. Specific Performance ...................................................................................................... 58  Section 9.15. Time of the Essence ........................................................................................................ 58  





 






  iii  Section 9.16. Remedies Cumulative ..................................................................................................... 58  Section 9.17. Conflicts; Deal Communications. ................................................................................... 58  ARTICLE X DEFINITIONS ..................................................................................................................... 59    EXHIBITS    Exhibit A Form of Bill of Sale & Assignment and Assumption Agreement  Exhibit B Forms of Intellectual Property Assignment Agreements  Exhibit C Form of Bidding Procedures Order  Exhibit D Form of Sale Order  Exhibit E DIP Loan Documents and DIP Budget  Exhibit F Form of Escrow Agreement   Exhibit G Form of Transition Services Agreement      SCHEDULES     Schedule 1.1(c)  Assigned Contracts  Schedule 1.1(e)  Seller Intellectual Property  Schedule 1.1(m) Designated Parties  Schedule 1.1(r)  Acquired Seller Assets & Rights  Schedule 1.2(l)  Excluded Seller Assets & Rights  Schedule 1.4(f)  Excluded Liabilities  Schedule 1.5(a)  Cure Costs  Schedule 2.2(a)(ii)  Tangible Acquired Assets Deliveries   Schedule 5.1(a)  Conduct of Business Pending Closing  Schedule 5.1(b)  Seller Interim Operating Covenants  Schedule 6.3(c)  Required Consents  Schedule 6.3(i)  Contract Amendment  





 






  1  ASSET PURCHASE AGREEMENT    THIS ASSET PURCHASE AGREEMENT, dated as of November 4, 2022 (this “Agreement”),  is made by and between PhaseBio Pharmaceuticals, Inc., a Delaware corporation (“Seller”), and Chiesi  Farmaceutici S.p.A., a private limited company organized under the Laws of Italy (“Purchaser”). Seller and  Purchaser are referred to individually herein as a “party” and collectively as the “parties.” Capitalized terms  used herein and not otherwise defined shall have the respective meanings set forth in ARTICLE X.  WHEREAS, Seller is engaged in the business of, directly or indirectly, Exploiting the Product  (such business the “Business”);  WHEREAS, on October 23, 2022 (the “Petition Date”), Seller filed a voluntary petition for relief  commencing a case (the “Chapter 11 Case”) under Chapter 11 of Title 11 of the United States Code (the  “Bankruptcy Code”) in the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy  Court”);  WHEREAS, Purchaser desires to purchase and accept, and Seller desires to sell, convey, assign,  transfer and deliver, or cause to be sold, conveyed, assigned, transferred and delivered, to Purchaser, all of  the Acquired Assets, and Purchaser is willing to assume, and Seller desires to assign and delegate to  Purchaser, all of the Assumed Liabilities, all in the manner and subject to the terms and conditions set forth  herein and in accordance with Sections 105, 363 and 365 of the Bankruptcy Code, subject to Purchaser’s  right to assign its rights and obligations hereunder to one of more of its Affiliates (such sale and purchase  of the Acquired Assets and such assignment and assumption of the Assumed Liabilities, the “Acquisition”);  WHEREAS, the parties acknowledge and agree that the purchase by Purchaser of the Acquired  Assets and the assumption by Purchaser of the Assumed Liabilities are being made at arm’s length and in  good faith and without intent to hinder, delay or defraud creditors of Seller or their Affiliates;  WHEREAS, the execution and delivery of this Agreement and Seller’s ability to consummate the  Transactions are subject to, among other things, the entry of the Sale Order under, inter alia, Sections 363  and 365 of the Bankruptcy Code; and  WHEREAS, the parties desire to consummate the proposed transaction as promptly as practicable  after the Bankruptcy Court enters the Sale Order.  NOW, THEREFORE, in consideration of the foregoing and the respective representations,  warranties, covenants and agreements set forth herein, and for other good and valuable consideration, the  receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:  ARTICLE I  THE ACQUISITION  Section 1.1. Acquired Assets. On the terms and subject to the conditions set forth in this  Agreement and, subject to approval of the Bankruptcy Court, pursuant to Sections 105, 363 and 365 of the  Bankruptcy Code, at the Closing, the Seller shall sell, assign, transfer, convey and deliver, or cause to be  sold, assigned, transferred, conveyed and delivered, to Purchaser, and Purchaser shall purchase and accept  from Seller, free and clear of all Encumbrances of any and every kind, nature and description, other than  Permitted Post-Closing Encumbrances, all right, title and interest of the Seller in, to or under all of the  assets, properties and rights of every kind and nature, in each case, as of the Closing, whether real, personal  or mixed, tangible or intangible (including goodwill), wherever located and whether now existing or  hereafter acquired (other than the Excluded Assets), in each case which are Primarily Related to the  





 






  2  Business (collectively, the “Acquired Assets”). Without limiting the foregoing, the Acquired Assets shall  include, and Seller shall sell, assign, transfer, convey and deliver, or cause to be sold, assigned, transferred,  conveyed and delivered, to Purchaser at the Closing free and clear of all Encumbrances of any and every  kind, nature and description, other than Permitted Post-Closing Encumbrances, the following:  (a) the Product;  (b) all credits, claims for refunds, deposits for the benefit of third parties and prepaid  expenses of Seller (other than credits, claims for refunds, deposits and prepaid amounts exclusively related  to the Excluded Assets or the Excluded Liabilities);  (c) the Contracts listed, described or otherwise identified on Schedule 1.1(c), as such  schedule may be amended from time to time pursuant to Section 1.5(e) (such Contracts, the “Assigned  Contracts”) and the rights thereunder;  (d) all raw materials, active pharmaceutical ingredients, excipients, work-in-process,  semi-finished and finished goods, supplies (including clinical drug supplies), samples (including samples  held by sales representatives), components, packaging materials, and other inventories that are in the  possession of Seller or any third party that are Primarily Related to the Product or the Business (collectively,  “Inventory”);  (e) all Seller Intellectual Property, including Seller Registered Intellectual Property  (including the items listed on Schedule 1.1(e)) and all of Seller’s rights therein, including all rights to sue  for and recover and retain damages for present and past infringement thereof and, in the case of Trademarks  that are Seller Intellectual Property, all goodwill appurtenant thereto;  (f) all rights under non-disclosure or confidentiality, invention and Intellectual  Property assignment agreements executed for the benefit of Seller with current or former employees,  consultants or contractors of Seller or with third parties Primarily Related to the Product or the Business;  (g) all Books and Records, other than Retained Books and Records;  (h) all Regulatory Documentation;  (i) all Permits (including pending applications therefor) Primarily Related to the  Product or the Business;  (j) rights to receive any royalties, milestones or other contingent payments under any  Contracts Primarily Related to the Business that are not Assigned Contracts but pursuant to which the  applicable licensee elects to retain its intellectual property license rights under Section 365(n) of the  Bankruptcy Code;  (k) all goodwill and other intangible assets associated with the Business, the Acquired  Assets and the Assumed Liabilities;  (l) all rights, claims, rebates, refunds, causes of action, actions, suits or proceedings,  hearings, audits, rights of recovery, rights of setoff, rights of recoupment, rights of reimbursement, rights  of indemnity or contribution and other similar rights (known and unknown, matured and unmatured,  accrued or contingent, regardless of whether such rights are currently exercisable) against any Person,  including all warranties, representations, guarantees, indemnities and other contractual claims (express,  





 






  3  implied or otherwise) to the extent Primarily Related to the Business, the Acquired Assets or the Assumed  Liabilities (including any claims for past infringement or misappropriation);  (m) except as provided in Section 1.2, all avoidance claims or causes of action available  to Seller under Chapter 5 of the Bankruptcy Code (including Sections 544, 545, 547, 548, 549, 550 and  553) or any similar actions under any other applicable Law (collectively, “Avoidance Actions”) against the  designated parties and their respective Affiliates set forth on Schedule 1.1(m) (collectively, the “Designated  Parties”); provided, however, that it is understood and agreed by the parties that Purchaser will not pursue  or cause to be pursued any Avoidance Actions;  (n) all proceeds of any settlement from and after the date hereof through the Closing  of any claims, counterclaims, rights of offset or other causes of action of Seller against any of the Designated  Parties;  (o) any and all insurance proceeds, condemnation awards or other compensation in  respect of loss or damage to any of the Acquired Assets to the extent occurring on or after the date hereof,  and all rights and claims of Seller to any such insurance proceeds, condemnation awards or other  compensation not paid by the Closing;   (p) all security and utility deposits, credits, allowance or other assets, or charges,  setoffs, prepaid expenses, and other prepaid items to the extent Primarily Related to the Acquired Assets,   (q) the laboratory-related assets and rights located on the premises leased pursuant to  the Malvern Lease, to the extent that Purchaser notifies Seller in writing no later than the Designation  Deadline that such assets and rights (or any of them) shall be included in the Acquired Assets (the “Specified  Laboratory Equipment”); and  (r) the assets and rights set forth in Schedule 1.1(r).  Section 1.2. Excluded Assets. Notwithstanding anything contained in this Agreement to the  contrary, the Acquired Assets shall not include the following (collectively, the “Excluded Assets”):  (a) all Cash, other than any and all rights of Seller in and to any restricted cash, security  deposits, escrow deposits and cash collateral (including cash collateral given to obtain or maintain letters  of credit and cash drawn or paid on letters of credit) that are Primarily Related to the Assumed Liabilities  or the Acquired Assets;  (b) subject to Section 1.1(o), all insurance policies of Seller (including all current and  prior director and officer or similar fiduciary or errors and omissions insurance policies and all rights  thereunder and all proceeds thereof or other insurance policies as set forth on Section 3.22 of the Seller  Disclosure Schedule);  (c) any Tax credits, Tax refunds, Tax deposits, Tax attributes of Seller and prepaid  Tax amounts of the Seller;  (d) any shares of capital stock or other equity interests of Seller, any Affiliate thereof  or any other Person or any securities convertible into, exchangeable for or exercisable for shares of capital  stock or other equity interests of Seller, any Affiliate thereof or any other Person;  (e) the Retained Books and Records;  





 






  4  (f) (i) all Avoidance Actions, or any other causes of action under any other applicable  Law, against SFJ Pharmaceuticals X, Ltd. or any of its Affiliates or any Person other than any of the  Designated Parties, (ii) any proceeds of any settlement from and after the date hereof through the Closing  of any claims, counterclaims, rights of offset or other causes of action of Seller against any Person other  than any Designated Party, and (iii) all claims or causes of action of Seller other than those identified in  Section 1.1(l) and Section 1.1(m);  (g) all rights, claims or causes of action of Seller arising under this Agreement or the  Ancillary Documents, including (subject to Section 9.16) Deal Communications;  (h) all rights, claims or causes of action by or in the right of Seller against any current  or former director or officer of any Seller;  (i) all Benefit Plans, all assets of such Benefit Plans and all trust agreements,  administrative service contracts, insurance policies and other Contracts related thereto and all rights of  Seller with respect to any of the foregoing;  (j) all real property of Seller and all leases, subleases or Contracts under which Seller  occupies any real property, except to the extent specifically included as an Assigned Contract;  (k) all Contracts that are disclosed or required to be disclosed pursuant to Section 3.8;  and  (l) the other assets and rights set forth in Schedule 1.2(l).  Section 1.3. Assumed Liabilities. On the terms and subject to the conditions set forth in this  Agreement, at the Closing, in consideration for the sale, assignment, conveyance, transfer and delivery of  the Acquired Assets to Purchaser, Purchaser shall assume from Seller and agree to pay, perform and  discharge, when due, in accordance with their respective terms and subject to the respective conditions  thereof, only the following Liabilities of Seller (collectively, the “Assumed Liabilities”):  (a) all Liabilities arising under the Assigned Contracts, but only to the extent that such  Liabilities thereunder arise and are required to be performed following the Closing and do not relate to any  failure to perform, improper performance, breach of warranty or other breach, default or violation by Seller  or its Affiliates on or prior to the Closing (other than Cure Costs); and  (b) Cure Costs in an aggregate amount not to exceed the Cure Costs Cap.  The Transactions shall in no way expand the rights or remedies of any third party against Purchaser or  Seller as compared to the rights and remedies that such third party would have had against Seller absent the  Chapter 11 Case had Purchaser not assumed such Assumed Liabilities.  Section 1.4. Excluded Liabilities. Notwithstanding anything contained in this Agreement to the  contrary, neither Purchaser nor any of its Affiliates shall assume, be obligated to assume, be deemed to  have assumed, or be obliged to pay, perform or otherwise discharge, and Seller shall be solely and  exclusively liable with respect to, any Liabilities (of any nature, and whether based in common law or  statute or arising under written Contract or otherwise, known or unknown, fixed or contingent, accrued or  unaccrued, liquidated or unliquidated, asserted or unasserted) of Seller and any Affiliate thereof other than  the Assumed Liabilities (such Liabilities other than Assumed Liabilities, the “Excluded Liabilities”).  Without limiting the foregoing, Purchaser does not (nor does any of its Affiliates) assume or agree to pay,  perform or otherwise discharge the Liabilities (whether known or unknown, fixed or contingent, accrued  





 






  5  or unaccrued, liquidated or unliquidated, asserted or unasserted) of Seller or its Affiliates with respect to,  arising out of or relating to, the following Excluded Liabilities:  (a) other than the Cure Costs, any Liability arising out of facts or circumstances in  existence at or prior to the Closing or from or related to any breach, default under, failure to perform, torts  related to the performance of, violations of Law, infringements or indemnities under, guaranties pursuant  to and overcharges, underpayments or penalties on the part of Seller or any of its Affiliates under any  Contract to which Seller or any of its Affiliates is a party prior to the Closing;  (b) other than the Cure Costs, any Liability arising from or related to any Action  against Seller or its Affiliates, or related to the Business, the Acquired Assets or the Assumed Liabilities,  pending or threatened or based on facts, actions, omissions, circumstances or conditions existing, occurring  or accruing on or prior to the Closing Date even if instituted after the Closing Date;  (c) other than the Cure Costs, any Liability arising from or related to the Product or  the operation or condition of the Acquired Assets or the Assumed Liabilities at or prior to the Closing or  facts, actions, omissions, circumstances or conditions existing, occurring or accruing at or prior to the  Closing;  (d) all Indebtedness of Seller;  (e) all guarantees of third-party Indebtedness made by Seller and reimbursement  obligations to guarantors of Seller’s obligations or under letters of credit or other similar agreements or  instruments;  (f) all Liabilities arising out of or related to the matters set forth on Schedule 1.4(f);  (g) all Liabilities to any current or former owner of capital stock or other equity  interests of Seller or any securities convertible into, exchangeable or exercisable for shares of capital stock  or other equity interests of Seller, any current or former holder of indebtedness for borrowed money of  Seller or, in respect of obligations for indemnification or advancement of expenses, any current or former  officer or director of Seller;  (h) all drafts or checks outstanding at the Closing under which Seller is obligated;  (i) all Liabilities of Seller under futures contracts, options on futures, swap  agreements or forward sale agreements;  (j) all Liabilities for or in respect of Excluded Taxes;  (k) all Liabilities relating to (i) the Benefit Plans (whether arising prior to, on or after  the Closing Date) or (ii) the employment or termination of any current or former employee of Seller  (including any Transferred Employees), and including any current, threatened or potential claims for  compensation or benefits, in each such case, to the extent related to employment with Seller or termination  thereof, whether arising prior to, on or after the Closing Date;  (l) all fees, charges, expenditures, expenses, costs and other payments incurred or  otherwise payable by Seller or its affiliates, or for which Seller or its affiliates is liable, in connection with  the administration of the Chapter 11 Case or the negotiation, execution and consummation of the  Transactions (including any preparation for a transaction process, bankruptcy process, any sale process  involving other potential purchasers or any contemplated public offering or financing), including the fees  





 






  6  and expenses of financial advisors, accountants, legal counsel, consultants, brokers and other advisors with  respect thereto, whether incurred, accrued or payable on, prior to or after the date of this Agreement or the  Closing Date;  (m) any Liabilities to any (i) owner or former owner of capital stock or other equity  interests of Seller or (ii) current or former officer, director or employee of Seller;   (n) all Liabilities to the extent relating to the ownership, possession or use of the  Excluded Assets;  (o) all Liabilities (x) under Environmental Laws to the extent relating to (i) facts,  actions, omissions, circumstances or conditions existing, occurring or accruing, or noncompliance with or  violations of Environmental Laws by Seller, on or before the Closing Date, (ii) the transportation, off-site  storage or off-site disposal of any Hazardous Substances generated by or on behalf of Seller on or before  the Closing Date or (iii) real property owned, operated or leased by Seller at any time and (y) for toxic torts  arising as a result of or in connection with loss of life or injury to Persons (whether or not such loss or injury  was made manifest on or after the Closing Date); and  (p) all Liabilities of Seller or its Affiliates under this Agreement, the Ancillary  Documents and the Confidential Disclosure Agreement or from the consummation of the Transactions.  Section 1.5. Assignment of Assigned Contracts.  (a) Schedule 1.5(a) sets forth, with respect to each Contract of Seller, the amount  required to be paid with respect to each Contract to cure all monetary defaults under such Contract to the  extent required by Section 365(b) and otherwise satisfy all requirements imposed by Sections 365(b) and  (d) of the Bankruptcy Code (the actual amount of such costs with respect to the Assigned Contracts, the  “Cure Costs”). Prior to the Sale Hearing, Seller shall notify non-Seller counterparties to such Assigned  Contracts listed on Schedule 1.1(c) as of the date hereof of the deadline to object to the Cure Costs, if any,  and the Bankruptcy Court shall have determined the Cure Costs with respect to any Assigned Contract  entered into prior to the Petition Date. Notwithstanding the foregoing, prior to the Designation Deadline,  Purchaser may identify any Contract that Purchaser desires to have included as, or excluded from being, an  Assigned Contract in accordance with Section 1.5(e).  (b) To the maximum extent permitted by the Bankruptcy Code and subject to the other  provisions of this Section 1.5 (including the Cure Costs Cap), on the Closing Date, Seller shall assign the  Assigned Contracts pursuant to Section 365 of the Bankruptcy Code and the Sale Order, subject to the  provision of adequate assurance by Purchaser as may be required under Section 365 of the Bankruptcy  Code and payment by Purchaser of the Cure Costs, in respect of the Assigned Contracts.  (c) To the maximum extent permitted by the Bankruptcy Code and subject to the other  provisions of this Section 1.5, Seller shall assume and transfer and assign all of the Acquired Assets to  Purchaser and Purchaser shall assume all of the Acquired Assets from Seller, as of the Closing Date,  pursuant to Sections 363 and 365 of the Bankruptcy Code. Notwithstanding any other provision of this  Agreement or in any Ancillary Document to the contrary, this Agreement shall not constitute an agreement  to assign any asset or any right thereunder if an attempted assignment without the consent of a third party,  which consent has not been obtained prior to the Closing (after giving effect to the Sale Order and the  Bankruptcy Code), would constitute a breach or in any way adversely affect the rights of Purchaser or Seller  thereunder.  





 






  7  (d) Notwithstanding anything in this Agreement to the contrary, to the extent that the  sale, transfer, assignment, conveyance or delivery or attempted sale, transfer, assignment, conveyance or  delivery to Purchaser of any asset that would be an Acquired Asset or any claim or right or any benefit  arising thereunder or resulting therefrom is prohibited by any applicable Law or would require any consent  from any Governmental Entity or any other third party and such consents shall not have been obtained prior  to the Closing (after giving effect to the Sale Order and the Bankruptcy Code), the Closing shall proceed  without any reduction in Purchase Price without the sale, transfer, assignment, conveyance or delivery of  such asset unless there is a failure of one or more of the conditions set forth in ARTICLE VI; in which case,  the Closing shall proceed only if each failed condition is waived by the party entitled to the benefit thereof.  In the event that any failed condition is waived and the Closing proceeds without the transfer or assignment  of any such asset, then following the Closing, Purchaser and Seller shall use its reasonable best efforts,  subject to any approval of the Bankruptcy Court that may be required, and shall cooperate with the other  party, to obtain such consent as promptly as practicable following the Closing. Pending the receipt of such  consent, the parties shall, subject to any approval of the Bankruptcy Court that may be required, reasonably  cooperate with each other to provide Purchaser with all of the benefits of use of such asset. Once consent  for the sale, transfer, assignment, conveyance or delivery of any such asset not sold, transferred, assigned,  conveyed or delivered at the Closing is obtained, Seller shall promptly transfer, assign, convey and deliver  such asset to Purchaser. To the extent that any such asset cannot be transferred or the full benefits or use of  any such asset cannot be provided to Purchaser, then as promptly as practicable following the Closing,  Purchaser and Seller shall enter into such arrangements (including subleasing, sublicensing or  subcontracting), and shall reasonably cooperate with each other to provide Purchaser with all of the benefits  of use of such asset. Seller shall hold in trust for, and pay to Purchaser, promptly upon receipt thereof, all  income, proceeds and other monies received by Seller derived from their use of any asset that would be an  Acquired Asset in connection with the arrangements under this Section 1.5(d). The parties agree to treat  any asset the benefits of which are transferred pursuant to this Section 1.5(d) as having been sold to  Purchaser for Tax purposes to the extent permitted by Law. Seller and Purchaser agree to notify the other  promptly in writing if it determines that such treatment (to the extent consistent with the relevant  arrangement agreed to by Seller and Purchaser pursuant to this Section 1.5(d)) is not permitted for Tax  purposes under applicable Law. Where such treatment is not so permitted, and subject to the terms of any  relevant arrangement agreed to by Seller and Purchaser pursuant to this Section 1.5(d) (and without  duplication of any such Taxes economically borne by Purchaser or any of its Affiliates pursuant thereto),  Purchaser shall indemnify and hold harmless Seller for any Taxes imposed on Seller or any of its Affiliates  with respect to any such Acquired Asset for any Post-Closing Tax Period (determined on a “with and  without” basis).  (e) Notwithstanding anything in this Agreement to the contrary, Purchaser may, in its  sole and absolute discretion, amend or revise Schedule 1.1(c) setting forth the Assigned Contracts, in order  to add any Contract to, or eliminate any Contract from, such schedule at any time during the period  commencing from the date hereof and ending two (2) Business Days before the commencement of the  Auction (or if no Auction occurs, the date that is two (2) Business Days before the commencement of the  Sale Hearing) (the “Designation Deadline”). Automatically upon the addition of any Contract to  Schedule 1.1(c), it shall be an Assigned Contract for all purposes of this Agreement. If Purchaser adds one  or more Contracts to Schedule 1.1(c) after the date hereof and Seller has not previously notified the non- Seller counterparties to such Contracts pursuant to Section 1.5(a) (such Contracts, the “Additional Assigned  Contracts”), Seller shall file any supplemental motion required to assume and assign such Additional  Assigned Contracts and shall provide such supplemental notice as is required, and the hearing with respect  to the assumption and assignment of such Additional Assigned Contracts may occur after the Sale Hearing.  Automatically upon the removal of any Contract from Schedule 1.1(c), such Contract shall be an Excluded  Asset (and for the avoidance of doubt shall cease to be an Assigned Contract) for all purposes of this  Agreement, and no Liabilities arising thereunder shall be assumed or borne by Purchaser.  





 






  8  Section 1.6. Purchase Price; Deposit Funds.  (a) In consideration for the Acquired Assets, Purchaser shall, in addition to the  assumption of the Assumed Liabilities by Purchaser, pay the following amounts (the “Purchase Price”):  (i) Closing Consideration. (x) $40,000,000 in cash, minus (y) the Cure Costs  Deduction (the “Closing Consideration”), net of any Deposit Funds paid to Seller at the Closing pursuant  to Section 1.6(b)(i), which Closing Consideration shall be paid to Seller at the Closing.  If the Closing shall occur, at the Closing, Purchaser and Seller shall provide joint written  instructions, executed by their respective authorized representatives under the Escrow Agreement, to the  Escrow Agent that instruct the Escrow Agent to release the Deposit Funds to Seller on the Closing Date.  The Deposit Funds received by Seller shall be applied at the Closing toward the payment of the Closing  Consideration portion of the Purchase Price.  (ii) Contingent Consideration.  (A) Subject to this Section 1.6(a)(ii), in addition to the Closing  Consideration, if any of the following events (each, a “Milestone Event,” the Milestone Event set  forth in row (1) of the table below, the “FDA Accelerated Approval Milestone,” and the Milestone  Event set forth in row (2) of the table below, the “FDA Full Approval Milestone”) is achieved or  occurs, Purchaser shall pay, or cause to be paid, to Seller the amount indicated in such table  corresponding to such Milestone Event (each such payment, a “Milestone Payment” and,  collectively, the “Milestone Payments”), subject to reduction as set forth below and Purchaser’s  right to set off as set forth in Section 1.6(a)(ii)(E) and Section 7.2(d).   Milestone Event Milestone Payment  Row 1 FDA Accelerated Approval of the Product with a label  that includes both the Surgical Indication and the  Bleeding Indication.   $30,000,000  Row 2 FDA Full Approval of the Product with a label that  includes both the Surgical Indication and the Bleeding  Indication.  $30,000,000    (1) In the event that the FDA Accelerated Approval  Milestone is achieved prior to August 1, 2024, then the amount of the Milestone Payment  with respect to the achievement of the FDA Accelerated Approval Milestone (the “FDA  Accelerated Approval Milestone Payment”) shall be $30,000,000. In the event that the  FDA Accelerated Approval Milestone is achieved between August 1, 2024 and July 1,  2027, inclusive, then the FDA Accelerated Approval Milestone Payment payable by  Purchaser to Seller shall be reduced by $833,333.33 on the first day of each month during  the period from August 1, 2024 through the date of achievement of the FDA Accelerated  Approval Milestone. In the event that the FDA Accelerated Approval Milestone is achieved  on or after July 1, 2027, no amounts shall be payable with respect to the FDA Accelerated  Approval Milestone.   





 






  9  (2) If not previously achieved, the FDA Accelerated  Approval Milestone shall be deemed to be achieved immediately upon achievement of the  FDA Full Approval Milestone, and the FDA Accelerated Approval Milestone Payment in  such instance shall be as set forth in Section 1.6(a)(ii)(A)(1).   (3) In the event that the FDA Accelerated Approval  Milestone is achieved (or is deemed to be achieved) on or prior to August 1, 2027, then the  Milestone Payment payable upon achievement of the FDA Full Approval Milestone (the  “FDA Full Approval Milestone Payment”) shall be $30,000,000. In the event that the FDA  Accelerated Approval Milestone is achieved (or is deemed to be achieved) between August  1, 2027 and July 1, 2030, inclusive, then the FDA Full Approval Milestone Payment  payable by Purchaser to Seller shall be reduced by $833,333.33 on the first day of each  month during the period from August 1, 2027 through the date of achievement (or deemed  achievement) of the FDA Accelerated Approval Milestone. In the event that the FDA  Accelerated Approval Milestone is achieved (or is deemed to be achieved) on or after July  1, 2030, no amounts shall be payable with respect to the FDA Full Approval Milestone.   (4) By way of example and not of limitation, if the FDA Full  Approval Milestone is achieved on July 1, 2025 and the FDA Accelerated Approval  Milestone had not separately been achieved prior to such date, then the FDA Accelerated  Approval Milestone Payment would be $20,000,000 and FDA Full Approval Milestone  Payment would be $30,000,000; if the FDA Full Approval Milestone is achieved on July  1, 2027 and the FDA Accelerated Approval Milestone had not separately been achieved  prior to such date, then no amount would be payable for the FDA Accelerated Approval  Milestone and the FDA Full Approval Milestone Payment would be $30,000,000; and if  the FDA Full Approval Milestone is achieved on July 1, 2028 and the FDA Accelerated  Approval Milestone had not separately been achieved prior to such date, then no amount  would be payable for the FDA Accelerated Approval Milestone and the FDA Full Approval  Milestone Payment would be $20,000,000.  (5) In the event that Seller issues a Cost Concern Notice  pursuant to Section 1.6(a)(ii)(G), then notwithstanding any other provision of this  Agreement to the contrary, the obligation to pay the applicable Milestone Payment shall  not be deemed to have been triggered until such dispute is resolved in accordance with  Section 1.6(a)(ii)(G).   (6) For the avoidance of doubt, in no event will any Milestone  Payment be payable more than once with respect to either Milestone Event, and the  maximum total Milestone Payments payable hereunder shall equal $60,000,000.  (B) Promptly (and, in any event, no later than fifteen (15) Business  Days) following achievement of a Milestone Event, Purchaser shall notify Seller in writing of such  achievement. Each Milestone Payment shall be paid promptly (and, in any event, no later than  thirty (30) days after receipt by Purchaser of a written invoice from Seller requesting payment of  the relevant Milestone Payment, including a reference to the Milestone Event, the amount  requested to be paid and the bank account to which payment should be made).  (C) From and after the Closing, Purchaser (either itself or through its  Affiliates, licensees or sublicensees) shall use Diligent Efforts to achieve each of the Milestone  Events.  





 






  10  (D) Solely for so long as at least one of the Milestone Payments may  reasonably become payable in accordance herewith, Purchaser shall provide reasonable written  updates (at least once annually following Closing) to Seller regarding the status of Purchaser’s  efforts to attempt to achieve each Milestone Event.  (E) In the event that the FDA requires, or otherwise conditions its  approval upon, the conduct of any Additional Approval Requirements in order to obtain the  Regulatory Authorization contemplated by the FDA Accelerated Approval Milestone or the FDA  Full Approval Milestone, then Purchaser shall have the right to set off 100% of all out-of-pocket  fees, charges, expenditures, expenses, costs and other payments reasonably incurred or that will  be (or that Purchaser estimates in its reasonable discretion to be) reasonably incurred by Purchaser  or any of its Affiliates with respect to the Additional Approval Requirements (“AAR Costs”)  against the Milestone Payments payable hereunder. The exercise of such right of setoff by  Purchaser in good faith, whether or not ultimately determined to be justified, will not constitute  an event of default hereunder. Neither the exercise of nor the failure to exercise such right of setoff  will, in and of itself, constitute an election of remedies or limit any Purchaser Indemnified Party  in any manner in the enforcement of any remedies that may be available to it. In the event  Purchaser exercises such right of setoff, Purchaser and Seller shall cooperate to draft adequate  supporting documents, where needed, including invoices or credit/debit notes.   (F) Concurrent with Purchaser’s notice of each Milestone Event  provided to Seller pursuant to Section 1.6(a)(ii)(B), Purchaser shall provide Seller with a  reasonably detailed calculation (to the extent then known) of Purchaser’s AAR Costs with respect  to such Milestone Event (“AAR Cost Calculation”). If Purchaser fails to provide such AAR Cost  Calculation within twenty (20) Business Days of such notice submitted by Purchaser pursuant to  Section 1.6(a)(ii)(B) for such Milestone Event, then Seller shall provide Purchaser written notice  of such failure, and thereafter Purchaser shall have an additional five (5) Business Days from  Purchaser’s receipt of such notice from Seller to deliver such AAR Cost Calculation to Seller.  Thereafter, in the event that Purchaser fails to deliver the AAR Cost Calculation to Seller prior to  expiration of such additional five (5)-Business Day period, then Purchaser shall not be permitted  to setoff such AAR Costs (that would otherwise have been included within such AAR Cost  Calculation) from the corresponding Milestone Payment for such Milestone Event. Upon the  reasonable written request of Seller, Purchaser shall make available to Seller reasonable  supporting documentation with respect to the AAR Cost Calculation set forth therein within ten  (10) Business Days of such request. For the avoidance of doubt, Purchaser's failure to include  AAR Costs in the AAR Cost Calculation for the first Milestone Event achieved by Purchaser will  not limit in any way Purchaser's right to include such AAR Costs in the AAR Cost Calculation  with respect to the second Milestone Event.  (G) If Seller reasonably believes that Purchaser’s AAR Cost  Calculation is overstated as compared to the AAR Costs actually or estimated in Purchaser’s  reasonable discretion to be incurred based on Purchaser’s supporting documentation (the  “Documented AAR Costs”), Seller may give written notice to Purchaser to that effect within thirty  (30) days of such AAR Cost Calculation hereunder (“Cost Concern Notice”). In the event Seller  fails to deliver the Cost Concern Notice within such thirty (30) day period, Seller shall be deemed  to have accepted the amount of the AAR Cost Calculation identified by Purchaser and shall thus  waive any further objections to such AAR Cost Calculation. If Seller timely delivers the Cost  Concern Notice to Seller, the parties shall discuss in good faith to resolve Seller’s concerns. If the  parties are unable to resolve the dispute within fifteen (15) days (or such other period as may be  mutually agreed by the parties in writing) after Seller has delivered the Cost Concern Notice to  Purchaser, either party may submit such dispute in writing to the Financial Officers for resolution,  





 






  11  specifying the nature thereof with sufficient specificity to permit adequate consideration by such  Financial Officers. The Financial Officers shall diligently and in good faith attempt to resolve the  referred dispute within a ten (10) Business Day period (or such other period as may be mutually  agreed by the parties in writing). Any final decision mutually agreed to by the Financial Officers  in writing shall be conclusive and binding on the parties. In the event the Financial Officers are  unable to resolve any such dispute within such ten (10) Business Day period (or such other period  as may be mutually agreed by the parties in writing), the parties shall jointly engage the  Independent Accountant to examine the books and records of Purchaser as may be reasonably  necessary to determine or verify the AAR Cost Calculation. The Independent Accountant shall  conduct such examination, and Purchaser shall make its employees and books and records  reasonably available for such purpose, during normal business hours at the facilities where such  books and records are maintained. Purchaser may require the Independent Accountant to sign a  reasonably acceptable non-disclosure agreement before providing the Independent Accountant  with access to Purchaser’s or its Affiliates’ facilities or records. The Independent Accountant will  prepare and provide to each party a written report as soon as reasonably practicable. Seller shall  be responsible for all the fees and expenses charged by the Independent Accountant for purposes  of this Section 1.6(a)(ii)(G), unless such audit reveals that the amount of the AAR Cost Calculation  was at least 10% higher than the Documented AAR Costs incurred and estimated to be incurred  as identified by Purchaser, in which case Purchaser will be responsible for all the fees and expenses  charged by the Independent Accountant for purposes of this Section 1.6(a)(ii)(G). If the  Documented AAR Costs are finally determined by the Independent Accountant to be less than the  AAR Cost Calculation (the “Final Documented AAR Costs”), then, Purchaser shall promptly  update the AAR Cost Calculation previously provided to Seller to reflect the Final Documented  AAR Costs and Seller shall issue an invoice thereon and Purchaser make such Milestone Payment  (with offset for such Final Documented AAR Costs) in accordance with Section 1.6(a)(ii)(B) and  Section 1.6(a)(ii)(E). To the extent Purchaser exercised such setoff right with respect to a given  Milestone Payment and the portion of the actual AAR Costs Purchaser incurred with respect to  such Milestone Event (the “Actual Costs”) that correspond to the estimated costs within the final  and binding AAR Cost Calculation or Final Documented AAR Cost schedule for such Milestone  Event (the “Estimated Costs”) are less than such Estimated Costs (such excess Estimated Costs,  the “Excess Setoff Costs”), then provided such Excess Setoff Costs are in excess of $10,000,  Purchaser shall notify and coordinate with Seller to provide Seller with a cash true-up in the  amount of such Excess Setoff Costs. The foregoing true-up shall only apply with respect to Actual  Costs that are incurred within twelve (12) months of the date of Purchaser’s payment of the  applicable Milestone Payment to which such Excess Setoff Costs relate.  (H) All Milestone Payments shall be (i) made in United States dollars  by wire transfer of immediately available funds to an account designated by Seller and (ii) unless  otherwise required by applicable Law, treated as adjustments to the Purchase Price for all Tax  purposes. The right of Seller to receive the Milestone Payments, if and when such Milestone  Payments become due and payable, (i) does not give Seller dividend rights, voting rights,  liquidation rights, preemptive rights or other rights of holders of equity of Purchaser following the  Closing; (ii) shall not be evidenced by a certificate or other instrument; (iii) shall be freely  transferable or distributable by Seller, on written notice to Purchaser; and (iv) does not represent  any right other than the right of Seller (or its successors or assigns) to receive, and to enforce, the  Milestone Payments in accordance with this Section 1.6(a)(ii)(F). If Seller transfers or assigns its  right to receive the Milestone Payments to a third party, all of Purchaser’s obligations pursuant to  Section 1.6(a)(ii)(D) shall immediately cease, effective upon such transfer or assignment. For the  avoidance of doubt, any assignment of the right of Seller to receive the Milestone Payments to a  third party covers only money due or to become due pursuant to this Agreement.  





 






  12  (b) Within three (3) Business Days following the execution of this Agreement, subject  to the execution of the escrow agreement substantially in the form attached hereto as Exhibit F (the “Escrow  Agreement”), with Acquiom Clearinghouse LLC (the “Escrow Agent”), Purchaser shall deposit into escrow  with the Escrow Agent an amount equal to $4,000,000 (such amount, together with all interest and other  earnings accrued thereon, the “Deposit Funds”), by wire transfer of immediately available funds pursuant  to the terms of the Escrow Agreement. The Deposit Funds shall be released by the Escrow Agent and  delivered to either (x) Purchaser or (y) Seller, as follows:  (i) if the Closing shall occur, the Deposit Funds shall be applied towards the  portion of the Purchase Price payable by Purchaser to Seller pursuant to Section 1.6(a)(i) and in such  case, the Deposit Funds shall be released to Seller within three (3) Business Days following the Closing;  (ii) if this Agreement is terminated by Seller (A) pursuant to Section 8.1(b)(iii)  or (B) pursuant to Section 8.1(a) in any circumstance where Purchaser is not entitled to terminate  pursuant to Section 8.1(a) because the failure of the Closing to occur results from the material breach  by Purchaser of its obligations under Section 5.3 required to be performed by it at or prior to the Closing,  in each case unless at the time of such termination Purchaser would have been entitled to terminate this  Agreement, then the Deposit Funds shall be released to Seller within five (5) Business Days following  such termination; or  (iii) if this Agreement is terminated other than in a manner provided by Section  1.6(b)(ii), in addition to Purchaser’s rights pursuant to Section 8.2(b) and Section 8.2(c), the Deposit  Funds shall be released to Purchaser within five (5) Business Days after such termination.  Section 1.7. Withholding. Notwithstanding anything to the contrary in this Agreement,  Purchaser shall be entitled to deduct and withhold from any consideration payable hereunder such amounts  as are required to be deducted and withheld with respect thereto under the Code or any other Tax Law,  provided that, absent a change in applicable Law after the date hereof, no amounts shall be deducted or  withheld under the Tax Laws of Italy. To the extent that amounts are so deducted and withheld, such  amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of  which such deduction or withholding was made. Notwithstanding the foregoing, Purchaser shall: (i) consult  with Seller in good faith prior to withholding any amounts payable to Seller, (ii) promptly, and in any event  no later than five (5) Business Days prior to the date of the applicable payment, notify Seller in writing if  Purchaser determines that any withholding or deduction is required under the Code or any applicable Law  with respect to any portion of payment to Seller, (iii) provide Seller with reasonable opportunity to provide  such forms or other evidence that would eliminate or reduce any such required deduction or withholding,  and (iv) if a change in applicable Law requires amounts to be deducted or withheld under the Tax Laws of  Italy, use commercially reasonable efforts to reduce or eliminate such required deduction or withholding,  including by establishing eligibility for a reduced withholding rate under the Tax treaty between the United  States and Italy.  Section 1.8. Purchase Price Allocation. The parties agree to allocate for Tax purposes (and, as  applicable, to cause their respective Affiliates to allocate for Tax purposes) the Purchase Price and any other  amounts treated as additional consideration for Tax purposes among the Acquired Assets in accordance  with the following procedures and, to the extent applicable, in accordance with Section 1060 of the Code  and the Treasury Regulations promulgated thereunder. Within ninety (90) days after the Closing Date,  Purchaser shall deliver to Seller a proposed allocation of the Purchase Price, the Assumed Liabilities (to  the extent properly taken into account for income Tax purposes) and any other amounts treated as additional  consideration for income Tax purposes as of the Closing Date (the “Allocation”). If Seller notifies Purchaser  in writing of any reasonable objections to one or more items reflected in the Allocation within thirty (30)  days after Purchaser’s delivery thereof, Seller and Purchaser shall negotiate in good faith to resolve such  





 






  13  dispute. If Purchaser and Seller cannot resolve such dispute within twenty (20) days after Seller notifies  Purchaser of such objections, such dispute shall be promptly resolved by the Independent Accountant. The  fees and expenses of the Independent Accountant shall be borne equally by Seller and Purchaser. The  Allocation (including as finally determined by the Independent Accountant) shall be final and binding on  the parties, and each of the parties (a) shall (and shall cause its Affiliates to) prepare and file all Tax Returns  (and Internal Revenue Service Forms 8594) in a manner consistent with the Allocation and (b) shall not  (and shall cause its Affiliates not to) take any position on any Tax Return or in connection with any Tax  proceeding inconsistent with the Allocation, in each case, except to the extent otherwise required by a  “determination” within the meaning of Section 1313(a) of the Code (or any analogous provision of  applicable state, local or non-U.S. Law).  ARTICLE II  THE CLOSING  Section 2.1. Closing. Upon the terms and subject to the conditions hereof, the closing of the  sale of the Acquired Assets and the assumption of the Assumed Liabilities contemplated hereby (the  “Closing”) shall take place remotely by exchange of documents and signatures via email or other manner  as may be mutually agreed upon by Purchaser and Seller, at 10:00 a.m. Eastern Time as soon as possible  (and in any event within two (2) Business Days) after the conditions set forth in ARTICLE VI have been  satisfied or (if permissible) waived (except for such conditions that, by their nature, are to be satisfied at  the Closing, but subject to the satisfaction or (if permissible) waiver thereof at the Closing), or at such time,  date and place as the parties may mutually agree (the date of the Closing being herein referred to as the  “Closing Date”). For financial, accounting and economic purposes, including risk of loss, and for all other  purposes under this Agreement, upon the occurrence of the Closing, the Closing shall be deemed to have  occurred at 12:01 a.m. Eastern Time, on the Closing Date.  Section 2.2. Deliveries at the Closing.  (a) At the Closing, Seller shall deliver to Purchaser:  (i) a duly executed bill of sale and assignment and assumption agreement  substantially in the form of Exhibit A (the “Bill of Sale & Assignment and Assumption Agreement”),  transferring the Acquired Assets and Assumed Liabilities to Purchaser (or its designated Affiliate or  Affiliates);  (ii) the Acquired Assets; provided, that with respect to tangible Acquired  Assets, delivery shall, unless the parties otherwise mutually agree, be as set forth in Schedule 2.2(a)(ii);  (iii) duly executed assignments of Seller Intellectual Property, including the  Seller Registered Intellectual Property, substantially in the forms of Exhibit B (the “Intellectual Property  Assignment Agreements”);  (iv) a duly executed and properly completed IRS Form W-9 or other  certification meeting the requirements of Treasury Regulation section 1.1445-2(b);  (v) the certificates described in Section 6.3(f);  (vi) a copy of the Sale Order entered by the Bankruptcy Court;   





 






  14  (vii) a duly executed transition services agreement to be entered into between  Seller and Purchaser (or its designated Affiliate or Affiliates) substantially in the form of Exhibit G (the  “Transition Services Agreement”);   (viii) the Closing Inventory Schedule; and  (ix) such other instruments of sale, transfer and conveyance consistent with the  terms and provisions of this Agreement as Purchaser may reasonably request in writing no later than  three (3) Business Days prior to the Closing Date in order to give effect to the Acquisition.  (b) At the Closing, Purchaser shall deliver to Seller:  (i) the Closing Consideration (including any portion of the Purchase Price to  be paid by release of the Deposit Funds to Seller) by wire transfer of immediately available funds to an  account or accounts designated by Seller;  (ii) the Intellectual Property Assignment Agreements, duly executed by  Purchaser (or its designated Affiliate or Affiliates);  (iii) the certificate(s) described in Section 6.2(d);  (iv) the Bill of Sale & Assignment and Assumption Agreement, duly executed  by Purchaser (or its designated Affiliate or Affiliates);  (v) the Transition Services Agreement, duly executed by Purchaser;  (vi) evidence of the payment, satisfaction, compromise or waiver of all Cure  Costs to the applicable Assigned Contract counterparties; and  (vii) such other instruments of sale, transfer and conveyance consistent with the  terms and provisions of this Agreement as Seller may reasonably request in writing no later than three  (3) Business Days prior to the Closing Date in order to give effect to the Acquisition.  (c) At the Closing, Seller and Purchaser shall deliver to the Escrow Agent, the joint  written instructions contemplated by Section 1.6(b)(i), duly executed by Seller and Purchaser.  ARTICLE III  REPRESENTATIONS AND WARRANTIES OF SELLER  Seller represents and warrants to Purchaser, as of the date hereof and as of the Closing, as  follows:  Section 3.1. Qualification, Organization, Subsidiaries. Seller is a legal entity duly organized,  validly existing and in good standing under the Laws of Delaware and has all requisite corporate power and  authority to own, lease and operate its properties and assets and to carry on its business as presently  conducted, subject to the provisions of the Bankruptcy Code. Seller is qualified to do business and is in  good standing (with respect to jurisdictions that recognize such concept) as a foreign corporation or other  entity in each jurisdiction where the ownership, leasing or operation of its assets or properties or conduct  of its business requires such qualification, except where the failure to be so qualified or, where relevant, in  good standing, has not had and would not reasonably be expected to have, individually or in the aggregate,  a Material Adverse Effect. Seller has made available to Purchaser a complete and accurate copy of the  





 






  15  organizational documents of Seller as in effect on the date hereof. Seller is not in violation of any of the  provisions of its certificate of incorporation or bylaws. Seller does not have any Subsidiaries.  Section 3.2. Authority of Seller. Seller has all requisite corporate power and authority to  execute and deliver and, subject to the entry and effectiveness of the Bidding Procedures Order and Sale  Order, to perform its obligations under this Agreement and each of the Ancillary Documents to which Seller  is a party. The execution, delivery and performance of this Agreement and such Ancillary Documents by  Seller and the consummation of the Transactions have been duly and validly authorized and approved by  all requisite corporate action of Seller, and no other corporate proceedings (pursuant to Seller’s  organizational documents or otherwise) on the part of Seller is necessary to authorize the consummation  of, and to consummate, the Transactions. Subject to the entry and effectiveness of the Bidding Procedures  Order and Sale Order, this Agreement and each such Ancillary Document have been duly and validly  executed and delivered by Seller, and, assuming the due authorization, execution and delivery of this  Agreement and each such Ancillary Document by Purchaser, as applicable, constitute a valid and binding  agreement of Seller, enforceable against Seller in accordance with its terms.  Section 3.3. Consents and Approvals. No consent, approval, permit or authorization of, or  declaration, filing or registration with, any Governmental Entity is necessary or required to be made or  obtained by Seller or its Affiliates in connection with the execution, delivery and performance of this  Agreement and the Ancillary Documents to which Seller is a party and the consummation of the  Transactions, except in connection with or compliance with any applicable requirements of the Chapter 11  Case.  Section 3.4. No Violations. Except as described in Section 3.4 of the Seller Disclosure  Schedule, neither the execution, delivery or performance of this Agreement and the Ancillary Documents  by Seller nor the consummation by Seller of the Transactions will (a) conflict with or result in any violation  or breach of any provisions of the certificate of incorporation, bylaws or other organizational documents of  Seller, (b) with or without notice or lapse of time or both, conflict with or result in any breach or violation  of or constitute a default or change of control under, or give rise to a right of, or result in, termination,  modification, cancellation, first offer, first refusal or acceleration of any obligation or to the loss of a benefit  under any Contract to which Seller is a party or by or to which any of its properties, rights or assets are  bound or subject, (c) conflict with or violate any Order or Law applicable to Seller, the Business or the  Acquired Assets or (d) result in the creation or imposition of any Encumbrance on any Acquired Asset  other than (i) with respect to the execution and delivery of this Agreement, Permitted Pre-Closing  Encumbrances and (ii) with respect to the execution and delivery of the Ancillary Documents and with  respect to the performance of this Agreement and the Ancillary Documents and the consummation of the  Transactions, the Permitted Post-Closing Encumbrances, except in the case of the foregoing clauses (b) and  (c), for breaches, violations, defaults or terminations that (y) would not reasonably be expected to be  material to the Acquired Assets or the Business or (z) are excused by or unenforceable as a result of the  entry or effectiveness of the Sale Order.  Section 3.5. Financial Statements; Books and Records.  (a) The financial statements (including all related notes and schedules) of Seller  included or incorporated by reference in Seller SEC Documents (the “Financial Statements”) when filed,  complied in all material respects with the applicable accounting requirements and the published rules and  regulations of the SEC with respect thereto and fairly present in all material respects the consolidated  financial position of Seller, as at the respective dates thereof, and the results of its operations and its cash  flows for the respective periods then ended (subject, in the case of the unaudited quarterly financial  statements, to normal year-end audit adjustments that are not material and the absence of notes) in  conformity with GAAP, applied on a consistent basis during the periods involved (except as indicated in  





 






  16  the notes thereto including, in the case of the unaudited quarterly financial statements, for normal and  recurring year-end adjustments that are not material and for the absence of notes).  (b) Seller has established and maintains, and at all times since January 1, 2019 has  maintained, disclosure controls and procedures and internal control over financial reporting (as such terms  are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by  Rule 13a-15 under the Exchange Act designed to provide reasonable assurance regarding the reliability of  financial reporting and the preparation of financial statements for external purposes in accordance with  GAAP, and which includes policies and procedures that: (a) pertain to the maintenance of records that in  reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of Seller, (b)  provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial  statements in conformity with GAAP and that receipts and expenditures are being made only in accordance  with authorizations of management and directors of Seller and (c) provide reasonable assurance regarding  prevention or timely detection of unauthorized acquisition, use or disposition of the assets of Seller that  could have a material effect on the financial statements. Since January 1, 2019, Seller’s principal executive  officer and its principal financial officer have disclosed to Seller’s auditors and the audit committee of  Seller’s Board of Directors (which disclosure (if any) and significant facts learned during the preparation  of such disclosure have been made available to Purchaser prior to the date hereof) (i) any significant  deficiencies and material weaknesses in the design or operation of internal controls over financial reporting,  (ii) any fraud, whether or not material, that involves management or other employees and (iii) any claim or  allegation regarding any of the foregoing. Since January 1, 2019, Seller has not received any material,  unresolved, complaint, allegation, assertion or claim regarding the accounting or auditing practices,  procedures, methodologies or methods of Seller or its internal accounting controls.  (c) The Books and Records maintained with respect to the Business and used in the  preparation of the Financial Statements accurately and fairly reflect, in all material respects, the transactions  and the assets and Liabilities of Seller with respect to the Business.  Section 3.6. Title to Property; Sufficiency of Assets.  (a) Seller has good, valid, and marketable title to, a valid leasehold interest in or all  rights to use, all of the Acquired Assets, free and clear of all Encumbrances other than Permitted Pre- Closing Encumbrances. In furtherance and not in limitation of the foregoing, Seller exclusively owns (or at  Closing will exclusively own) all right, title and interest in and to the Trial Data Package (as defined in that  certain Co-Development Agreement dated January 9, 2020 between Seller and SFJ Pharmaceuticals X  Limited), free and clear of all Encumbrances. Upon the entry and effectiveness of the Sale Order, Seller  will have the power and right to sell, assign, transfer, convey and deliver, as the case may be, to Purchaser  the Acquired Assets, and at the Closing, Seller will sell, assign, transfer, convey and deliver to Purchaser  good, valid and marketable title to, or, in the case of personal property leased by Seller, a valid leasehold  interest in, or all rights to use, the Acquired Assets, free and clear of all Encumbrances other than Permitted  Post-Closing Encumbrances.  (b) The Acquired Assets (x) constitute all of the assets, rights and properties Primarily  Related to the Product or the Business and (y) are sufficient to conduct the Business in all material respects  as it is currently conducted and as proposed to be conducted.  Section 3.7. Absence of Certain Changes.  (a) Except as set forth on Section 3.7 of the Seller Disclosure Schedule, since June 30,  2022, (i) the Business has been conducted in all material respects in the Ordinary Course of Business, except  





 






  17  for the filing of the Chapter 11 Case, and (ii) Seller has not taken any action that, if taken after the date  hereof, would constitute a breach of, or require the consent of Purchaser under, Section 5.1.  (b) Since June 30, 2022, except for the consequences arising from the filing of the  Chapter 11 Case, there has not occurred any Effect that has had, or would reasonably be expected to have,  individually or in the aggregate, a Material Adverse Effect.  (c) Since June 30, 2022, Seller has not sold or transferred any portion of its assets or  property that would be material to the Business as a whole, except for sales of inventory and transfers of  cash in payment of trade payables in the Ordinary Course of Business.  Section 3.8. Brokers or Finders. Other than as set forth on Section 3.8 of the Seller Disclosure  Schedule, Seller has not employed or engaged any investment banker, broker or finder who is entitled to  any fee or any commission in connection with this Agreement, the Ancillary Documents or the  Transactions.  Section 3.9. Litigation. Except as set forth in Section 3.9 of the Seller Disclosure Schedule,  there are no Actions pending or, to the Knowledge of Seller, threatened against Seller or relating to the  Business or the Acquired Assets by or before, and there are no orders, judgments or decrees of or settlement  agreements with, any Governmental Entity.  Section 3.10. Intellectual Property.  (a) (1) Section 3.10(a)(1) of the Seller Disclosure Schedule sets forth a true, accurate,  and complete list, as of the date hereof, of all Patents owned by Seller and included in the Seller Intellectual  Property, (2) Section 3.10(a)(2) of the Seller Disclosure Schedule sets forth a true, accurate, and complete  list, as of the date hereof, of all Patents exclusively licensed to Seller and included in the Seller Intellectual  Property, (3) Section 3.10(a)(3) of the Seller Disclosure Schedule sets forth a true, accurate, and complete  list, as of the date hereof, of all registered and material unregistered Trademarks and Copyrights owned by,  or exclusively licensed to Seller and included in the Seller Intellectual Property, and (4) Section 3.10(a)(4)  of the Seller Disclosure Schedule sets forth a true, accurate, and complete list, as of the date hereof, of all  material Internet Properties owned by, or exclusively licensed to Seller and included in the Seller  Intellectual Property, in each case ((1), (2) and (3)) including the jurisdiction in which each item has been  registered or filed, application or serial number or similar identifier, the filing date, the applicable issuance,  registration or grant date, and with respect to the foregoing Seller Intellectual Property that is exclusively  licensed to Seller, the applicable Contract pursuant to which such license to Seller is granted. Without  limiting the generality of the foregoing:   (i) No Trademark (whether registered or unregistered) or trade name used by  Seller in connection with the Product or the conduct of the Business conflicts or interferes with any  Trademark (whether registered or unregistered) or trade name owned, used or applied for by any Third  Party.  (ii) All necessary filing, examination, registration, maintenance, annuity and  renewal fees due or actions required (including proofs and working or use) in connection with the Seller  Registered Intellectual Property listed or required to be listed on Section 3.10(a) of the Seller Disclosure  Schedule and having a due date on or before the date hereof have been paid or taken, as the case may  be, and except as set forth in Section 3.10(a)(ii) of the Seller Disclosure Schedule, none of the Seller  Registered Intellectual Property is subject to any filing, examination, registration, maintenance, annuity  and renewal fees falling due or actions required (including proofs of working or use) within six (6)  months after Closing.  





 






  18  (iii) Seller has complied in all material respects with all applicable Law in  filing and prosecuting each item of the Seller Intellectual Property owned or licensed by Seller and all  filings, payments and other actions required to be made or taken to maintain each item thereof in full  force and effect have been made by the applicable deadline.  (iv) No interference, opposition, reissue, reexamination or other Action of any  nature is or has been pending or, to Knowledge of the Seller, threatened, in which the scope, validity or  enforceability of any Seller Intellectual Property is being, has been or could reasonably be expected to  be contested or challenged.  (v) All necessary documents, recordations and certificates necessary to  establish, secure and perfect the rights of Seller in the Seller Intellectual Property have been validly  executed, delivered and to the extent applicable, filed in a timely manner with the relevant Governmental  Entity in all applicable jurisdictions for the purposes of maintaining rights to such Seller Intellectual  Property.  (b) Seller exclusively owns, or has exclusively licensed from the applicable third party  with the right to sublicense, all right, title and interest in and to all Seller Intellectual Property, including all  Seller Registered Intellectual Property, free and clear of any Encumbrances, except for Permitted Pre- Closing Encumbrances. Following the Closing, Purchaser will exclusively own, or have an exclusive  license from the applicable third party with the right to sublicense, all right, title and interest in and to all  Seller Intellectual Property, including all Seller Registered Intellectual Property, free and clear of any  Encumbrances, except for Permitted Post-Closing Encumbrances. Without limiting the generality of the  foregoing, all Seller Intellectual Property is fully exercisable, transferable, alienable and licensable and  sublicensable by Seller, and following the Closing, will be fully exercisable, transferable, alienable and  licensable and sublicensable by Purchaser without restriction and without payment of any kind to any third  party. No Seller Intellectual Property is or was subject to any Action, Order, or settlement agreement that  restricts in any material respect the exercise, use, provision, transfer, assignment or licensing and  sublicensing thereof, as the case may be, by Seller or that may affect the exercise, validity, ownership, use,  enforceability, or defense of any Seller Intellectual Property. Each item of Seller Registered Intellectual  Property is subsisting, and to the Knowledge of Seller, not unenforceable or invalid.  (c) Seller is not a party to nor has Seller initiated or threatened any Action that  challenges the legality, validity, enforceability, registration, use or ownership of a third party’s Intellectual  Property.  (d) Seller has not granted, conveyed, or transferred (and is not obligated to grant,  convey, or transfer) to any Person and is not obligated to permit any Person to retain an ownership interest,  including any joint ownership interest, or any exclusive rights in any Intellectual Property that is or was  Seller Intellectual Property.  (e) No Actions are pending or, to the Knowledge of Seller, threatened against Seller  or any third party who may be entitled to be indemnified, defended, held harmless or reimbursed by Seller  with respect to such Action, alleging that Seller or such third party is infringing, misappropriating, diluting  or otherwise violating the Intellectual Property of any Person. Neither the operation of the Business, nor  the Product or Exploitation thereof, (i) infringes, misappropriates, or violates (or has in the past infringed,  misappropriated, or violated to the extent there is any current Liability therefor or a Liability is reasonably  expected to arise) any Intellectual Property of any Person and (ii) following the Closing will (when  conducted in substantially the same manner by Purchaser), infringe or misappropriate any Intellectual  Property of any Person, in each case except as would not result in any material Liability to Seller. Seller  has not received any written offer to license, charge, complaint, claim, demand, notice or other written  





 






  19  communication or notice from any Person that would reasonably be construed to be claiming that the  operation of the Business, or the Product or Exploitation thereof, conflicts with, infringes, misappropriates,  or violates any Intellectual Property of any Person or constitutes unfair competition or trade practices under  the Laws of any jurisdiction.  (f) Seller has not brought, or threatened in writing to bring, any Action against a third  party alleging infringement or, misappropriation or violation of any Seller Intellectual Property. To the  Knowledge of Seller, none of the Seller Intellectual Property have been or are being infringed,  misappropriated or otherwise violated by any Person.  (g) In each case in which Seller has engaged or hired an officer, employee, consultant  or contractor (whether current or former) who has or had or does have access to Seller Intellectual Property,  or who contributes or contributed to developing or creating any Seller Intellectual Property, Seller has  entered into a written agreement with such Person regarding the protection of proprietary information and  obtained a written assignment or transfer of (and waiver of such Person’s moral rights in) all such  Intellectual Property to Seller or Seller otherwise is the owner of such Intellectual Property by operation of  Law, including all right, title and interest therein. Seller has taken commercially reasonable actions to  maintain and protect the confidentiality and trade secret status of all Know-How of Seller, or any third  party, in its possession or used or held for use in the Business or Exploitation of the Product in any  jurisdiction. To the Knowledge of Seller, there has been no unauthorized disclosure of any Know-How that  constitutes Seller Intellectual Property.  (h) (x) Section 3.10(h)(x) of the Seller Disclosure Schedule sets forth a true, accurate  and complete list of all Contracts that grant Seller a license (including covenants not to sue), whether  exclusive or non-exclusive, ownership rights, or other rights in or to (1) any Seller Intellectual Property or  (2) any other Intellectual Property or technology (including any Software) owned by a third party that is  material to the operation of the Business or Exploitation of the Product, other than Ordinary Course  Licenses, and (y) Section 3.10(h)(y) of Seller Disclosure Schedule sets forth a true and complete list of all  material Contracts to which Seller is a party under which Seller grants any third party a license or sublicense  (including covenants not to sue), whether exclusive or non-exclusive, or other rights in or to any Seller  Intellectual Property, other than non-material non-exclusive licenses or sublicenses pursuant to written  agreements entered into in the Ordinary Course of Business (the foregoing ((x) and (y)), together with the  Ordinary Course Licenses, the “IP Contracts”).  (i) The consummation of the Transactions will not result in (i) a material breach,  violation, modification, cancellation, termination, or suspension of any rights under the IP Contracts set  forth on Schedule 1.1(c), (ii) the grant of (or requirement to grant) any material license, covenant not to  assert, release, agreement not to enforce or prosecute, or other immunity to any Seller Intellectual Property  (or any Intellectual Property of Purchaser) to any Person, or (iii) Purchaser being obligated to perform any  material obligations for, or pay any material royalties, or other material amounts, to any third party in excess  of those payable or performable by, or required to be offered by, any of them, respectively, in the absence  of this Agreement or the Transactions.  (j) All IP Contracts that are Assigned Contracts, set forth on Schedule 1.1(c) of the  Seller Disclosure Schedule, are in full force and effect, and are fully transferable and assumable by  Purchaser pursuant to the Transactions and shall remain in full force and effect and transferable and  assumable following the Closing in accordance with their terms, and, as of immediately after the Closing,  Purchaser will be entitled to exercise all of Seller’s rights under all IP Contracts to the same extent as prior  to the Closing.  





 






  20  (k) Except as set forth on Section 3.10(k) of the Disclosure Schedule, Seller is not  obligated to pay to any Person any royalties, fees, commissions or other amounts for the use by Seller of  any Seller Intellectual Property, other than as provided in the Assigned Contracts.  Section 3.11. Privacy and Data Protection.  (a) Seller’s receipt, collection, maintenance, transmission, use, analysis, disclosure,  storage and disposal of Protected Information and, to the Knowledge of Seller, any such activities  performed by third parties on Seller’s behalf, has complied in all material respects with (i) applicable  Information Privacy and Security Laws and (ii) all applicable policies and procedures (which meet or  exceed applicable industry standards) adopted by Seller relating to Protected Information, including the  Privacy Statements. Seller has executed Business Associate Agreements (as such agreements are defined  in HIPAA) with any Business Associate (as defined in HIPAA), in compliance with HIPAA. Seller has  obtained all consents and authorizations necessary to receive, access, use, disclose, and transfer to Purchaser  the Protected Information in its possession or under its control in connection with the operation of the  Business. Seller has complied in all material respects with its published privacy policies as in effect from  time to time.  (b) There has been no material data security breach or unauthorized access to, as the  case may be, any of Seller’s material systems, networks or information technology that transmits or  maintains Protected Information or other incidents involving the unauthorized access, acquisition, use or  disclosure of any Protected Information, owned, used, maintained or controlled by Seller, including any  such unauthorized access, acquisition, use or disclosure of Protected Information that would constitute a  breach for which notification to individuals or Governmental Entities is required under any applicable  Information Privacy and Security Laws or Contracts to which Seller is a party. Seller has not and, to the  Knowledge of Seller, none of Seller’s vendors, suppliers and subcontractors, or Seller, have (i) suffered any  breach that has resulted in any unauthorized access to, use of, disclosure of or other loss of any Protected  Information, (ii) materially breached any Contracts with Seller relating to Protected Information or (iii)  materially violated any Information Privacy and Security Laws.  (c) Seller has implemented and maintained a written information security program  reasonably designed to (i) identify and address internal and external risks to the security of any proprietary  or confidential information in its possession, including Protected Information, (ii) implement  administrative, technical and physical safeguards to control such risks and (iii) maintain notification  procedures in compliance with applicable Information Privacy and Security Laws in the case of any  applicable breach of security compromising data containing Protected Information. Seller has made  available to Purchaser true and complete copies of all currently effective privacy policies under which Seller  collects, uses or stores any Protected Information.  (d) No Person has (i) provided a written notice or audit request to Seller, (ii) made any  written claim against Seller or (iii) commenced any Action against Seller or, to the Knowledge of the Seller,  any party acting on behalf of Seller, in each case, with respect to (A) any alleged violation of Information  Privacy and Security Laws by Seller or any authorized third party acting on Seller’s behalf or (B) Seller’s  privacy or data security practices, including any loss, damage or unauthorized access, acquisition, use,  disclosure, modification or other misuse of any Protected Information maintained by or on behalf of Seller.  No Person has provided a complaint (written or otherwise) to Seller, nor, to the Knowledge of Seller, to  any third party, regarding the improper disclosure of Protected Health Information (as defined in HIPAA)  by Seller. The execution, delivery, and performance of this Agreement will not cause, constitute, or result  in a breach or violation of any contractual obligation of Seller relating to Protected Information.  





 






  21  (e) In connection with its collection, storage, transfer (including transfer across  national borders) or use of any Protected Information, Seller is and has been in compliance in all material  respects with all Information Privacy and Security Laws in relevant jurisdictions. Seller has commercially  reasonable physical, technical, organizational and administrative security measures in place to protect all  Protected Information collected by it or on its behalf from and against unauthorized access, use or disclosure  in accordance with applicable Information Privacy and Security Law. Seller is and has been in compliance  in all material respects with all Information Privacy and Security Laws relating to data loss, theft and breach  of security notification obligations. All Protected Information included in the Acquired Assets is freely  transferrable in accordance with Seller’s existing privacy policies and applicable Law, and no impediments  to the sale, transfer, conveyance and assignment to Purchaser (or a Purchaser designee) at Closing exist.  (f) Seller has maintained a cyber insurance policy that is adequate and suitable for the  nature and volume of Protected Information processed by or on behalf of Seller in the conduct of the  Business and is sufficient for compliance with all applicable Information Privacy and Security Laws and  Contracts to which the Seller is a party or by which it is bound. Section 3.11(f) of the Seller Disclosure  Schedules sets forth a complete and accurate list of all pending claims and the claims history for Seller  under such cyber insurance policy. Seller has delivered or made available to Purchaser a true, complete,  and correct copy of such cyber insurance policy.  Section 3.12. Real Property Leases.  (a) Seller does not own any real property.  (b) Section 3.12(b) of the Seller Disclosure Schedule sets forth a complete and correct  list, as of the date hereof, of each Contract pursuant to which Seller leases, subleases or occupies any real  property (the “Leases”). Complete and correct copies of the Leases have been made available to Purchaser  prior to the date hereof. Seller has not subleased, licensed or otherwise granted any Person the right to use  or occupy any real property subject to a Lease or any material portion thereof. Each Lease is valid, binding  and in full force and effect, and no uncured default of a material nature on the part of Seller or, to the  Knowledge of Seller, the landlord thereunder exists with respect to any Lease. Seller has good and valid  leasehold interest in or contractual right to use or occupy, subject to the terms of the applicable Lease, each  real property subject to the Leases.  Section 3.13. Material Contracts.  (a) Section 3.13(a) of the Seller Disclosure Schedule contains a true, accurate and  complete list (organized and labeled in a manner consistent with the categories set forth below) of each  Contract (other than any Benefit Plan) described below in this Section 3.13(a) under which any of the  Acquired Assets are bound or affected, or that are otherwise Primarily Related to the Product or the Business  to which Seller is a party or has rights or by which it is bound in connection with the Business, Product or  the Acquired Assets (all Contracts of the type described in this Section 3.13 being referred to herein as the  “Material Contracts”):  (i) each Contract that limits the freedom of Seller or any of its Affiliates to  compete or engage in any line of business or geographic region or with any Person, sell, supply or  distribute any product or service or that otherwise has the effect of restricting Seller or any of its  Affiliates from the development, marketing or distribution of products and services, in each case, in any  geographic area;  





 






  22  (ii) any Contract that creates or purports to create any partnership, joint  venture, collaboration, strategic alliance, limited liability company agreement, sharing of profits or  losses by Seller with any third party, or any similar Contract;  (iii) (A) any Contract that relates to the acquisition, disposition or divestiture  by Seller of any operating business or assets, or (B) any Contract that contains “earnout” or other  contingent payment obligations that would reasonably be expected to result in the receipt or making by  Seller of any future payments;  (iv) each IP Contract (other than Ordinary Course Licenses);  (v) any Contract (A) with a third party that imposes operational restrictions  on the Business or with respect to the Product (or Exploitation thereof) or (B) with a Governmental  Entity;  (vi) each Contract not otherwise described in any other subsection of this  Section 3.13(a) pursuant to which Seller is obligated to pay, or entitled to receive, payments in excess  of $75,000 in the twelve (12)-month period following the date hereof;  (vii) any Contract that obligates Seller to make any capital investment or capital  expenditure outside the Ordinary Course of Business and in excess of $75,000;  (viii) each Contract with any Material Supplier or that is otherwise material to  Seller, the conduct of the Business, the Product or the Exploitation thereof;  (ix) (A) each Contract that grants any option, right of first refusal, right of first  offer or similar rights to any customer, vendor, supplier, distributor, contractor, collaborator or other  Person, or (B) any Contract that otherwise limits the ability of Seller or any of its Affiliates to own,  operate, sell, transfer, pledge or otherwise dispose of any material, or material amount of, businesses or  assets;  (x) any Contract (A) containing covenants restricting or purporting to restrict  competition which, in either case, have, would have or purport to have the effect of prohibiting Seller  from engaging in any business or activity in any geographic area or other jurisdiction; (B) in which  Seller has granted “exclusivity” or that requires Seller to deal exclusively with, or grant exclusive rights  or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person; (C)  containing a “most-favored-nation,” best pricing or other similar term or provision by which another  party to such Contract or any other Person is, or may become, entitled to any benefit, right or privilege  which, under the terms of such Contract, must be at least as favorable to such party as those offered to  another Person; or (D) containing any “non-solicitation” or “no-hire” provisions or covenants running  in favor of another Person operating in the industry in which Seller or any of its Affiliates operates;  (xi) any Contract for the purchase or sale of goods or services, materials,  supplies or equipment that involved or is reasonably expected to involve the payment of more than  $75,000;   (xii) each Lease;  (xiii) any Contract that if terminated, or if it expired without being renewed,  would have a Material Adverse Effect;  





 






  23  (xiv) each Contract relating to outstanding Indebtedness (or commitments in  respect thereof) of Seller (whether incurred, assumed, guaranteed or secured by any asset) in an amount  in excess of $75,000;  (xv) any Contract that relates to the research, development (including pre- clinical and clinical research and clinical trials), commercialization, distribution, marketing, supply or  manufacturing of the Product, including any manufacturing or supply agreements (and associated  quality agreements), sponsored research agreements, collaboration agreements, grant agreements,  pharmacovigilance agreements, clinical study and clinical trial agreements, medical information  agreements, any agreements with a contract research organization or other provider of clinical trial or  related services (excluding non-disclosure agreements with any such contract research organization or  other provider of clinical trial or related services), or any other agreement related to research, studies  and tests conducted by or on behalf of Seller in connection with the Product or Business;   (xvi) any power of attorney; and  (xvii) any Contract under which any of the Acquired Assets are bound or  affected, or that are otherwise Primarily Related to the Business, Product, Acquired Assets or Assumed  Liabilities not otherwise described in any other subsection of this Section 3.13(a) that would constitute  a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with  respect to Seller.  (b) True, accurate and complete copies of each Material Contract and each Assigned  Contract in effect as of the date hereof, including all material amendments, modifications and waivers  relating thereto, have been made available to Purchaser prior to the date hereof. Seller is not in breach of or  default under the terms of any Material Contract or any Assigned Contract. To the Knowledge of Seller, no  other party to any Material Contract or Assigned Contract is in breach of or default under the terms of any  such Contract and no event exists which upon notice or the passage of time, or both, would reasonably be  expected to (i) give rise to any material default, in the performance by Seller, or, to the Knowledge of the  Seller, by any other party under any of the Material Contracts or (ii) cause or permit the acceleration or  other changes of any right or obligation or the loss of any benefit thereunder. Each of the Material Contracts  and the Assigned Contracts is a legal, valid, binding and enforceable obligation of Seller and, to the  Knowledge of Seller, of each other party thereto, and is in full force and effect. Seller has not given any  notice to any such Third Party that is a party to any Material Contract that it intends to terminate such  Material Contract and has not received any notice from a third party stating that such third party intends to  terminate any Material Contract or intends to submit to Seller any claim of breach with respect to the  performance of Seller’s obligations under any such Material Contract.  (c) Section 3.13(c) of the Seller Disclosure Schedule sets forth a true and complete list  of each Material Contract and each other Assigned Contract, if any, for which consent is required to assign  such Contract to Purchaser (or one or more of its designated Affiliates)  (d) Section 3.13(d) of the Seller Disclosure Schedule sets forth a true and complete  list of each Material Contract and each other Assigned Contract, if any, that is set to expire or terminate  prior to Closing, or within six (6) months following Closing, and which would not automatically renew.   Section 3.14. Compliance with Laws; Permits.  (a) Seller is and has been in compliance in all material respects with and is not and has  not been in default under or in violation of any Laws (including Environmental Laws), in each case, as  applicable to the Acquired Assets, the Assumed Liabilities or the Business.  





 






  24  (b) Seller, with respect to operation of the Business and the ownership and use of the  Acquired Assets, is and has been in possession of all Permits necessary for Seller to own, lease and use its  their properties and assets or to carry on its businesses at the relevant time. All Permits are in full force and  effect; no default (with or without notice, lapse of time or both) has occurred under any such Permit; and  Seller has not received any written notice from any Governmental Entity threatening to suspend, revoke,  withdraw or modify any such Permit.  (c) Neither Seller nor, to the Knowledge of Seller, any other Person (including any of  Seller’s Representatives) acting on behalf of Seller, has (i) taken any action in violation of any applicable  Anti-Corruption Law, (ii) offered, authorized, provided or given any payment or thing of value to any  Person for the purpose of influencing any act or decision of such Person to unlawfully obtain or retain  business or other advantage or (iii) taken any other action that would constitute an offer to pay, a promise  to pay or a payment of money or anything else of value, or an authorization of such offer, promise or  payment, directly or indirectly, to any Representative of another company or entity in the course of their  business dealings with Seller, in order to unlawfully induce such Person to act against the interest of his or  her employer or principal.  (d) Seller is not and has not been, in any way relating to the Business, the Acquired  Assets or the Assumed Liabilities, subject to any actual, pending, or, to the Knowledge of Seller, threatened  civil, criminal, or administrative actions, suits, demands, claims, hearings, notices of violation,  investigations, proceedings, demand letters, settlements, or enforcement actions, or made any voluntary or  mandatory disclosures to any Governmental Entity, involving Seller in any way relating to applicable Anti- Corruption Laws. Seller has established and maintains a compliance program and reasonable internal  controls and procedures appropriate to the requirements of applicable Anti-Corruption Laws.  (e) Seller is conducting and has conducted, in any way relating to the Business, the  Acquired Assets or the Assumed Liabilities, its businesses in all material respects in accordance with United  States economic sanctions Laws administered by the Office of Foreign Assets Control of the U.S.  Department of the Treasury (“OFAC”), the Bureau of Industry and Security of the U.S. Department of  Commerce (“BIS”) and all other applicable Import Restrictions and Export Controls in any countries in  which Seller conducts business. Seller is maintaining and has maintained all records required to be  maintained in Seller’s possession as required under the Import Restrictions and Export Controls.  (f) Seller has not, in any way relating to the Business, the Acquired Assets or the  Assumed Liabilities, sold, exported, reexported, transferred, diverted, or otherwise disposed of any  products, or technology to any destination, entity, or Person prohibited by the Laws of the United States or  any other country, without obtaining prior authorization from the competent Governmental Entities as  required by those Laws. Seller has, in any way relating to the Business, the Acquired Assets or the Assumed  Liabilities, complied in all material respects with all terms and conditions of any license issued or approved  by the Directorate of Defense Trade Controls, BIS, or OFAC. Except pursuant to valid licenses, Seller has  not released or disclosed controlled technical data or technology to any foreign national whether in the  United States or abroad.  (g) Neither Seller nor, to the Knowledge of Seller, any director, officer, agent,  employee or Affiliate of Seller: (x) is, or is owned or controlled by, a Person or entity subject to the sanctions  administered by OFAC, BIS or included on the List of Specially Designated Nationals and Blocked Persons  or Foreign Sanctions Evaders, Denied Persons List, Entities List, Debarred Parties List, Excluded Parties  List and Terrorism Exclusion List, or any other lists of known or suspected terrorists, terrorist organizations  or other prohibited Persons made publicly available or provided to Seller by any Governmental Entity (such  Persons, collectively, the “Restricted Parties”) or (y) has conducted any business with or engaged in any  transaction or arrangement with or involving, directly or indirectly, any Restricted Parties or countries  





 






  25  subject to economic or trade sanctions in violation of applicable Law, or has otherwise been in violation of  any such sanctions, restrictions or any similar Law. Seller is not subject to any pending or, to the Knowledge  of Seller, threatened action by any Governmental Entity that would restrict its ability to engage in export  transactions, bar it from exporting or otherwise limit in any material respect its exporting activities or sales  to any Governmental Entity. Seller has not received any written notice of material deficiencies in  connection with any export controls, trade embargoes or economic sanctions matter from OFAC, BIS or  any other Governmental Entity in its compliance efforts nor made any voluntary disclosures to OFAC, BIS  or any other Governmental Entity of facts that could result in any material action being taken or any material  penalty being imposed by a Governmental Entity against Seller.  (h) Subject to the entry of the Bidding Procedures Order and Sale Order, Seller is  complying and has complied in all material respects with all requirements of the Bankruptcy Code and the  Federal Rules of Bankruptcy Procedure in connection with obtaining approval of the sale of the Acquired  Assets (including the assumption and assignment to Purchaser of any Assigned Contracts) to Purchaser  pursuant to this Agreement.  Section 3.15. Employee Benefit Matters.  (a) Section 3.15(a) of the Seller Disclosure Schedule sets forth a complete and correct  list of each Benefit Plan (other than at-will employment offer letters on Seller’s standard form that may be  terminated without notice and with no penalty to Seller, agreements with consultants entered into in the  Ordinary Course of Business, and individual compensatory equity award agreements made pursuant to  Seller’s standard forms, in which case only representative standard forms of such agreements shall be  scheduled) as of the date hereof. Seller has delivered or made available to Purchaser copies of documents  embodying each of the Benefit Plans including all plan documents current summary plan descriptions,  summaries of material modification, and any trust agreements, funding arrangements, insurance contracts  or policies and any other similar document governing the operation and administration of said Benefit Plan.  In the case of any unwritten Benefit Plan, Seller has made available to Purchaser a written description  thereof, including any amendments thereto. Each Benefit Plan that is intended to be qualified under Section  401(a) of the Code is so qualified and each corresponding trust of such tax-qualified Benefit Plan is exempt  from Tax under the provisions of Section 501(a) of the Code. Each Benefit Plan qualified under Section  401(a) of the Code has received an Internal Revenue Service determination or opinion letter issued with  respect to each such Benefit Plan and, to the Knowledge of Seller, nothing has occurred since the issuance  of each such determination or opinion letter that could be expected to cause the loss of the tax-qualified  status of such Benefit Plan. Seller has provided or made available a copy of the most recent IRS  determination or opinion letter and have also provided or made available to Purchaser the three (3) most  recent annual reports required to be filed, or such similar reports, statements, information returns or material  correspondence required to be filed with or delivered to any Governmental Authority, if any, with respect  to each Benefit Plan (including reports filed on Form 5500 and accompanying schedules and attachments,  as applicable).  (b) (i) Each Benefit Plan has been administered in all material respects in accordance  with its terms and in compliance in all material respects with applicable Law; (ii) none of the Benefit Plans  promises or provides retiree medical or other retiree welfare benefits to any person except as required by  applicable Law; (iii) all contributions, premiums, or payments required to be made by Seller or any ERISA  Affiliate of Seller to any Benefit Plan or corresponding trust or other funding arrangement have been paid  when due under the terms of such Benefit Plan and applicable Law; (iv) there have been no prohibited  transactions or breaches of any of the duties imposed on “fiduciaries” (within the meaning of Section 3(21)  of ERISA) by ERISA with respect to the Benefit Plans and (v) no Action (other than routine claims for  benefits) is currently pending or, to the Knowledge of Seller, is currently threatened, against or with respect  





 






  26  to any Benefit Plan, including any audit, investigation, or inquiry by the Internal Revenue Service, the  United States Department of Labor, or other Governmental Entity.  (c) Neither Seller, nor any ERISA Affiliate of Seller, maintains, sponsors, participates  in, or contributes to, or has any obligation to contribute to, or has, within the last six (6) years, maintained,  sponsored, participated in, contributed to, or been obligated to contribute to, or otherwise incurred any  Liability (including any contingent Liability) under any (i) “multiemployer plan” (as defined in Section  3(37) of ERISA or Section 414(f) of the Code); (ii) any defined benefit plan or other “pension plan” (as  defined in Section 3(2) of ERISA) subject to Title IV of ERISA or Section 412 of the Code; (iii) “multiple  employer plan” (as defined in Section 210(a) of ERISA or Section 413(c) of the Code); (iv) a “multiple  employer welfare arrangement” or “MEWA” (as defined in Section 3(40) of ERISA); or (v) a “voluntary  employees’ beneficiary association” or “VEBA” pursuant to Section 501(c)(9) of the Code. Neither Seller,  nor any ERISA Affiliate of any Seller, has any actual or potential withdrawal Liability for any complete or  partial withdrawal (as defined in Sections 4203 and 4205 of ERISA) from any multiemployer plan or has  engaged in any transaction which could give rise to Liability of Seller or any ERISA Affiliate of Seller  under Section 4069 or Section 4212 of ERISA.  (d) All Benefit Plans subject to Section 409A of the Code comply in all material  respects in both form and operation with Section 409A of the Code and the rules and regulations thereunder.  No Benefit Plan includes any obligation to compensate any Person for excise Taxes payable pursuant to  Section 4999 of the Code or Section 409A of the Code.  (e) The consummation of the Acquisition, whether alone or in combination with any  other event, will not (i) entitle any current or former employee of Seller or any ERISA Affiliate to severance  benefits or any other payment (including golden parachute, bonus or benefits) under any Benefit Plan; (ii)  accelerate the time of payment or vesting of any such benefits or increase the amount of compensation due  any such current or former employee under any Benefit Plan; or (iii) result in any “excess parachute  payments” within the meaning of Section 280G(b) of the Code.  (f) Seller and all ERISA Affiliates of Seller as well as all applicable Benefit Plans  have at all times complied in all material respects with all provisions of the Patient Protection and  Affordable Care Act, to the extent applicable, including the employer shared responsibility provisions  relating to the offer of “affordable” health coverage that provides “minimum essential coverage” to “full- time” employees (as those terms are defined in Section 4980H of the Code and related regulations), and the  payment of the applicable penalty, and the applicable employer information reporting provisions under  Section 6055 of the Code and Section 6056 of the Code and related regulations. Neither Seller, nor any  ERISA Affiliates of Seller, is reasonably expected to incur or be subject to, any material Tax, penalty or  other Liability that may be imposed under the Patient Protection and Affordable Care Act and the Health  Care and Education Reconciliation Act of 2010, as amended.  (g) No Benefit Plan is maintained outside of the United States.  Section 3.16. Labor Matters.  (a) Section 3.16(a) of the Seller Disclosure Schedule sets forth a complete and correct  list of each employee who has been involved in the Business (each, a “Business Employee”), including the  following information for each Business Employee: name, date of hire, position, full/part-time status,  exempt/non-exempt status, leave status (if applicable), respective salaries and other compensation and wage  rates, bonus arrangements, benefits and retirement arrangements and whether Seller has any individual  written employment agreement with such Business Employee (other than at-will employment offer letters  on Seller’s standard form that may be terminated without notice and with no penalty to the Seller). Seller  





 






  27  has not made any representations regarding equity incentive compensation from Purchaser to any Business  Employee.  (b) Seller is not a party to, nor bound by, any agreement with respect to employees  with any labor union or any other employee organization, group or association organized for purposes of  collective bargaining. There are and have been no labor union organizing activities with respect to any  employees of Seller. There is no pending or, to the Knowledge of Seller, threatened labor strike, slowdown,  lockout or work stoppage involving Seller or any of its employees.  (c) Seller is and, during the preceding one hundred eighty (180) days, has been, in  compliance in all material respects with the Worker Adjustment and Retraining Notification Act of 1988,  as amended, and any similar state, local or foreign Law relating to plant closings or mass layoffs.  Section 3.17. Environmental Matters. Seller is, and has been since January 1, 2019, in  compliance in all material respects with all applicable Environmental Laws imposing obligations on or  otherwise related to the Business, Product, Assumed Liabilities and Acquired Assets. Seller possesses all  material permits and approvals issued pursuant to any applicable Law relating to the protection of the  environment or, as such relates to exposure to Hazardous Substances, to health and safety that are required  to conduct the Business, and are, and have been since January 1, 2019, in compliance in all material respects  with all such permits and approvals. No releases of Hazardous Substances have occurred at, on, from or  under any real property currently or, to the Knowledge of Seller, formerly owned or operated by Seller in  a manner that would reasonably be expected to result in a material Liability under any Environmental Laws.  Seller has not received any written claim or notice from any Governmental Entity or other Person alleging  that Seller is or may be in violation of or liable, in each case in any material respect, under, any  Environmental Law. Seller has not entered into or agreed to any consent decree or order and is not subject  to any judgment, decree or judicial order relating to compliance with Environmental Laws or the  investigation, sampling, monitoring, treatment, remediation, removal or clean-up of Hazardous Substances.  Section 3.18. Regulatory Matters.  (a) Seller has made available to Purchaser true, accurate, and complete copies of all  material Regulatory Documentation and Regulatory Authorizations from or with the FDA, the EMA and  all other applicable Regulatory Authorities filed, submitted, exchanged, or held by Seller relating to the  Product (or the Exploitation thereof) or necessary or useful to conduct the Business. All such Regulatory  Authorizations, if any, are (i) in full force and effect, (ii) validly registered and on file with applicable  Regulatory Authorities, (iii) in compliance with all material filing and maintenance requirements, and (iv)  in good standing, valid and enforceable. Seller has fulfilled and performed all of its material obligations  with respect to such Regulatory Authorizations, and no event has occurred which allows, or after notice or  lapse of time would allow, lapse, revocation, or termination thereof. Seller has submitted, filed, maintained  or furnished with the applicable Regulatory Authorities all required filings, declarations, listings,  registrations, fees, submissions, amendments, modifications, notices and responses to notices, applications  and supplemental applications, reports (including all adverse event/experience reports) and other  information (collectively, the “Health Care Submissions”) with the FDA, the EMA and all other applicable  Regulatory Authorities and all such Health Care Submissions were complete and accurate and in  compliance with applicable Health Laws when filed (or were corrected or completed in a subsequent filing).  (b) (i) Seller is in compliance in all material respects with all applicable Health Laws  that affect the Acquired Assets, the Assumed Liabilities or the Business, (ii) as of the date of this  Agreement, Seller has not received any written or oral notice or other communication from any Regulatory  Authority (A) withdrawing or placing any application or authorization applicable to the Product on “clinical  hold” or requiring the termination or suspension or investigation of any pre-clinical studies or clinical trials  





 






  28  of the Product or (B) alleging any violation of any Health Law and (iii) there are no investigations, suits,  claims, actions or proceedings pending, or to the Knowledge of Seller, threatened against Seller with respect  to the Product or alleging any violation by Seller or any third party engaged by Seller with respect to the  Product of any such Health Law.  (c) All pre-clinical studies and clinical trials conducted or being conducted with  respect to the Products by or at the direction of Seller have been and are being conducted in compliance in  all respects with the required experimental protocols, procedures and controls and in all material respects  with applicable good laboratory practice and good clinical practice standards, human subject protection and  animal welfare standards, environmental impact standards, and all applicable Health Laws and Information  Privacy and Security Laws. With respect to the Product, Seller has made available to Purchaser complete  and accurate copies of all clinical and preclinical data in the possession of Seller and all written  correspondence between Seller and the applicable Regulatory Authorities (including letters, memoranda  and emails). The descriptions of, protocols for, and data and other results of, the studies, tests, development  and trials conducted by or on behalf of Seller with respect to the Product that have been made available to  Seller are accurate and complete in all material respects. None of the results of the studies, tests,  development or trials, and no information regarding the conduct of the studies or the qualifications or  financial interests of the individuals conducting the studies, reasonably calls into question the reliability or  results of the studies, tests, development and trials conducted by or on behalf of Seller with respect to the  Product, and Seller has not received any written or oral notices or other correspondence from any  Regulatory Authority or other Governmental Entity or any institutional review board or comparable  authority requiring the termination, suspension or modification of any studies, tests, preclinical  development or clinical trials conducted by or on behalf of Seller. No clinical trial conducted by or, on  behalf of, Seller has been terminated or suspended by any Regulatory Authority and Seller has not received  any notification or other communication from any institutional review board, ethics committee or safety  monitoring committee raising any issues that may result in a clinical hold or otherwise delay, materially  restrict or otherwise limit or impair the use of any clinical studies proposed or currently conducted by, or  on behalf of, Seller, or in which Seller has participated and, to the Knowledge of Seller, no such action has  been threatened. To the Knowledge of Seller, no Additional Approval Requirements will or are expected  to be required with respect to the FDA Accelerated Approval Milestone or the FDA Full Approval  Milestone  (d) All manufacture of the Products, including any clinical supplies used in any  clinical trials, by or on behalf of Seller has been conducted in compliance in all material respects with the  applicable test methods, specifications and other requirements of current Good Manufacturing Practice and,  to the extent applicable, the Quality System (QS) regulation with respect to any and all device components  or constituents that are part of the Product or that are intended specifically for use with the Product, and  applicable Health Law. None of Seller or, to the Knowledge of Seller, any Person acting on Seller’s behalf  has, with respect to the Product, (i) been subject to a Regulatory Authority shutdown or import or export  prohibition or (ii) received any FDA Form 483, or other written Regulatory Authority notice of inspectional  observations, “warning letters,” “untitled letters” or written demand or written request to make any change  to any Product or any processes or procedures, or any similar correspondence from any Regulatory  Authority alleging or asserting non-compliance with any applicable Health Law or Regulatory  Authorization and, to the Knowledge of Seller, no Regulatory Authority is considering such action.  (e) None of Seller or, to the Knowledge of Seller, any of its officers, employees, or  agents, or any clinical investigator acting for Seller has (i) made an untrue statement of a material fact or  fraudulent statement to any Regulatory Authority or any other Governmental Entity, (ii) failed to disclose  a material fact required to be disclosed to any Regulatory Authority or any other Governmental Entity, or  (iii) committed an act, made a statement, or failed to make a statement, including with respect to any  scientific data or information, that, at the time such disclosure was made or failure to disclose occurred,  





 






  29  would reasonably be expected to provide a basis for the FDA or any other Governmental Entity to invoke  its policy respecting “Fraud, Untrue Statements of Material Facts, Bribery, and Illegal Gratuities,” set forth  in 56 Fed. Reg. 46191 (September 10, 1991), and any amendments thereto, or any similar policy or any  other statute or regulation regarding the communication or submission of false information to any  applicable Regulatory Authority or Governmental Entity. None of Seller or, to the Knowledge of Seller,  any of its officers, employees, or agents, or any clinical investigator or other Person acting by or on behalf  of Seller has committed or engaged in any fraud, falsification or forgery of any research or development  data, report, studies or publications or of any document or statement voluntarily submitted or required to  be submitted to any Regulatory Authority or any other Governmental Entity, including the Centers for  Medicare and Medicaid Services, the U.S. Department of Health and Human Services, HHS Office of  Inspector General or the Center for Medicare and Medicaid Innovation. None of Seller or, to the Knowledge  of Seller, any of its officers, employees, agents, or, any clinical investigator acting for Seller, is or has been  convicted of any crime or engaged in any conduct that has resulted in, or would reasonably be expected to  result in, debarment from participation in any program related to pharmaceutical products pursuant to 21  U.S.C. Section 335a (a) or (b) or exclusion from participation in any federal health care program pursuant  to 42 U.S.C. Section 1320a-7.  (f) No product that is or has been manufactured, tested, distributed, held or marketed  by or on behalf of Seller has been recalled, withdrawn or suspended (whether voluntarily or otherwise) or,  to the Knowledge of Seller, is or has been adulterated or misbranded. No Actions (whether complete or  pending) seeking the recall, withdrawal, suspension or seizure of any such Product or pre-market approvals  or authorizations or marketing authorizations are pending or, to the Knowledge of Seller, threatened against  Seller, nor have any such Actions been pending at any time. Seller has made available to Purchaser all  information about adverse drug events or experiences obtained or otherwise received by Seller from any  source, in the United States or outside of the United States as of the date hereof, including information  derived from clinical investigations, surveillance studies or registries, reports in the scientific literature and  unpublished scientific papers relating to any Product that is or has been manufactured, tested, distributed,  held or marketed by or on behalf of Seller or any of its licensors or licensees in the possession of Seller (or  to which Seller has access). In addition, Seller has filed all annual and periodic reports, amendments and  safety reports required for any Product, including all investigational versions of the Product, required to be  made to any Regulatory Authority.  (g) Section 3.18(g) of the Seller Disclosure Schedule sets forth a complete and  accurate list and summary of any written information received by, or in the possession of, Seller or any  Affiliate of Seller from, or submitted by Seller or any Affiliate of Seller to, any Regulatory Authority or  other Governmental Entity which could reasonably be expected to (i) lead to the denial of any application  for Regulatory Authorization currently pending before or proposed to be submitted to any Regulatory  Authority or other Governmental Entity relating to the Product or the Business, (ii) result in a penalty under  or the material limitation, material adverse modification, revocation, cancellation or suspension of any  Regulatory Authorization for the Product or (iii) give rise to any Action to determine whether any of the  foregoing is appropriate. Seller has made available to Purchaser complete and correct copies of all such  written information.  Section 3.19. Taxes.  (a) (i) All income and other material Tax Returns required to be filed with respect to  the Business, the Acquired Assets and Assumed Liabilities have been timely filed with the appropriate  Taxing Authority in all jurisdictions in which such Tax Returns are required to be filed (after giving effect  to any valid extensions of time in which to make such filings), and all such Tax Returns are true, complete  and correct in all material respects; and (ii) all amounts of Taxes payable with respect to the Business, the  Acquired Assets and Assumed Liabilities, whether or not shown on any Tax Return, have been timely paid.  





 






  30  (b) No audit or other proceeding with respect to any Taxes or Tax Returns with respect  to the Business, the Acquired Assets or Assumed Liabilities is currently in progress, or has been proposed  or threatened in writing, or, to the Knowledge of Seller, otherwise.  (c) Seller has not received written notice, or, to the Knowledge of Seller, any other  notice, of any Tax deficiency outstanding, proposed or assessed, nor has Seller executed any waiver of any  statute of limitations in respect of Taxes nor agreed to any extension of time with respect to a Tax  assessment, collection or deficiency, in each case, with respect to the Business, the Acquired Assets or  Assumed Liabilities.  (d) There are no liens for Taxes other than Permitted Pre-Closing Encumbrances upon  any of the Acquired Assets.  (e) None of the Acquired Assets constitutes stock, partnership interests or any other  equity interest in any Person for U.S. federal income Tax purposes.  (f) Seller has complied in all material respects with all applicable Laws relating to the  withholding, collection and payment of Taxes and have timely withheld, collected and paid over to the  appropriate Taxing Authority all amounts required to be so withheld, collected and paid under all applicable  Laws.  Section 3.20. Suppliers. Section 3.20 of the Seller Disclosure Schedule sets forth with respect to  the Business a list of the suppliers and vendors of Seller with whom Seller has spent at least $75,000 during  the fiscal year ended December 31, 2021 and for the nine (9) months ended September 30, 2022 (each, a  “Material Supplier”). No Material Supplier has cancelled, terminated or adversely modified, or, to the  Knowledge of Seller, threatened to cancel, terminate or adversely modify, its relationship with Seller.  Section 3.21. Inventory.   (a) Section 3.21(a) of the Seller Disclosure Schedule sets forth a detailed list of all  Inventory as of the date of this Agreement, including the quantity, batch, expiry dating, book value,  location (including whether the item is being held on a consignment basis), original shelf-life and  remaining shelf-life. The Inventory is merchantable, fit for the purposes for which it was procured or  manufactured, usable or saleable in the Business and free of defects and damage, conforms in all material  respects to the specifications established therefor and to the Regulatory Authorizations, and has been  manufactured in all material respects in accordance with the Regulatory Authorizations and all  applicable Laws. Subject to Purchaser (or one or more of its designated Affiliates) storing the Inventory  in a manner consistent in all material respects with Seller’s current methods of storage, at all times prior  to the two-year anniversary of the Closing Date the Inventory will conform in all material respects to  the specifications established therefor and to the applicable Regulatory Authorizations.   (b) The Inventory constitutes sufficient quantities for the normal operation of the  Business for at least the eighteen (18) months following the Closing Date and does not include any items  that are expired or obsolete.   (c) Except for the Inventory so identified in Section 3.21(a) of the Seller Disclosure  Schedule, none of the Inventory is held on a consignment basis. Each item included in the Inventory is  owned by Seller, free and clear of any Encumbrances other than Permitted Post-Closing Encumbrances  and has not been pledged as collateral.   





 






  31  Section 3.22. Insurance. Section 3.22 of the Seller Disclosure Schedule sets forth with respect to  the Business a complete and accurate list of the insurance policies and insurance Contracts of Seller as of  the date hereof, and Seller has made available to Purchaser true and correct copies of all of such policies  and Contracts prior to the date hereof. Except as would not, individually or in the aggregate, reasonably be  expected to be material to Seller, the Acquired Assets or the Business, (a) all insurance policies and  insurance Contracts set forth on Section 3.22 of the Seller Disclosure Schedule are in full force and effect  and are valid and enforceable and cover against the risks as are customary for companies of similar size in  the same lines of business, (b) Seller is not in material breach of or default under any such insurance policies  and insurance Contracts, (c) Seller has not taken any action or failed to take any action that (with or without  notice or lapse of time, or both), would constitute such a breach or default or permit termination or  modification of any of the insurance policies or insurance Contracts, and (d) all premiums due thereunder  have been paid. There are no material claims under any of the insurance policies or insurance Contracts set  forth on Section 3.22 of the Seller Disclosure Schedule for which coverage has been denied or disputed by  the applicable insurance carrier (other than a customary reservation of rights notice). Seller has not received  notice of cancellation or termination with respect to any third-party insurance policies or insurance  Contracts set forth on Section 3.22 of the Seller Disclosure Schedule (other than in connection with normal  renewals of any such insurance policies or Contracts).  Section 3.23. CFIUS. Seller does not engage in (a) the design, fabrication, development, testing,  production or manufacture of one or more “critical technologies” within the meaning of the Defense  Production Act of 1950, as amended, including all implementing regulations thereof (the “DPA”); (b) the  ownership, operation, maintenance, supply, manufacture, or servicing of “covered investment critical  infrastructure” within the meaning of the DPA (where such activities are covered by column 2 of Appendix  A to 31 C.F.R. Part 800); or (c) the maintenance or collection, directly or indirectly, of “sensitive personal  data” of U.S. citizens within the meaning of the DPA, and the Acquired Assets do not include and will not  provide Purchaser with access to any such “critical technologies,” “covered investment critical  infrastructure” or “sensitive personal data.”  Section 3.24. Disclaimer. Seller hereby acknowledges and agrees that, except as provided in this  Agreement and in any certificate or other instrument delivered by or on behalf of Purchaser in connection  with this Agreement, Purchaser makes no representations or warranties whatsoever, express or implied,  with respect to Purchaser, its Affiliates, this Agreement, the Transactions or the manner in which Purchaser  intends to operate the Business or Exploit the Product following the Closing. Seller further acknowledges  that Seller has conducted an independent inspection and investigation of Purchaser and all such other  matters relating to or affecting the Transactions as Seller deemed necessary or appropriate and that in  proceeding with its sale of the Acquired Assets, except for the representations and warranties set forth in  ARTICLE IV or in any certificate or other instrument delivered by or on behalf of Purchaser in connection  with this Agreement, Seller has not relied on any other representations or warranties by or on behalf of  Purchaser in connection with the Transactions. Notwithstanding anything herein to the contrary, the  foregoing limitations shall not apply to, and nothing herein shall limit, Seller’s remedies in the event of  Fraud or Seller’s rights and remedies under any Ancillary Document.  ARTICLE IV  REPRESENTATIONS AND WARRANTIES OF PURCHASER  Purchaser hereby represents and warrants to Seller, as of the date hereof and as of the Closing, as  follows:  Section 4.1. Qualification; Organization. Purchaser is a legal entity duly organized, validly  existing and in good standing (with respect to jurisdictions that recognize such concept) under the Laws of  its jurisdiction of organization and has all requisite corporate or similar power and authority to own, lease  





 






  32  and operate its properties and assets and to carry on its business as presently conducted, except where the  failure to be so existing and in good standing or to have such power and authority would not, individually  or in the aggregate, materially impair or materially delay its ability to perform its obligations under this  Agreement. Purchaser is qualified to do business and is in good standing (with respect to jurisdictions that  recognize such concept) as a foreign corporation or other entity in each jurisdiction where the ownership,  leasing or operation of its assets or properties or conduct of its business requires such qualification, except  where the failure to be so qualified or, where relevant, in good standing, would not, individually or in the  aggregate, materially impair or materially delay its ability to perform its obligations under this Agreement.   Section 4.2. Authority of Purchaser. Purchaser has all requisite corporate power and authority  to execute and deliver and perform its obligations under this Agreement and each of the Ancillary  Documents to which it is a party (subject to entry of the Bidding Procedures Order and Sale Order). The  execution, delivery and performance of this Agreement and such Ancillary Documents by Purchaser and  the consummation of the Transactions have been duly and validly authorized and approved by all requisite  corporate action of Purchaser, as applicable, and no other corporate proceedings (pursuant to any of  Purchaser’s organizational documents or otherwise) on the part of Purchaser is necessary to authorize the  consummation of, and to consummate the Transactions. This Agreement and each such Ancillary Document  have been, or at or prior to Closing (as the case may be) will be, duly and validly executed and delivered  by Purchaser to the extent a party thereto, and, assuming the due authorization, execution and delivery of  this Agreement and each such Ancillary Document by Seller, constitute a valid and binding agreement of  Purchaser, as applicable, enforceable against Purchaser in accordance with its terms.  Section 4.3. Consents and Approvals. No consent, approval, permit or authorization of, or  declaration, filing or registration with, any Governmental Entity is necessary or required to be made or  obtained by Purchaser or their Affiliates in connection with the execution, delivery and performance of this  Agreement and the Ancillary Documents and the consummation of the Transactions, except for such  consents, approvals, permits, authorizations, declarations, filings or registrations that would not,  individually or in the aggregate, materially impair or materially delay Purchaser’s ability to perform its  obligations under this Agreement.  Section 4.4. No Violations. Except as described in Section 3.3 and Section 4.3, neither the  execution, delivery or performance of this Agreement and the Ancillary Documents by Purchaser to the  extent a party thereto nor the consummation by Purchaser of the Transactions will (a) conflict with or result  in any violation or breach of any provisions of the certificate of incorporation, bylaws or other  organizational documents of Purchaser, (b) with or without notice or lapse of time or both, conflict with or  result in any breach or violation of or constitute a default or change of control under, or give rise to a right  of, or result in, termination, modification, cancellation, first offer, first refusal or acceleration of any  obligation or to the loss of a benefit under any Contract to which Purchaser is a party or by or to which any  of its properties, rights or assets are bound or subject or (c) conflict with or violate any Order or Law  applicable to Purchaser or its properties, rights or assets, except in the case of the preceding clauses (b) and  (c), for breaches, violations, defaults or terminations that would not reasonably be expected to, individually  or in the aggregate, materially impair or materially delay Purchaser’s ability to perform its obligations under  this Agreement.  Section 4.5. Brokers or Finders. Purchaser has not employed any investment banker, broker or  finder in connection with the Transactions who might be entitled to any fee or any commission from Seller  in connection with this Agreement or upon consummation of the Acquisition or any of the other  Transactions based upon arrangements made by Purchaser.  





 






  33  Section 4.6. Financing. Purchaser has, or will at the time any payment is required, sufficient  funds available to deliver the Purchase Price to Seller and consummate the Transactions, including the  timely satisfaction of the Assumed Liabilities.  Section 4.7. Adequate Assurances Regarding Assigned Contracts. As of the Closing, Purchaser  will be capable of satisfying the adequate assurance of future performance conditions contained in Sections  365(b)(1)(C) and 365(f) of the Bankruptcy Code with respect to the Assigned Contracts.  Section 4.8. Disclaimer. Purchaser hereby acknowledges and agrees that, except as provided in  ARTICLE III or in any certificate or other instrument delivered by or on behalf of Seller in connection with  this Agreement, Seller makes no representations or warranties whatsoever, express or implied, with respect  to any matter relating to the Acquired Assets, Business, Product and Assumed Liabilities with respect to  the Acquired Assets, Business, Product and Assumed Liabilities. Purchaser further acknowledges that  Purchaser has conducted an independent inspection and investigation of the physical condition of the  Acquired Assets and all such other matters relating to or affecting the Acquired Assets as Purchaser deemed  necessary or appropriate and that in proceeding with the Acquisition, except for the representations and  warranties set forth in ARTICLE III or in any certificate or other instrument delivered by or on behalf of  Seller in connection with this Agreement, Purchaser has not relied on any other representations or  warranties by or on behalf of Seller in connection with the Transactions. Notwithstanding anything herein  to the contrary, the foregoing limitations shall not apply to, and nothing herein shall limit, Purchaser’s  remedies in the event of Fraud or Purchaser’s rights and remedies under any Ancillary Document.  ARTICLE V  COVENANTS  Section 5.1. Conduct of Business Pending the Closing.  (a) Seller agrees that between the date hereof and the earlier of the Closing or the date,  if any, on which this Agreement is validly terminated pursuant to ARTICLE VIII, except as set forth in  Schedule 5.1(a), and except (1) as expressly provided in this Agreement, (2) as consented to in writing by  Purchaser, and (3) for the consequences arising from the filing of the Chapter 11 Case, Seller shall use  commercially reasonable efforts to conduct the Business in all material respects in the Ordinary Course of  Business, and use commercially reasonable efforts to (i) maintain and preserve intact its present business  organization, the Acquired Assets and the Business, (ii) maintain, preserve, and keep available the services  of its present officers and Business Employees (other than where such employee voluntarily resigns or  where termination of such services is for cause), (iii) maintain and preserve in all material respects its  present relationships with customers, suppliers, vendors, service providers, licensors, licensees,  Governmental Entities, and other Persons with whom they have material business relations, in each case,  in connection with the operation of the Business, (iv) maintain and preserve in effect in all material respects  the Permits, (v) preserve and maintain all Regulatory Authorizations, (vi) perform in all material respects  all of its post-petition obligations under the Assigned Contracts as and when such obligations become due  (except as Seller may negotiate for and receive applicable extended payment arrangements), and (vii)  comply in all material respects with the budget and other obligations set forth in the DIP Facility (except  as Seller may negotiate for and receive payment extensions under or other modifications thereto).   (b) Seller agrees that between the date hereof and the earlier of the Closing or the date,  if any, on which this Agreement is validly terminated pursuant to ARTICLE VIII, except as set forth in  Schedule 5.1(b), and except (1) as expressly provided in this Agreement, (2) as consented to in writing  by Purchaser or (3) for the consequences arising from the filing of the Chapter 11 Case, Seller shall not,  with respect to the Business, the Acquired Assets or the Assumed Liabilities, directly or indirectly:  





 






  34  (i) acquire (including by merger, consolidation or acquisition of stock or  assets or any other means) or authorize or announce an intention to so acquire, or enter into any  agreements providing for any acquisitions of, any equity interests in or assets of any Person or any  business or division thereof, or otherwise engage in any mergers, consolidations or business  combinations, except for supplies, inventory or equipment in the Ordinary Course of Business;  (ii) make any loans, advances or capital contributions to, or investments in,  any other Person, except for advances for reimbursable employee expenses made in the Ordinary Course  of Business;  (iii) other than sales of Inventory in the Ordinary Course of Business, sell,  lease, license, assign, abandon, permit to lapse, transfer, exchange, swap or otherwise dispose of, or  subject to any Encumbrance (other than Permitted Pre-Closing Encumbrances) any of the Acquired  Assets;  (iv) fail to maintain, or allow to lapse, or abandon any Seller Registered  Intellectual Property;  (v) enter into or become bound by, terminate or materially amend or modify  any Contract relating to the acquisition or disposition or granting of any license with respect to any  Seller Intellectual Property, or otherwise subject to an Encumbrance (other than Permitted Pre-Closing  Encumbrances) any Seller Intellectual Property (including by the granting of any covenant-not-to-sue  or covenant-not-to-assert), other than immaterial license grants in the Ordinary Course of Business;  (vi) (A) enter into any Contract that would, if entered into prior to the date  hereof, be a Material Contract or (B) modify, amend, extend or terminate any Assigned Contract or  waive, release or assign any rights, obligations, or claims thereunder;  (vii) (A) except in accordance with the DIP Budget provided to Purchaser prior  to the date hereof, make any capital expenditure or expenditures, enter into agreements or arrangements  providing for capital expenditure or expenditures or otherwise commit to do so, or (B) fail to make any  capital expenditure or expenditures in accordance with such DIP Budget;  (viii) other than with respect to SFJ Pharmaceuticals X, Ltd. or its Affiliates,  commence, waive, release, assign, compromise or settle any claim, litigation, investigation or Action  (for the avoidance of doubt, including with respect to matters in which a Seller is a plaintiff, or in which  any of their officers or directors in their capacities as such are parties) affecting the Business, the  Acquired Assets or the Assumed Liabilities, other than the compromise or settlement of any claim,  litigation or Action not brought by a Governmental Entity and that: (A) is for an amount not to exceed,  for any such compromise or settlement individually or in the aggregate, $100,000, (B) does not impose  any injunctive or nonmonetary relief on Seller and does not involve the admission of wrongdoing by  Seller or any of its officers or directors or otherwise establish a materially adverse precedent for similar  settlements by Purchaser and (C) does not provide for the license of any Intellectual Property or the  termination, modification or amendment of any license of Seller Intellectual Property;  (ix) make any change in financial accounting policies, practices, principles or  procedures or any of its methods of reporting income, deductions or other material items for financial  accounting purposes, except as required by GAAP or applicable Law;  (x) make, change or revoke any Tax election, adopt or change any method of  Tax accounting, file any amended Tax Return, enter into any “closing agreement” within the meaning  





 






  35  of Section 7121 of the Code (or any similar provision of state, local or non-U.S. Law), or surrender any  right to claim a refund of Taxes, in each case, except to the extent such action would not be binding on  Purchaser or any of its Affiliates and would not reasonably be expected to increase the Taxes of  Purchaser or any of its Affiliates;  (xi) redeem, repurchase, prepay, defease, incur, assume, endorse, guarantee or  otherwise become liable for or modify in any material respects the terms of any Indebtedness or any  derivative financial instruments or arrangements (including swaps, caps, floors, futures, forward  contracts and option agreements), or issue or sell any debt securities or calls, options, warrants or other  rights to acquire any debt securities (directly, contingently or otherwise);  (xii) cancel or fail to use commercially reasonable efforts to maintain in the  Ordinary Course of Business Seller’s insurance policies included in, or covering any, Acquired Assets  or to renew or replace existing insurance policies included in, or covering any, Acquired Assets  following their termination;  (xiii) (A) enter into any lease or sublease of real property as lessee or sublessee,  or (B) materially modify or amend any Lease or other lease or sublease of real property, except for  rejection of leases immediately on locations approved by prior written consent of Purchaser, in each  case other than in the Ordinary Course of Business (it being agreed that, with respect to this subsection  (xiii), Purchaser’s consent may not be unreasonably withheld, conditioned or delayed);  (xiv) fail to use best efforts to maintain its Books and Records;  (xv) terminate or modify or waive in any material respect any right under any  Permit or otherwise fail to use best efforts to maintain all Permits used in the operation of the Business  or included in the Acquired Assets;  (xvi) file a motion, fail to timely contest a pleading seeking, or otherwise  consent to (A) a conversion of the Chapter 11 Case into a liquidation proceeding under Chapter 7 of the  Bankruptcy Code, (B) the dismissal of the Chapter 11 Case, (C) the appointment of a Chapter 11 trustee  or examiner or (D) the termination or reduction of the exclusivity period described in 11 U.S.C. §  1121(b);  (xvii) participate in any scheduled meetings or teleconferences with, or  correspond in writing, communicate or consult with the FDA or any similar Governmental Entity  without providing Purchaser (whenever feasible and to the extent permitted under applicable Law) with  prior written notice and a reasonable opportunity to consult with Seller with respect to such  correspondence, communication or consultation, in each case to the extent permitted by applicable Law;  (xviii) except as contemplated by and in accordance with this Agreement and the  Bidding Procedures, take or cause to be taken any action that would reasonably be expected to materially  delay, materially impede or prevent the consummation of the Acquisition;  (xix) make any material change in billing, inventory management or cash  management practices (including with respect to the timing and frequency of paying of payables) or in  working capital practices, or encourage any distributor or customer directly or indirectly to accelerate  purchases of the Products or modify discounting, rebate and similar practices;  (xx) voluntarily terminate, enter into or amend any Benefit Plan, except as  would not reasonably be expected to result in Liability to Purchaser;  





 






  36  (xxi) with respect to all Business Employees, except as required by any Benefit  Plan or other existing employment agreement or offer letter as in effect on the date hereof, (A) increase  any compensation or benefits of any Business Employees; or (B) grant any incentive, bonus, severance,  retention or termination pay or benefits;  (xxii) hire any Business Employees or terminate any Business Employees (other  than for cause);  (xxiii) enter into a collective bargaining agreement or other labor union Contract  with respect to any Business Employees; or  (xxiv) agree or authorize, in writing or otherwise, to take any of the foregoing  actions.  Without in any way limiting any party’s rights or obligations under this Agreement, the parties understand  and agree that (i) nothing contained in this Agreement shall give Purchaser, directly or indirectly, the right  to control or direct the operations of Seller, or the Business prior to the Closing and (ii) prior to the Closing,  Seller shall exercise, consistent with, and subject to, the terms and conditions of this Agreement, complete  control and supervision over the Business and their operations.  Section 5.2. Access and Information.  (a) From the date hereof and through the Closing Date or the date on which this  Agreement is terminated, (x) Seller shall afford Purchaser and its Representatives reasonable access during  normal business hours upon reasonable advance notice to all of Seller’s properties, offices, Assigned  Contracts, employees and Books and Records to the extent related to the Business, the Acquired Assets and  the Assumed Liabilities, (y) Seller shall afford to Purchaser and its Representatives, acting in good faith,  reasonable access upon reasonable advance written notice (and notwithstanding any other restriction in the  Confidential Disclosure Agreement) to all of Seller’s licensors, licensees, suppliers and manufacturers, and,  with the consent of Seller (not to be unreasonably withheld, conditioned or delayed), to Seller’s Regulatory  Authorities, and, (z) during such period, Seller shall furnish as promptly as practicable to Purchaser all  information (financial or otherwise) Purchaser may reasonably request, in each case, related to the Business,  the Acquired Assets or the Assumed Liabilities, for any purpose related to the Transactions. For the  avoidance of doubt, information obtained pursuant to this Section 5.2(a) shall be subject to the Confidential  Disclosure Agreement. For purposes of this Section 5.2(a), Purchaser shall, and shall use its commercially  reasonable efforts to cause its Representatives to, cooperate reasonably with Seller and its respective  Representatives, and shall use its commercially reasonable efforts to minimize any disruption to the  Business.  (b) From and after the Closing for a period of three (3) years following the Closing  Date (or, if later, the confirmation of the Chapter 11 plan) (the “Preservation Period”), Purchaser will  provide Seller and its advisors with reasonable access, during normal business hours upon reasonable  advance notice, to the books and records, including work papers, schedules, memoranda, Tax Returns, Tax  schedules, Tax rulings, and other documents (for the purpose of examining and copying) relating to the  Acquired Assets or the Assumed Liabilities with respect to periods or occurrences prior to the Closing and  reasonable access, during normal business hours and upon reasonable advance notice, to employees,  officers, advisors and accountants of Purchaser (solely for the purpose of better understanding such books  and records), in each case, for purposes relating to the Chapter 11 Case, the wind-down of the operations  of Seller and its estate, actions to which Seller is a party (other than in connection with any litigation or  dispute with Purchaser), insurance claims, Tax payments, returns or audits, the functions of any trusts  established under a Chapter 11 plan of Seller or any other successors of Seller. For purposes of this Section  





 






  37  5.2(b), references to “Seller” shall be construed, where applicable, to include any liquidating trust, plan  administrator, or comparable Person or body bearing responsibility for the administration and wind-down  of Seller’s operations, estates and Chapter 11 Case. In the event Purchaser wishes to destroy such books  and records during the Preservation Period, Purchaser shall first provide ten (10) Business Days’ prior  written notice to Seller, and Seller shall have the right, at its option and expense, to take possession of such  records within ten (10) Business Days after notice thereof.  Section 5.3. Approvals and Consents; Cooperation; Notification.  (a) Subject to the terms and conditions of this Agreement (including Section 5.14),  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, all things necessary, proper or advisable under applicable Law to consummate the Transactions  as soon as practicable after the date hereof, including (i) preparing and filing or otherwise providing, in  consultation with the other party and as promptly as practicable and advisable after the date hereof, all  documentation to effect all necessary applications, notices, petitions, filings, and other documents and to  obtain as promptly as practicable all waiting period expirations or terminations, consents, clearances,  waivers, licenses, orders, registrations, approvals, permits, and authorizations necessary or advisable to be  obtained from any third party or any Governmental Entity in order to consummate the Transactions, and  (ii) taking all steps as may be necessary, subject to the limitations in this Section 5.3, to obtain all such  waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits,  authorizations, orders and approvals from any third party or any Governmental Entity. In furtherance and  not in limitation of the foregoing, each party agrees to make all necessary filings, if any, as promptly as  practicable after the date hereof, and to supply as promptly as practicable and advisable any additional  information and documentary materials that may be requested under any Antitrust Laws. Notwithstanding  anything to the contrary in this Agreement, none of the parties shall be required to, and Seller may not,  without the prior written consent of Purchaser, become subject to, consent to or offer or agree to, or  otherwise take any action with respect to, any requirement, condition, limitation, understanding, agreement  or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets,  business or portion of business of Seller, Purchaser or any Subsidiary of any of the foregoing, (B) conduct,  restrict, operate, invest or otherwise change the assets, the business or portion of the business of Seller,  Purchaser or any Subsidiary of any of the foregoing in any manner or (C) impose any restriction,  requirement or limitation on the operation of the business or portion of the business of Seller, Purchaser or  any Subsidiary of any of the foregoing; provided that if requested by Purchaser, Seller will become subject  to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement,  condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation,  understanding, agreement or order is only binding on such entity in the event the Closing occurs.  (b) Purchaser shall have the principal responsibility for devising and implementing the  strategy with respect to obtaining any necessary antitrust or competition clearances, shall take the lead in  all meetings and communications with any Governmental Entity relating to Antitrust Laws and shall have  the right to direct all matters with any Governmental Authority relating to Antitrust Laws consistent with  its obligations hereunder. In furtherance and not in limitation of the foregoing, each of the parties shall, in  connection with and without limiting the efforts referenced in Section 5.3(a), (i) cooperate in all respects  and consult with the other party in connection with any filing or submission and in connection with any  investigation or other inquiry, including any proceeding initiated by a private party, including by allowing  the other party to have a reasonable opportunity to review in advance and comment on drafts of filings and  submissions and reasonably considering in good faith comments of the other party and providing the other  party with copies of filings and submissions, (ii) promptly inform the other party of any communication  received by such party from, or given by such party to, the Antitrust Division of the Department of Justice  (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly  providing copies to the other party of any such written communications, and of any material communication  





 






  38  received or given in connection with any proceeding by a private party, in each case regarding any of the  Transactions and (iii) permit the other party to review in advance any communication that it gives to, and  consult with each other in advance of any meeting, substantive telephone call or conference with, the DOJ,  the FTC or any other Governmental Entity, or, in connection with any proceeding by a private party, with  any other Person, and to the extent permitted by the DOJ, the FTC or other applicable Governmental Entity  or other Person, give the other party the opportunity to attend and participate in any in-person meetings,  substantive telephone calls or conferences with the DOJ, the FTC or other Governmental Entity or other  Person; provided, however, that materials required to be provided pursuant to the foregoing clauses (i)-(iii)  may be redacted (A) to remove references concerning the valuation of any of the parties or any of their  respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to  address reasonable privilege or confidentiality concerns; provided, further, that any of the parties may, as  each deems advisable and necessary, reasonably designate any competitively sensitive material provided to  the other under this Section 5.3(b) as “Outside Counsel Only Material” and materials so designated shall  only be provided to each party’s outside counsel.   (c) In connection with and without limiting the foregoing, Seller shall give any notices  to third parties required under the Assigned Contracts, and Seller shall use reasonable best efforts to obtain  third-party consents to any Assigned Contracts that are set forth on Schedule 1.1(c) or are otherwise  required in connection with the Acquisition, which consents shall not, in any event, include any consent the  need for which is obviated by the Sale Order or otherwise by the provisions of the Bankruptcy Code.  (d) Each party shall give prompt notice to the other party (i) of any notice or other  communication from any Governmental Entity in connection with this Agreement or the Acquisition, or  from any Person alleging that the consent of such Person is or may be required in connection with the  Acquisition, (ii) of any legal proceeding commenced or, to the knowledge of such party, threatened against  it or any of its Affiliates or otherwise relating to, involving or affecting such party or any of its Affiliates,  in each case in connection with, arising from or otherwise relating to the Acquisition, (iii) in the case of  Seller, of any material written correspondence to or from the FDA or any other Regulatory Authority with  respect to (A) the receipt of any FDA 483 observations or substantially equivalent notices involving any  facility of Seller or any third party engaged by Seller in the manufacture of the Product, (B) the recall,  correction, removal, market withdrawal or replacement of the Product, (C) a change in the marketing  classification or a change in the labelling of the Product, the effect of which would reasonably be expected  to be material to Seller or the conduct of the Business, (D) a non-substantial equivalence determination or  denial of market approval by any Governmental Entity of the Product, (E) the mandatory or voluntary  termination, enjoinment or suspension of the testing, manufacturing, marketing, export, import, or  distribution of the Product or (F) a non-coverage determination by the Centers for Medicare and Medicaid  Services or any other third-party payor with respect to the Product, the effect of which would reasonably  be expected to be material to Seller or the conduct of the Business, and (iv) upon becoming aware of the  occurrence or impending occurrence of any event or circumstance that would reasonably be expected to  have, individually or in the aggregate, a Material Adverse Effect or which would reasonably be expected  to prevent or materially delay or impede the consummation of the Acquisition; provided, however, that the  delivery of any notice pursuant to this Section 5.3(d) shall not cure any breach of any representation or  warranty requiring disclosure of such matter prior to the date hereof or otherwise limit or affect the remedies  available hereunder to any party.  (e) Notwithstanding the foregoing, the obligations of the parties to obtain any consent,  approval or waiver from the Bankruptcy Court shall be governed exclusively by Section 5.6, Section 5.7,  Section 5.8 and Section 5.9.  Section 5.4. Further Assurances. In addition to the provisions of this Agreement, from time to  time after the Closing Date, Seller and Purchaser shall use reasonable best efforts to execute and deliver  





 






  39  such other instruments of conveyance, transfer or assumption, as the case may be, and take such other  actions as may be reasonably requested to implement more effectively the conveyance and transfer of the  Acquired Assets to Purchaser and the assumption of the Assumed Liabilities by Purchaser and otherwise  to effect the purposes of this Agreement and the Transactions. In furtherance and not in limitation of the  foregoing if, following the Closing, Seller (x) receives or becomes aware that it holds any asset, property  or right which constitutes an Acquired Asset, then Seller shall transfer such asset, property or right to  Purchaser or, as applicable, one or more designees of Purchaser as promptly as practicable after the Closing  for no additional consideration, and pending such conveyance the parties shall reasonably cooperate with  each other to provide Purchaser with all of the benefits of use of such asset, property or right and (y) receives  any payment on accounts receivable included in the Acquired Assets, Seller shall hold such payment in  trust and promptly (and in any event within two (2) Business Days) pay the amount thereof to Purchaser.  If, following the Closing, Purchaser receives or becomes aware that it holds any asset, property or right  which constitutes an Excluded Asset, then Purchaser shall transfer such asset, property or right to Seller as  promptly as practicable for no additional consideration, and pending such conveyance the parties shall  reasonably cooperate with each other to provide Seller with all of the benefits of use of such asset, property  or right.  Section 5.5. Assets Held by Other Persons. In furtherance and not in limitation of Seller’s  obligations and Purchaser’s rights under Section 1.1, to the extent that any Person other than Seller owns,  controls, possesses or otherwise has any rights to any assets or rights that are Primarily Related to the  Product or the Business (including any material Regulatory Documentation) (collectively, “Business  Assets”), Seller shall, no later than immediately prior to the Closing, obtain the full and exclusive rights to  any Business Assets that constitute Regulatory Documentation (other than immaterial correspondence by  or to Seller and not to or from any Regulatory Authority) and shall usually commercially reasonable efforts  to obtain the full and exclusive rights to any other Business Assets, and at the Closing Seller shall (or with  respect to Business Assets other than Regulatory Documentation, use commercially reasonable efforts to)  sell, assign, transfer, convey and deliver, or cause (or with respect to Business Assets other than Regulatory  Documentation, use commercially reasonable efforts to cause) to be sold, assigned, transferred, conveyed  and delivered, the Business Assets to Purchaser free and clear of all Encumbrances of any and every kind,  nature and description, other than Permitted Post-Closing Encumbrances.  Section 5.6. The Sale Motion. Seller shall file a motion or motions with the Bankruptcy Court  within three (3) days of the execution and delivery of this Agreement, or as otherwise agreed upon by the  parties, seeking the following relief: (a) approval of the sale of the Acquired Assets; (b) approval of  Purchaser as the “stalking horse” bidder for the Acquired Assets pursuant to the terms of this Agreement;  (c) approval of the Bidding Procedures, Break-Up Fee, Expense Reimbursement Amount and bid and other  related protections (the “Sale Motion”) in form and substance acceptable to Purchaser in its sole discretion.  Seller shall use its best efforts to cause the Bankruptcy Court to enter the Bidding Procedures Order in the  form of Exhibit C, not later than November 21, 2022. Seller shall use its best efforts to obtain entry of the  Sale Order (provided Purchaser is the Successful Bidder) in form and substance acceptable to Purchaser in  its sole discretion as more fully set forth in Exhibit D within two (2) Business Days after Purchaser is  determined to be the Successful Bidder.  Section 5.7. Cooperation with Respect to Bankruptcy Court Approvals. Purchaser shall take  such actions as are reasonably requested by Seller to assist in obtaining entry by the Bankruptcy Court of  the Bidding Procedures Order and the Sale Order.  Section 5.8. Non-Solicitation of Stalking Horse Bidders. Seller shall not, and shall cause its  Representatives, Affiliates, and its Affiliates’ Representatives not to solicit, negotiate or discuss with any  Person (and Seller shall, and shall cause its Representatives, Affiliates and its Affiliates’ Representatives,  to cease immediately any such ongoing activity), or enter into any agreement or understanding with respect  





 






  40  to, or approve or recommend, or knowingly facilitate, any sale, transfer or disposition, directly or indirectly,  whether by means of an asset sale or otherwise, of the Acquired Assets as a replacement or alternative  stalking horse bidder to Purchaser (an “Alternative Stalking Horse Transaction”).  Section 5.9. Bankruptcy Court Filings. Seller shall consult with Purchaser with respect to, and  Purchaser shall have the right to approve in its sole and absolute discretion, the proposed Bidding  Procedures Order and the Sale Order prior to the presentation of such Orders to the Bankruptcy Court.  Seller shall consult with Purchaser with respect to any other pleadings or proposed Orders to be presented  to the Bankruptcy Court relating to the Transactions, and the bankruptcy proceedings in connection  therewith, and provide Purchaser with copies of applications, pleadings, notices, proposed Orders and other  documents to be filed by Seller in the Chapter 11 Case that relate in any way to this Agreement, the  Acquisition, the Bidding Procedures, the Bidding Procedures Order or the Sale Order prior to the making  of any such filing with or submission to the Bankruptcy Court.  Section 5.10. Not a Back Up Bidder. The Bidding Procedures shall exclude Purchaser from any  obligation to act as a Backup Bidder following the Auction (if any) in the event that Purchaser is not selected  as the Successful Bidder. Notwithstanding the foregoing, Purchaser has the unilateral right to elect to serve  as the Backup Bidder in its sole discretion.  Section 5.11. Employee Matters. Neither Purchaser nor any Affiliate of Purchaser is obligated  to hire any Business Employee or any other employee of Seller, but shall have the right to offer employment  or a consulting or independent contractor engagement to any Business Employee. Seller shall provide  Purchaser and its Affiliates reasonable access to the personnel records and personnel files of the Business  Employees and shall provide such other information regarding the Business Employees as Purchaser may  reasonably request prior to the Closing Date. Purchaser and its Affiliates may, in their sole discretion,  provide an offer of employment or engagement as a consultant or independent contractor to any of the  Business Employees (the employees identified to Seller by Purchaser to receive such offers, the “Offer  Employees”), such offer to be made no more than three (3) Business Days following the Auction. Each  offer of employment or engagement shall provide that employment or engagement with Purchaser or its  Affiliate shall commence effective as of the Closing, subject to the Offer Employee’s continued  employment with Seller through the Closing and conditioned upon the Closing and including such other  terms and conditions as determined by Purchaser or its applicable Affiliate. Each Offer Employee who  accepts the offer of employment or engagement delivered pursuant to this Section 5.11 shall be deemed a  “Transferred Employee” as of the Closing. Seller shall cooperate with (including taking all actions  reasonably requested by) Purchaser and its Affiliates with respect to the offer process described in this  Section 5.11 within the time periods reasonably requested by Purchaser, including facilitating Purchaser’s  interaction and offer of employment or engagement with Offer Employees no later than three (3) Business  Days following the date hereof. Seller agrees not to interfere with Purchaser’s or its Affiliates’ offers of  employment or engagement in this Section 5.11 and agrees not make any statement (orally or in writing),  or engage in any conduct, that has the purpose or effect to discourage any Offer Employee from considering  or accepting such offer of employment or engagement by Purchaser or any of its Affiliates. Immediately as  of the Closing, the Transferred Employees (unless such employees accept an offer of engagement as a  consultant or independent contractor and remains an employee of Seller) shall cease to actively participate  in or accrue further benefits under any Benefit Plan. Seller shall be responsible for complying with Worker  Adjustment and Retraining Notification Act of 1988 and any similar Laws in connection with this  Agreement and the Transactions. Notwithstanding anything to the contrary in this Section 5.11, and without  limiting the generality of Section 9.13, no Person (including any Business Employee) other than Purchaser  or Seller shall have any right to enforce the provisions of this Section 5.11.  





 






  41  Section 5.12. Seller Confidentiality Agreements; Post-Closing Confidentiality.  (a) Seller and Purchaser hereby agree that the Confidential Disclosure Agreement  shall terminate, and no party shall have any further obligations thereunder, effective concurrently with the  Closing, other than Purchaser’s obligations with respect to the confidentiality and non-use of confidential  information exclusively related to the Excluded Assets and the Excluded Liabilities.  (b) Effective at the Closing, Seller hereby assigns to Purchaser the assignable rights  under Seller Confidentiality Agreements to enforce the non-use, non-disclosure and return or destruction  of “Confidential Information” (as such term is defined in Seller Confidentiality Agreements) to the extent  related to the Business, the Acquired Assets and the Assumed Liabilities and the non-solicitation provisions  with respect to the Transferred Employees. To the extent that such rights are not assignable, Seller shall  enforce, on Purchaser’s behalf and at Purchaser’s direction and sole expense, all such rights.  (c) Seller shall not, and shall cause its controlled Affiliates and its directors and  officers not to, disclose to any Person other than the directors, officers, employees and authorized  representatives of Purchaser and its Affiliates, or use or otherwise exploit for their benefit, any Confidential  Information, except (i) pursuant to any Order, as required in any Action or as otherwise required by  applicable Law, (ii) to enforce Seller’s rights and remedies under this Agreement or (iii) as reasonably  required in connection with the Chapter 11 Case; provided, however, that in the event disclosure is required  by applicable Law or in connection with the Chapter 11 Case, Seller shall, to the extent reasonably possible,  provide Purchaser with prompt notice of such requirement prior to making any disclosure so that Purchaser  may seek at its own cost and expense an appropriate protective order. “Confidential Information” shall  mean any proprietary or confidential information to the extent related to the Business, the Acquired Assets,  the Assumed Liabilities or Purchaser or any of its Affiliates, excluding any information that (x) is (as of the  Closing Date) or becomes generally available to the public other than as a result of a breach of this Section  5.12(c) or (y) becomes available to Seller, its Affiliates or its directors and officers after the Closing Date  on a non-confidential basis from a source other than Purchaser or its Affiliates, provided that such source  is not bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of  confidentiality to Purchaser or their Affiliates or any other Person with respect to such information.  Section 5.13. Use of Names and Marks. Purchaser and its Affiliates acknowledge and agree that,  notwithstanding the transfer of the Seller Intellectual Property included in the Acquired Assets, (a) Seller  will continue using its current corporate names, and (b) Seller shall be entitled to refer to names and marks  included in the Acquired Assets in filings with Governmental Entities and for factual or historical reference.  Section 5.14. Permits . As promptly as practicable after the Closing, Seller and Purchaser shall  file with each applicable Governmental Entity the notices and information required pursuant to any  applicable Law to transfer the Permits included in the Acquired Assets from Seller to Purchaser. The parties  also agree to use all commercially reasonable efforts to take any and all other actions required by any  Governmental Entity to effect the transfer of the Permits included in the Acquired Assets from Seller to  Purchaser.  Section 5.15. Reporting. Seller shall: (a) deliver to Purchaser, substantially contemporaneously  with its delivery to the administrative agent under the DIP Facility, all disclosures, including, but not limited  to all weekly cash-flow, variance and similar financial reporting required under the DIP Facility and (b)  deliver to Purchaser such additional financial and other information with respect to the Business and the  Seller, and on such periodic basis, as may reasonably be requested by Purchaser.  Section 5.16. Additional Actions. Neither Seller nor Purchaser will file any pleading or take any  other action in the Bankruptcy Court with respect to this Agreement or the consummation of the  





 






  42  Transactions that is inconsistent with performing and carrying out the provisions of this Agreement in  accordance with the terms and subject to the conditions herein; provided, however, that nothing contained  in the foregoing will be construed to limit in any way Purchaser’s rights under this Agreement, or to limit  Purchaser’s or Seller’s rights to advocate for the approval of this Agreement and against any Alternative  Stalking Horse Transaction; notwithstanding the foregoing, Purchaser hereby agrees and acknowledges that  this Agreement and the Transactions are subject to Seller’s right and ability to solicit, negotiate, discuss,  and consider higher or otherwise better competing bids with respect to the Business, in each case in  accordance with the Bidding Procedures Order following its entry by the Bankruptcy Court.  Section 5.17. Restrictive Covenants.  (a) From and after the Closing through the last day of the Non-Competition Period,  Seller shall not, and shall cause its Affiliates not to, either alone or in conjunction with others, directly or  indirectly, (i) engage in or assist other Persons in engaging in any Competing Business anywhere in the  world, (ii) have an interest in any Person that engages directly or indirectly in any Competing Business in  any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant  or (iii) make any negative, derogatory or disparaging statements or communications regarding Purchaser,  the Business, or the Affiliates or Representatives of Purchaser. For purposes of this Section 5.17(a), (1)  “Competing Business” means the development, manufacture, commercialization, sale, or other Exploitation  of any compound, product candidate or product that treats or is intended to neutralize, abrogate or reverse  the antiplatelet activity of ticagrelor, including any anti-ticagrelor antibody or antibody fragment, or  otherwise competes, directly or indirectly, or is reasonably likely to compete, directly or indirectly, with  the Product or the grant to any third party of any right to do any of the foregoing and (2) “Non-Competition  Period” means the period commencing as of the Closing and ending on the date that is the fifth (5th)  anniversary of the Closing Date. Notwithstanding anything in this Section 5.17(a) to the contrary, (x) the  restrictive covenants in this Section 5.17(a) shall in no way prevent Seller from acquiring not more than  1% of the outstanding equity securities of any company listed on a national securities exchange engaged in  a Competing Business solely as a passive investment and (y) in the event of an acquisition of Seller  (including by merger, consolidation or sale of stock) by, or the sale or transfer of all or substantially all of  the assets of Seller to, a third party that is not an Affiliate of Seller, nothing in this Agreement or any  Ancillary Document shall restrict the acquiring party or its Affiliates, other than Seller and Seller’s  controlled Affiliates, from pursuing or engaging in the Competing Business if such acquiring party or its  Affiliates engaged in the Competing Business prior to the completion of such transaction; provided,  however, that (A) all such acquiring party’s or its Affiliates’ activities related to the Competing Business  shall be kept separate from the activities of Seller and Seller’s controlled Affiliates and (B) such acquiring  party or its Affiliates shall implement procedures customary in the industry to ensure that employees of  Seller or any of its controlled Affiliates who had access to or knowledge of the Acquired Assets are not  utilized by such acquiring party or its Affiliates in such Competing Business.  (b) During the period commencing on the Closing Date and ending on the third (3rd)  anniversary of the Closing Date (the “Non-Solicitation Period”), Seller shall not, and shall cause its  controlled Affiliates to not, directly or indirectly, either individually or acting in concert with another Person  or Persons,   (i) request, induce or attempt to influence any distributor, supplier, vendor,  licensor, licensee, sales representative or customer of goods or services of the Business to curtail, cancel  or refrain from maintaining or increasing the amount or type of business such Person is currently  transacting, or may be transacting during the Non-Solicitation Period, with the Business or modify its  pricing or other terms with the Business, or otherwise make any negative, derogatory or disparaging  statements or communications regarding Purchaser, the Business, or the Affiliates or Representatives of  Purchaser.   





 






  43  (ii) solicit or induce any individual who is or was a Business Employee to  terminate his or her employment with Purchaser or any of its Affiliates or offer employment to or hire  or otherwise engage any such individual, whether as an independent contractor, consultant or otherwise  (provided that this Section 5.17(b)(ii) shall not restrict Seller from soliciting, hiring or otherwise  recruiting any Business Employee who at the time of such solicitation, hiring or recruitment (A) is not  an employee of Purchaser or its Affiliates and (B) either voluntarily terminated his or her employment  with Purchaser or its Affiliates or was terminated involuntarily by Purchaser or its Affiliates at least six  (6) months prior to such solicitation, hiring and recruitment); or  (iii) influence or attempt to influence any person who is an employee of the  Business during the Non-Solicitation Period to terminate his or her employment or engagement with  Purchaser.  (c) Seller acknowledges and agrees that the provisions of this Section 5.17 are  necessary and reasonable to protect Purchaser in the conduct of its business and are a material inducement  to Purchaser’s execution and delivery of this Agreement and its willingness to enter into the Transactions.  The parties recognize that the Laws and public policies of various jurisdictions may differ as to the validity  and enforceability of covenants similar to those set forth in this Section 5.17. The parties agree that any  court or arbitral authority is expressly authorized to modify any unenforceable provision of this Section  5.17 instead of severing the unenforceable provision from this Section 5.17 in its entirety, whether by  rewriting the offending provision, adding additional language to this Section 5.17, or by making any other  modifications it deems warranted to carry out the intent and agreement of the parties as embodied in this  Section 5.17. It is the intention of the parties that the provisions of this Section 5.17 be enforced to the  fullest extent permissible under the Laws and policies of each jurisdiction in which enforcement may be  sought and that the unenforceability (or the modification to conform to such Laws or policies) of any  provision of this Section 5.17 shall not render unenforceable, or impair, the remainder of the provisions of  Section 5.17 or any other provision in this Agreement. Accordingly, if any provision of this Section 5.17  shall be determined to be invalid or unenforceable, such invalidity or unenforceability shall be deemed to  apply only with respect to the operation of such provision in the particular jurisdiction in which such  determination is made and not with respect to any other provision or jurisdiction.  (d) Seller acknowledges and agrees that a breach or threatened breach of this Section  5.17 will cause irreparable damage and substantial loss to Purchaser and its Affiliates, the exact amount of  which will be difficult to ascertain, and that the remedies at law for any such breach will be inadequate.  Accordingly, Seller acknowledges and agrees that in the event of a breach or threatened breach of this  Section 5.17, Purchaser shall be entitled to equitable relief, including injunctive relief, in addition to any  and all other rights and remedies that may be available to it in respect of such breach under any applicable  Law or under this Agreement, without posting bond or other security and without a showing of the  inadequacy of monetary damages as a remedy.  (e) The Non-Competition Period and the Non-Solicitation Period shall automatically  be extended for any period of time during which the Seller is not in compliance with the covenants and  agreements set forth in this Section 5.17.  Section 5.18. Transitional Support; Phase 3 Trial Sponsorship. In furtherance and not in  limitation of Seller’s obligations under the Transition Services Agreement and otherwise under this  Agreement, from and after the date hereof until the later of the “Term” (as defined in the Transition Services  Agreement) or the first anniversary of the Closing Date, to the extent permitted by Law and subject in all  cases to the last sentence of Section 5.1(b) Seller shall use commercially reasonable efforts to cause (or,  with respect to the period prior to the Closing, to prepare for), and shall reasonably cooperate with Purchaser  with respect to, the transition of the Acquired Assets and the Business from Seller to Purchaser as  





 






  44  contemplated herein, including (a) coordinating with Purchaser to ensure continuity of the development  program with respect to the Product, including with respect to the Business Employees and Seller’s  laboratory services and operations, (b) facilitating a prompt transition to Purchaser or its designated  Affiliates of the Phase 3 Trial sponsorship, study sites and investigator and clinical development  relationships on such date or dates on or after the Closing Date as specified by Purchaser in writing, (c) if  and to the extent requested by Purchaser (and without duplication of any amounts payable under the  Transition Services Agreement), entering into a sublease or other arrangement to be effective upon the  Closing whereby Purchaser would be entitled to use a portion of Seller’s facilities located in Malvern, PA  (or any replacement facilities, including Seller’s laboratory and related facilities used in the Business) and  would reimburse Seller for Purchaser’s pro rata share of costs associated with such use by Purchaser and  otherwise, (d) communicating with licensors, licensees, suppliers, vendors, contractors, employees and  other third parties as reasonably requested by Purchaser and (e) assisting Purchaser as reasonably requested  in connection with all of the foregoing.   ARTICLE VI  CONDITIONS PRECEDENT  Section 6.1. Conditions Precedent to Obligation of Seller and Purchaser. The respective  obligations of each party to effect the Transactions shall be subject to the satisfaction at or prior to the  Closing of the following conditions:  (a) Approvals. Any waiting period (and extensions thereof) applicable to the  Acquisition under any Antitrust Law shall have expired or been terminated and any other required  approvals, consents or clearances under any Antitrust Laws shall have been obtained; and  (b) No Orders. No Governmental Entity of competent jurisdiction shall have notified  either Party that any investigation or review of the Transactions is ongoing or enacted, enforced or entered  any Law and no Order (whether temporary, preliminary or permanent) shall be in effect on the Closing  Date that has the effect of making the Transactions illegal or otherwise prohibiting the Closing.  Section 6.2. Conditions Precedent to Obligation of Seller. The obligations of Seller to effect the  Transactions shall be subject to the satisfaction or waiver (to the extent permitted by applicable Law) by  Seller at or prior to the Closing of the following conditions:  (a) Representations and Warranties. The representations and warranties of Purchaser  contained in this Agreement shall be true and correct (disregarding any exception or qualification in such  representations and warranties relating to “material” or “materiality”) as of the date hereof and as of the  Closing Date (except to the extent such representations and warranties speak as of another date (other than  the date of this Agreement), in which case such representations and warranties shall be true and correct as  of such other date), except where the failure of such representations and warranties to be so true and correct  (disregarding any exception or qualification in such representations and warranties relating to “material” or  “materiality”) has not and would not reasonably be expected to, individually or in the aggregate, materially  impair or materially delay Purchaser’s ability to perform its obligations under this Agreement or to  consummate the Transactions;  (b) Covenants. The covenants and obligations of Purchaser to be performed or  complied with at or prior to the Closing pursuant to this Agreement shall have been duly performed and  complied with in all material respects;  (c) Sale Order. The Bankruptcy Court shall have entered the Sale Order and such  Order shall not have been stayed as of the Closing Date, stayed pending appeal, reversed or vacated; and  





 






  45  (d) Officer’s Certificates. Purchaser shall have delivered to Seller a certificate duly  executed by an authorized officer of Purchaser certifying to the effect that the conditions set forth in Section  6.2(a) and Section 6.2(b) have been satisfied.  The foregoing conditions are for the benefit of Seller only and accordingly Seller will be entitled to waive  compliance with any such conditions if they see fit to do so, without prejudice to rights and remedies at  Law and in equity and also without prejudice to any rights of termination or otherwise in the event of the  failure to fulfill any other conditions in whole or in part.  Section 6.3. Conditions Precedent to Obligation of Purchaser. The obligations of Purchaser to  effect the Transactions shall be subject to the satisfaction or waiver (to the extent permitted by applicable  Law) by Purchaser at or prior to the Closing of the following conditions:  (a) Representations and Warranties. (i) The representations and warranties of Seller  shall be true and correct in all material respects (disregarding any exception or qualification in such  representations and warranties relating to “material,” “materiality” or “Material Adverse Effect”) as of the  date hereof and as of the Closing Date (except to the extent such representations and warranties speak as of  another date (other than the date of this Agreement), in which case such representations and warranties  shall be true and correct as of such other date);  (b) Covenants. The covenants and obligations of Seller to be performed or complied  with at or prior to the Closing pursuant to this Agreement shall have been duly performed and complied  with in all material respects;  (c) Assigned Contracts. Except as provided in Section 1.5(e), Seller shall have (i)  obtained the consents and waivers set forth on Schedule 6.3(c), which consents shall not, in any event,  include any consent the need for which is obviated by the Sale Order or otherwise by the provisions of the  Bankruptcy Code, and (ii) assigned to Purchaser the Assigned Contracts set forth on Schedule 1.1(c),  subject to Purchaser’s provisions of adequate assurance of future performance as required under Section  365 of the Bankruptcy Code and, except for the express contractual rights of the counterparties to the  Assigned Contracts, no Person (other than Purchaser) will have any ownership or other interest in any  Acquired Asset or otherwise with respect to the Business;  (d) Actions. No Action shall have been commenced against Purchaser or Seller that  would prevent the Closing or that would otherwise materially and adversely affect Purchaser’s ability to  operate the Business following the Closing. No injunction or restraining order shall have been issued by  any Governmental Authority, and be in effect, which restrains or prohibits any Transaction;  (e) Sale Order. The Bankruptcy Court shall have entered the Sale Order, and such  Order (i) shall not have been stayed as of the Closing Date, stayed pending appeal, reversed or vacated and  (ii) shall not have been amended, supplemented or otherwise modified in any manner materially adverse to  Purchaser;  (f) Officer’s Certificates. Seller shall have delivered to Purchaser a certificate duly  executed by an executive officer of Seller certifying to the effect that the conditions set forth in Section  6.3(a), Section 6.3(b), and Section 6.3(g) have been satisfied;  (g) Material Adverse Effect. From the date of this Agreement, there shall not have  occurred any Material Adverse Effect, nor shall any event or events have occurred that, individually or in  the aggregate, with or without the lapse of time, could reasonably be expected to result in a Material Adverse  Effect;   





 






  46  (h) Key Employees. The Required Key Employees shall have accepted and not  rescinded offers of employment or engagement as a consultant or independent contractor and shall  constitute Transferred Employees as of the Closing; and   (i) Contract Amendment. A binding term sheet with respect to, or an amendment of,  the Contract set forth on Schedule 6.3(i), with such terms and conditions that are acceptable to Purchaser  in its sole and absolute discretion, shall have been duly executed by the counterparty thereto, which, upon  countersignature by Purchaser, shall be effective at or prior to Closing.  The foregoing conditions are for the benefit of Purchaser only and accordingly Purchaser will be entitled  to waive compliance with any such conditions if they see fit to do so, without prejudice to any rights and  remedies at Law and in equity and also without prejudice to any of rights of termination or otherwise in the  event of the failure to fulfill any other conditions in whole or in part.  ARTICLE VII  INDEMNIFICATION  Section 7.1. Indemnification.  (a) Survival. All representations and warranties contained in this Agreement, any  Ancillary Document or in any certificate or instrument delivered by or on behalf of Seller, any Affiliate of  Seller or Purchaser pursuant to this Agreement, including the certificates delivered at Closing pursuant to  Section 6.2(d) and Section 6.3(f), shall survive the Closing and shall continue until 11:59 p.m. Eastern Time  on the date that is eighteen (18) months following the Closing Date, at which time they shall expire.  Notwithstanding the foregoing, each of the representations and warranties in Section 3.1 (Qualification,  Organization, Subsidiaries), Section 3.2 (Authority of Seller), Section 3.6 (Title to Property; Sufficiency of  Assets), Section 3.8 (Brokers or Finders), Section 3.10 (Intellectual Property), Section 3.19 (Taxes), Section  4.1 (Qualification; Organization), Section 4.2 (Authority of Purchaser) and Section 4.5 (Brokers or Finders)  (collectively, the “Fundamental Reps”) shall survive the Closing until 11:59 p.m. Eastern Time on the date  that is the later of (i) the seventh anniversary of the Closing Date or (ii) 60 days after the expiration of all  applicable statutes or periods of limitations (giving effect to any waiver, mitigation or extension thereof)  (which, for the avoidance of doubt, does not mean the statute of limitations applicable to a claim for breach  of contract). All covenants, agreements or obligations contained in this Agreement, any Ancillary  Document or in any certificate or instrument delivered by or on behalf of Seller, any Affiliate of Seller or  Purchaser pursuant to this Agreement shall survive the Closing indefinitely or for the period explicitly  specified therein. Notwithstanding anything to the contrary set forth in this Agreement, any claim for  indemnity asserted in good faith and in writing by notice from the non-breaching party to the breaching  party prior to the termination of the applicable survival period set forth above and, for the avoidance of  doubt, regardless of whether any Actions related to such claim has then been filed, shall not thereafter be  barred by the expiration of the relevant representation, warranty or covenant and shall survive until finally  resolved by Actions or otherwise in accordance with this Agreement or until the maximum time allowed  by Law.  (b) Indemnification by Seller. Following the Closing, Seller shall indemnify, defend  and hold harmless Purchaser and its Affiliates, and their respective Representatives, equity holders,  successors and permitted assigns (collectively, “Purchaser Indemnitees”) from and against, and compensate  and reimburse Purchaser Indemnitees for, any and all Losses actually incurred or suffered by any Purchaser  Indemnitee arising out of or related to:  (i) any inaccuracy in or any breach by Seller or any Affiliate of Seller of any  of the representations or warranties made by Seller or any Affiliate of Seller in ARTICLE III or in any  





 






  47  certificate or instrument delivered by or on behalf of Seller or any Affiliate of Seller pursuant to this  Agreement;  (ii) any failure of Seller or any Affiliate of Seller to perform or any breach by  Seller or any Affiliate of Seller of any of its covenants, agreements or obligations contained in this  Agreement, or in any certificate or instrument delivered by or on behalf of Seller or any Affiliate of  Seller pursuant to this Agreement;  (iii) any Excluded Liability;   (iv) any failure of Seller to pay Periodic Taxes or Transfer Taxes allocated to  Seller under Section 9.1; or  (v) any Taxes required by applicable Law to be withheld from any payment  to Seller made hereunder that are not withheld by Purchaser, but not including penalties, interest or  additions to Tax resulting from Purchaser’s or the applicable withholding agent’s failure to timely  withhold and pay such Taxes.  (c) Indemnification by Purchaser. Following the Closing, Purchaser shall indemnify,  defend and hold harmless Seller and its Affiliates, and their respective Representatives, equity holders,  successors and permitted assigns (collectively, “Seller Indemnitees”) from and against, and compensate  and reimburse Seller Indemnitees for, any and all Losses incurred or suffered by any Seller Indemnitee  arising out of or related to:  (i) any inaccuracy in or any breach by Purchaser or any Affiliate of Purchaser  of any of the representations or warranties made by Purchaser or any Affiliate of Purchaser in ARTICLE  IV or in any certificate or instrument delivered by or on behalf of Purchaser or any Affiliate of Purchaser  pursuant to this Agreement;  (ii) any failure of Purchaser or any Affiliate of Purchaser to perform or any  breach by Purchaser or any Affiliate of Purchaser of any of its covenants, agreements or obligations  contained in this Agreement or in any certificate or instrument delivered by or on behalf of Purchaser  or any Affiliate of Purchaser pursuant to this Agreement;  (iii) any Assumed Liability; or  (iv) any failure of Purchaser to pay Periodic Taxes or Transfer Taxes allocated  to Purchaser under Section 9.1.  Section 7.2. Claim Procedure.  (a) Except as provided in Section 7.2(b) with respect to Third Party Claims, in the  event of a claim made by a Purchaser Indemnitee or a Seller Indemnitee (the “Indemnified Party”), the  Indemnified Party shall give reasonably prompt written notice to the other party (the “Indemnifying Party”),  which notice (an “Indemnification Certificate”) shall describe such Indemnified Party’s claim for  indemnification and the estimated amount, if reasonably practicable, of the claimed Losses; provided,  however, that the failure to give reasonably prompt notice shall not relieve the applicable Indemnifying  Party of its indemnification obligations under this Agreement except to the extent that the Indemnifying  Party is materially and adversely prejudiced by reason of such failure. The Indemnified Party shall be  entitled to payment for the Losses set forth in the Indemnification Certificate pursuant to Section 7.2(c)  unless the Indemnifying Party objects in a written statement to the claim made in the Indemnification  





 






  48  Certificate and delivers such statement to the Indemnified Party prior to the expiration of thirty (30) days  from the Indemnifying Party’s receipt of such Indemnification Certificate. An Indemnifying Party’s failure  to object within such thirty (30) day period to any claim set forth in an Indemnification Certificate shall be  deemed to be the Indemnifying Party’s acceptance of, and waiver of any objections to, such claim. If an  Indemnifying Party shall so object in writing to any claim or claims made in any Indemnification  Certificate, the Indemnifying Party and the Indemnified Party shall attempt in good faith for a period of  twenty (20) days following the Indemnified Party’s receipt of such objection notice to agree upon the  respective rights of the parties with respect to each of such claims. If no such agreement can be reached  after such twenty (20) day period of good faith negotiation, either the Indemnifying Party or the Indemnified  Party may initiate Actions for purposes of having the matter settled in accordance with the terms of this  Agreement.  (b) In the event an Indemnified Party becomes aware of a claim made by a third party  (including any Action commenced or threatened to be commenced by any third party) (each, a “Third Party  Claim”) that such Indemnified Party reasonably believes may result in an indemnification claim pursuant  to Section 7.1, such Indemnified Party shall promptly (and in any event within thirty (30) days after  becoming aware of such Third Party Claim) notify the Indemnifying Party in writing of such Third Party  Claim (such notice, the “Claim Notice”). The Claim Notice shall describe (to the extent known by the  Indemnified Party) the Third Party Claim and provide the estimated amount, if reasonably practicable, of  the claimed damages; provided, however, that no delay or failure on the part of the Indemnified Party in  delivering a Claim Notice shall relieve the Indemnifying Party from any Liability hereunder except to the  extent that the Indemnifying Party is materially and adversely prejudiced by reason of such failure.  Purchaser may, upon written notice thereof to Seller, assume control of the defense of any Third Party  Claim referred to therein (at Seller’s sole cost and expense (which shall be subject to Section 7.3) if Seller  is the Indemnifying Party). If Purchaser does not so assume control of the defense of such Third Party  Claim, Seller shall control the defense of such Third Party Claim, and for the avoidance of doubt all costs  and expenses associated therewith shall constitute Losses subject to indemnification and reimbursement  pursuant and subject to this ARTICLE VII. The Party not controlling the defense of such Third Party Claim  (the “Non-Controlling Party”) may participate therein at its own expense; provided, however, that if the  Indemnifying Party assumes control of the defense of such Third Party Claim and the Indemnifying Party  and the Indemnified Party have materially conflicting interests or different defenses available with respect  to such Third Party Claim that cause the Indemnified Party to hire its own separate counsel with respect to  such Third Party Claim, the reasonable fees and expenses of a counsel to the Indemnified Party shall be  considered “Losses” for purposes of this Agreement. The party controlling the defense of a Third Party  Claim (the “Controlling Party”) shall keep the Non-Controlling Party reasonably advised of the status of  such claim and the defense thereof and shall consider in good faith recommendations made by the Non- Controlling Party with respect thereto. The Non-Controlling Party shall furnish the Controlling Party with  such information as it may have with respect to such Third Party Claim (including copies of any summons,  complaint or other pleading that may have been served on such party and any written claim, demand,  invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and  assist the Controlling Party in the defense of such Third Party Claim; provided that neither the Controlling  Party nor the Non-Controlling Party will be required to furnish any such information that would (in the  reasonable judgment of such party upon advice of counsel) be reasonably likely to (a) waive any privileges,  including the attorney-client privilege, held by such party or any of its Affiliates or (b) breach any duty of  confidentiality owed to any Person (whether such duty arises contractually, by Law or otherwise) or any  Contract with any other Person or violate any applicable Law (provided, that such party shall use  commercially reasonable efforts to obtain any required consents and take such other reasonable action (such  as the entry into a joint defense agreement or other arrangement to avoid loss of attorney-client privilege)  to permit such access). Neither the Indemnified Party nor the Indemnifying Party shall agree to any  settlement of, or the entry of any judgment arising from, any such Third Party Claim without the prior  written consent of the other such party, which consent shall not be unreasonably withheld, conditioned or  





 






  49  delayed; provided, however, that the consent of the Indemnified Party shall not be required with respect to  any such settlement or judgment if the Indemnifying Party agrees in writing to pay or cause to be paid any  amounts payable pursuant to such settlement or judgment and such settlement or judgment includes no  admission of liability by or other obligation on the part of the Indemnified Party and includes a complete  release of the Indemnified Party from further Liability.  (c) Once a Loss is agreed to by the Indemnifying Party or is finally adjudicated or  otherwise finally determined to be payable pursuant to this ARTICLE VII (the “Determination Date”),  subject to Section 7.2(d), the Indemnifying Party shall satisfy its obligations within ten (10) Business Days  of the Determination Date by wire transfer of immediately available funds to an account designated by the  Indemnified Party.  (d) The Purchaser Indemnitees may set off any amount to which they may be entitled  under this Agreement (including this ARTICLE VII) against any amount otherwise payable by Purchaser  or any other Purchaser Indemnitee to Seller or any Affiliate of Seller (including any Milestone Payments).  For the avoidance of doubt, Purchaser may exercise such right of setoff prior to the Determination Date  with respect to any claim under this ARTICLE VII. The exercise of such setoff right in good faith, whether  or not ultimately determined to be justified, will not constitute a breach or event of default under this  Agreement or any other Contract relating to any amount against which the setoff is applied. Neither the  exercise of, nor the failure to exercise, the Purchaser Indemnitees’ rights under this Section 7.2 shall  constitute an election of remedies or limit any Purchaser Indemnitee in any manner in the enforcement of  any other remedies that may be available to it; provided, however, that Purchaser’s exclusive means of  recovery with respect to any claims pursuant to Section 7.1(b)(i) shall be pursuant to the setoff rights set  forth in this Section 7.2(d).  Section 7.3. Limitations on Indemnification.  (a) No Indemnifying Party shall be liable to an Indemnified Party under Section  7.1(b)(i) or Section 7.1(c)(i), as applicable (other than with respect to any inaccuracies in or breaches of a  Fundamental Rep), until the aggregate amount of all Losses sought from the Indemnifying Party under this  ARTICLE VII exceeds $250,000 (the “Deductible”), in which case the Indemnified Party shall be entitled  to indemnification of the Indemnified Party’s Losses in excess of such amount. In no event shall any  Indemnifying Party have Liability for indemnification under Section 7.1(b)(i) or Section 7.1(c)(i), as  applicable (other than with respect to any inaccuracies in or breaches of a Fundamental Rep), for any  amount exceeding, in the aggregate, $10,000,000. In no event shall any Indemnifying Party have Liability  for indemnification under this ARTICLE VII for any amount exceeding, in the aggregate, the Purchase  Price received by or payable to Seller; provided, however, that the limitations on indemnification under this  Section 7.3 shall not apply to Fraud.  (b) For purposes of this ARTICLE VII, all “material,” “Material Adverse Effect” and  similar materiality type qualifications contained in the representations and warranties shall be ignored and  not given any effect, including for purposes of determining (a) the amount of any Losses incurred, (b)  whether or not a breach of a representation or warranty has occurred and (c) whether the Basket has been  surpassed.  (c) The amount of Losses recovered by an Indemnified Party under Section 7.1(b) or  Section 7.1(c), as applicable, shall be reduced by (i) any amounts actually recovered by the Indemnified  Party from a third party in connection with such Third Party Claim and (ii) the amount of any insurance  proceeds paid to the Indemnified Party relating to such claim, in each case ((i) and (ii)), net of the  Indemnified Party’s costs of recovery (including any related premium increases). If any amounts referenced  in the preceding sentence are received after payment by the Indemnifying Party of the full amount otherwise  





 






  50  required to be paid to an Indemnified Party pursuant to this ARTICLE VII, the Indemnified Party shall  repay to the Indemnifying Party, promptly after such receipt, any amount that the Indemnifying Party would  not have had to pay pursuant to this ARTICLE VII had such amounts been received prior to such payment.  Section 7.4. Tax Treatment of Indemnification Payments. All payments made pursuant to this  ARTICLE VII shall be treated as adjustments to the Purchase Price for all Tax purposes, unless otherwise  required by applicable Law.  Section 7.5. Exclusive Remedy. Subject to Section 1.6(a)(ii)(E) and Section 9.14, each party  acknowledges and agrees that, following the Closing, the remedies provided for in this ARTICLE VII shall  be the sole and exclusive remedies for claims and damages available to the Indemnified Parties for breaches  of the representations and warranties in ARTICLE III and ARTICLE IV and any certificate delivered in  connection with this Agreement, except that nothing herein shall limit the Liability of either party for claims  arising from Fraud. This Section 7.5 shall not affect either party’s (or their respective Affiliates’) ability to  exercise any rights or remedies available to such party (or their respective Affiliates) under Section 9.14 or  under any Ancillary Document with respect to claims arising under such Ancillary Document.  Section 7.6. Effect of Investigation. The representations, warranties and covenants of the  Indemnifying Party, and any Indemnified Party’s right to indemnification with respect thereto, shall not be  affected or deemed waived by reason of any investigation made by or on behalf of any Indemnified Party  (including by any of its Representatives) or by reason of the fact that any Indemnified Party or any of its  Representatives knew or should have known that any such representation or warranty is, was or might be  inaccurate or by reason of any Indemnified Party’s waiver of any condition set forth in Section 6.2 or  Section 6.3, as the case may be.  ARTICLE VIII  TERMINATION  Section 8.1. Termination.  (a) This Agreement may be terminated by either Purchaser or Seller in the event that  the Closing has not occurred on or before January 31, 2023, or such later date as may be mutually agreed  in writing by the parties (the “Outside Date”); provided, however, that the right to terminate this Agreement  pursuant to this Section 8.1(a) shall not be available to any party whose failure to materially perform any  of its obligations under this Agreement required to be performed by it at or prior to the Closing results in  the failure of the Closing to occur prior to such date.  (b) This Agreement may also be terminated prior to the Closing:  (i) at any time by the mutual written agreement of Purchaser and Seller;  (ii) by Purchaser, if (x) there shall have been a breach of any of the covenants  or agreements or any of the representations or warranties set forth in this Agreement on the part of Seller  which breach, either individually or in the aggregate with other breaches by Seller, would result in, if  occurring or continuing on the Closing Date, the failure of the conditions set forth in Section 6.3(a) or  Section 6.3(b), as the case may be, or (y) Seller has breached the Bidding Procedures Order or the Sale  Order, which such breach, in each case which is not cured within ten Business Days following written  notice to Seller thereof (and in any event prior to the Outside Date) or which by its nature or timing  cannot be cured within such time period (provided, that Purchaser is not then in material breach of any  of the covenants, agreements, representations or warranties set forth in this Agreement on the part of  Purchaser);  





 






  51  (iii) by Seller, if (x) there shall have been a breach of any of the covenants or  agreements or any of the representations or warranties set forth in this Agreement on the part of  Purchaser which breach, either individually or in the aggregate with other breaches by Purchaser, would  result in, if occurring or continuing on the Closing Date, the failure of the conditions set forth in Section  6.2(a) or Section 6.2(b), as the case may be, or (y) there has been any material breach by Purchaser of  the Bidding Procedures Order or the Sale Order, in each case which is not cured within ten (10) Business  Days following written notice to Purchaser thereof (and in any event prior to the Outside Date) or which  by its nature or timing cannot be cured within such time period (provided, that Seller is not then in  material breach of any of the covenants, agreements, representations or warranties set forth in this  Agreement on the part of Seller);  (iv) by Purchaser, if Seller shall fail to file the Sale Motion with the  Bankruptcy Court within three (3) Business Days following the execution of this Agreement;  (v) by Purchaser, if Seller files a motion requesting, consents to, fails to timely  contest a pleading seeking, or the Bankruptcy Court, sua sponte, orders (A) a conversion of the Chapter  11 Case into a liquidation proceeding under Chapter 7 of the Bankruptcy Code, (B) the dismissal of the  Chapter 11 Case, (C) the appointment of a Chapter 11 trustee or examiner or (D) the termination or  reduction of the exclusivity period described in 11 U.S.C. § 1121(b);  (vi) by Purchaser, if the Bankruptcy Court enters any Order materially  inconsistent with the Bidding Procedures Order, the Sale Order, this Agreement or the Acquisition, each  as determined by Purchaser in its reasonable discretion;  (vii) by either Seller or Purchaser, if a Governmental Entity issues a final, non- appealable ruling or Order permanently prohibiting the Transactions; provided, however, that the right  to terminate this Agreement pursuant to this Section 8.1(b)(vii) shall not be available to any party whose  breach of any of its representations, warranties, covenants or agreements contained herein results in such  ruling or Order;  (viii) by Purchaser, if any creditor of Seller obtains a final and unstayed Order  of the Bankruptcy Court granting relief from the stay to foreclose on any portion of the Acquired Assets;  (ix) by either Seller or Purchaser, if the Auction has occurred and Purchaser is  not the Successful Bidder;  (x) by Purchaser, if the DIP Facility shall have been terminated, the DIP  Lenders shall have refused to advance funds on account of the failure of any condition precedent thereto  or the principal amount of the loans thereunder shall be (or shall be asserted by the lenders thereunder  to be) due and payable at any time on or prior to the Closing; and   (xi) by Purchaser, if the Bankruptcy Court has not entered the Bidding  Procedures Order by November 21, 2022.  For the avoidance of doubt, the parties acknowledge and agree, that in the event that Seller determines that  the last Overbid submitted by Purchaser is higher or otherwise better than all other Qualified Bids as such  Qualified Bids may be amended by an Overbid submitted at the Auction, then within two (2) Business Days  following the conclusion of the Auction, Seller and Purchaser shall enter into an amendment to this  Agreement to reflect Purchaser’s last Overbid.  Section 8.2. Effect of Termination.  





 






  52  (a) Except as otherwise provided in this Section 8.2, in the event of termination of this  Agreement by either party in accordance with Section 8.1, all rights and obligations of the parties under  this Agreement shall terminate without any Liability of any party to the other party, except for Liability for  Fraud or intentional breach of this Agreement prior to such termination. The provisions of Section 1.6(b)(ii),  Section 1.6(b)(iii), Section 5.10, this Section 8.2 and ARTICLE IX (other than Section 9.1 and Section 9.2)  shall expressly survive the termination of this Agreement.  (b) In consideration of Purchaser and its Affiliates having expended considerable time  and expense in connection with this Agreement and the negotiation thereof, and the identification and  quantification of assets to be included in the Acquired Assets, and to compensate Purchaser as a stalking- horse bidder, and regardless of whether or not Purchaser makes any matching or competing bids at the  Auction, in the event that this Agreement is terminated pursuant to Section 8.1 (other than (x) by Purchaser  and Seller pursuant to Section 8.1(b)(i) or (y) by Seller pursuant to Section 8.1(a) or Section 8.1(b)(iii)  (unless at the time of any such termination Purchaser would have been entitled to terminate this  Agreement)), Purchaser shall be entitled to payment by Seller of a break-up fee in an amount equal to  $2,000,000 (the “Break-Up Fee”), which such amount Seller shall pay (or cause to be paid) to Purchaser  upon the consummation of an Alternative Transaction. The Break-Up Fee shall be treated as a superpriority  claim to be paid prior to all unsecured claims and all administrative expense claims in the Chapter 11 Case  under Section 503(b)(1)(A) and Section 507(a)(2) of the Bankruptcy Code, subject only to the superpriority  claims granted in favor of the DIP Lender in an amount not to exceed the amount of the DIP Loan  Commitment (as defined in the interim order authorizing Seller to obtain postpetition financing and related  relief [Chapter 11 Case Docket No. 57] and in any final order thereon). Seller acknowledges and agrees  that (i) the approval of the Break-Up Fee is an integral part of the Transactions; (ii) in the absence of Seller’s  obligation to pay the Break-Up Fee, Purchaser would not have entered into this Agreement; (iii) the entry  of Purchaser into this Agreement is necessary for preservation of the estate of Seller and is beneficial to  Seller because, in Seller’s business judgment, it will enhance Seller’s ability to maximize the value of its  assets for the benefit of its creditors and other stakeholders; (iv) the Break-Up Fee is reasonable in relation  to Purchaser’s costs and efforts and to the magnitude of the Transactions and Purchaser’s lost opportunities  resulting from the time spent pursuing the Transactions; and (v) time is of the essence with respect to the  entry of the Bidding Procedures Order by the Bankruptcy Court, approving, among other things, the process  by which bids may be solicited, including the Bidding Procedures. For the avoidance of doubt, the Break- Up Fee, if payable pursuant to this Section 8.2(b), shall be in addition to the return of the Deposit Funds  and payment of the Expense Reimbursement Amount, in each case, to the extent payable to Purchaser  pursuant to Section 1.6(b)(iii) and Section 8.2(c), respectively.  (c) In consideration of Purchaser and its Affiliates having expended considerable time  and expense in connection with this Agreement and the negotiation thereof, and the identification and  quantification of assets to be included in the Acquired Assets, and to compensate Purchaser as a stalking- horse bidder, and regardless of whether or not Purchaser makes any matching or competing bids at the  Auction, in the event that this Agreement is terminated pursuant to Section 8.1 (other than (x) by Purchaser  and Seller pursuant to Section 8.1(b)(i) or (y) by Seller pursuant to Section 8.1(a) or Section 8.1(b)(iii)  (unless at the time of any such termination Purchaser would have been entitled to terminate this  Agreement)), Purchaser shall be entitled to payment by Seller of the Expense Reimbursement Amount,  which such amount Seller shall pay (or cause to be paid) to Purchaser upon the consummation of an  Alternative Transaction. Seller acknowledges and agrees that (A) the payment of the Expense  Reimbursement Amount is an integral part of the Transactions, (B) in the absence of Seller’s obligation to  make this payment, Purchaser would not have entered into this Agreement, (C) the damages resulting from  termination of this Agreement under circumstances where Purchaser is entitled to the Expense  Reimbursement Amount are uncertain and incapable of accurate calculation and that the delivery of the  Expense Reimbursement Amount to Purchaser is not a penalty, but rather shall constitute a reasonable  amount that will compensate Purchaser in the circumstances where Purchaser is entitled to the reimbursable  





 






  53  expenses for the efforts and resources expended and opportunities forgone while negotiating this Agreement  and in reliance on this Agreement and on the expectation of the consummating of the Transactions, and  that, without these agreements, Purchaser would not enter into this Agreement; (D) time is of the essence  with respect to the payment of the Expense Reimbursement Amount and (E) the Expense Reimbursement  Amount shall, subject to Bankruptcy Court approval, constitute a superpriority claim to be paid prior to all  unsecured claims and all administrative expense claims of Seller’s estate under Sections 503(b)(1)(A) and  507(a)(2) of the Bankruptcy Code, subject only to the superpriority claims granted in favor of the DIP  Lender in an amount not to exceed the amount of the DIP Loan Commitment (as defined in the interim  order authorizing Seller to obtain postpetition financing and related relief [Chapter 11 Case Docket No. 57]  and in any final order thereon). For the avoidance of doubt, the Expense Reimbursement Amount, if payable  pursuant to this Section 8.2(c), shall be in addition to the Deposit Funds and the Break-Up Fee, in each  case, to the extent payable to Purchaser pursuant to Section 1.6(b)(iii) and Section 8.2(b), respectively.  (d) Notwithstanding Section 8.2(a), Purchaser shall maintain the right to receive the  payment of the Break-Up Fee and the Expense Reimbursement Amount (as the case may be) from Seller  as provided in Section 8.2(b) and Section 8.2(c). If this Agreement is terminated by Seller as contemplated  by Section 1.6(b)(ii), (i) Purchaser shall forfeit the Deposit Funds and any interest thereon; (ii) other than  in connection with Fraud on the part of, or an intentional breach of this Agreement by, Purchaser, the receipt  of the Deposit Funds shall be the sole and exclusive remedy available to Seller against Purchaser or any of  its former, current or future equityholders, directors, officers, Affiliates, agents or Representatives with  respect to this Agreement and the Transactions; and (iii) upon receipt by Seller of the Deposit Funds, neither  Purchaser nor any of its former, current or future equityholders, directors, officers, Affiliates, agents or  Representatives shall have any further Liability or obligation relating to or arising out of this Agreement or  the Transactions.  (e) If Seller fails to take any action necessary to cause the delivery of the Break-Up  Fee or the Expense Reimbursement Amount under circumstances where Purchaser is entitled to the Break- Up Fee or the Expense Reimbursement Amount and, in order to obtain such Break-Up Fee or Expense  Reimbursement Amount, Purchaser commences a suit which results in a judgment in favor of Purchaser,  Seller shall pay to Purchaser, in addition to the Break-Up Fee and the Expense Reimbursement Amount, an  amount in cash equal to the costs and expenses (including attorney’s fees) incurred by Purchaser in  connection with such suit, which such amounts shall constitute a superpriority administrative expense  priority claim under Section 503(b)(1)(A) and Section 507(a)(2) of the Bankruptcy Code, subject only to  the superpriority claims granted in favor of the DIP Lender in an amount not to exceed the amount of the  DIP Loan Commitment (as defined in the interim order authorizing Seller to obtain postpetition financing  and related relief [Chapter 11 Case Docket No. 57] and in any final order thereon), and shall be payable as  set forth in Section 8.2(c).  (f) The parties acknowledge that the agreements contained in this Section 8.2 are an  integral part of the Transactions, that the damages resulting from termination of this Agreement under  circumstances where Seller is entitled to the Deposit Funds are uncertain and incapable of accurate  calculation and that the delivery of the Deposit Funds is not a penalty but rather shall constitute liquidated  damages in a reasonable amount that will compensate Seller in the circumstances where Seller is entitled  to the Deposit Funds for the efforts and resources expended and opportunities forgone while negotiating  this Agreement and in reliance on this Agreement and on the expectation of the consummation of the  Transactions, and that, without these agreements, Seller would not enter into this Agreement. If Purchaser  fails to take any action necessary to cause the delivery of the Deposit Funds pursuant to the Escrow  Agreement under circumstances where Seller is entitled to the Deposit Funds and, in order to obtain such  Deposit Funds Seller commences a suit which results in a judgment in favor of Seller, Purchaser shall pay  to Seller an amount in cash equal to the costs and expenses (including attorney’s fees) incurred by Seller in  connection with such suit.  





 






  54  ARTICLE IX  GENERAL PROVISIONS  Section 9.1. Tax Matters.  (a) All sales, use, excise, transfer, documentary, stamp, value added, recordation,  license, conveyance and other similar Taxes (“Transfer Taxes”), if any, imposed on or with respect to the  Acquisition shall be borne 50% by Seller and 50% by Purchaser shall be paid to the appropriate Taxing  Authority promptly when due by the Person having the obligation to pay such Transfer Tax under applicable  Law. The party responsible under applicable Law for filing a Tax Return with respect to any such Transfer  Taxes shall prepare and timely file such Tax Return and promptly provide a copy of such Tax Return to the  other party. Purchaser shall use reasonable efforts and cooperate in good faith to reduce or eliminate any  Transfer Taxes to the extent permitted by applicable Law, including the transfer by remote electronic  transmission of all Acquired Assets capable of being so transmitted (and the delivery of certificates  evidencing such electronic transmission) and in the filing of any Tax Returns required with respect to any  applicable Transfer Taxes. Without limiting the generality of the foregoing, Seller and Purchaser and their  respective Affiliates shall use commercially reasonable efforts to obtain available exemptions from Transfer  Taxes and will cooperate with each other in providing any information and documentation that may be  necessary to obtain any such exemptions, including any applicable resale or exemption certificate.  (b) For purposes of this Agreement, with respect to any Acquired Asset, Seller and  Purchaser shall apportion the Liability for personal property Taxes, ad valorem Taxes, and similar Taxes  (“Periodic Taxes”) for Straddle Periods applicable to such Acquired Asset in accordance with this Section  9.1(b). The Periodic Taxes described in this Section 9.1(b) shall be apportioned between Seller and  Purchaser as of the Closing Date, with Purchaser liable for that portion of the Periodic Taxes for a Straddle  Period (which portion of such Taxes shall for purposes of this Agreement be deemed attributable to the  Post-Closing Tax Period) equal to the Periodic Taxes for such Straddle Period multiplied by a fraction, the  numerator of which is the number of days remaining in such Straddle Period after the Closing Date, and  the denominator of which is the total number of days in such entire Straddle Period. Seller shall be liable  for that portion of the Periodic Taxes for a Straddle Period for which Purchaser is not liable under the  preceding sentence (which portion of such Taxes shall for purposes of this Agreement be deemed  attributable to the Pre-Closing Tax Period). The party responsible under applicable Law for paying a Tax  described in this Section 9.1(b) shall be responsible for administering the payment of such Tax. All  apportionments hereunder shall be final as of the Closing Date, and except where the apportionment is  inaccurate as a result of the gross negligence of a party, there will be no re-apportionments of any Periodic  Taxes regardless of whether information becomes available after the Closing Date that alters the amount of  Taxes that would have been due with respect to the Straddle Period. To the extent the Liability for Periodic  Taxes for a certain Straddle Period is not determinable at the time of Closing or such Periodic Taxes are  charged in arrears, such Periodic Taxes shall be prorated for such Straddle Period, based on the most recent  ascertainable full Tax year without adjustment. For purposes of this Section 9.1(b), the Straddle Period for  ad valorem Taxes and personal property Taxes shall be the fiscal period for which such Taxes were assessed  by the applicable Tax jurisdiction.  (c) Seller, on the one hand, or Purchaser, on the other hand, as the case may be (the  “Reimbursing Party”), shall provide reimbursement for any Tax paid by the other (the “Paying Party”), all  or a portion of which is the responsibility of the Reimbursing Party in accordance with the terms of this  Agreement (including this Section 9.1). Within a reasonable time prior to the payment of any such Tax, the  Paying Party shall give notice to the Reimbursing Party of the Tax payable and the Paying Party’s and  Reimbursing Party’s respective Liability therefor, although failure to do so shall not relieve the  Reimbursing Party from its Liability hereunder except to the extent the Reimbursing Party is actually  prejudiced thereby.  





 






  55  (d) The parties shall provide each other with such assistance as reasonably may be  requested by any of them in connection with (i) the preparation of any Tax Return, (ii) the determination of  any Liability in respect of Taxes or the right to any refund, credit or prepayment in respect of Taxes  (including pursuant to this Agreement) or (iii) any audit or other examination by any Taxing Authority, or  any judicial or administrative proceeding with respect to any Taxes.  Section 9.2. Bulk Sales. Purchaser and Seller hereby waive compliance with the requirements  and provisions of any “bulk-transfer” or similar Laws of any jurisdiction that may otherwise be applicable  with respect to the sale, conveyance, assignment or transfer of any or all of the Acquired Assets to  Purchaser. In furtherance and not in limitation of the foregoing, Seller shall ensure that the Sale Order shall  provide either that (a) Seller has complied with any applicable bulk sale or bulk transfer Laws of any  jurisdiction in connection with the Transactions or (b) compliance with such Laws described in clause (a)  is not necessary or appropriate under the circumstances.   Section 9.3. Public Announcements. Unless otherwise required by applicable Law or by  obligations of Seller or Purchaser or their respective Affiliates pursuant to any listing agreement with or  rules of any securities exchange or in order to enforce a party’s rights or remedies under this Agreement,  and subject to the provisions of the Bankruptcy Code and Seller’s obligations in connection with the  Chapter 11 Case, Seller and Purchaser shall consult with each other before issuing any press release or  otherwise making any public statement with respect to this Agreement, the Transactions or the activities  and operations of the other and shall not issue any such release or make any such statement without the  prior written consent of the other (such consent not to be unreasonably withheld, conditioned or delayed).  Section 9.4. Notices. Any notice pursuant to this Agreement must be in writing and will be  deemed effectively given by the applicable party on the earliest of the date (a) three (3) Business Days after  such notice is sent by registered U.S. mail, return receipt requested, (b) on which such notice is sent by  email, (c) one Business Day after such notice is deposited with an overnight courier service for next day  delivery, or (d) on which such notice is delivered by hand; in each case to the appropriate address set forth  below (or by such other address as the party may designate by notice to the other party, with such change  of address effective five days following delivery of such notice of change):  to Seller:  PhaseBio Pharmaceuticals, Inc.  1 Great Valley Parkway, Suite 30  Malvern, PA 19355  Attention: Jonathan Mow, CEO and Kris Hanson, SVP & General Counsel  Email: jonathan.mow@phasebio.com; kris.hanson@phasebio.com  with a courtesy copy (which shall not constitute notice) to:  Cooley LLP  11951 Freedom Drive, 14th Floor  Reston, VA 20190  Attention: Christian E. Plaza   Email: cplaza@cooley.com  to Purchaser:  Chiesi Farmaceutici S.p.A.  Via Palermo 26/A  





 






  56  43122 Parma  Italy  Attention: Marco Vecchia, Group General Counsel, and Mike Gordon, SVP and General  Counsel of Chiesi USA  Email: m.vecchia@chiesi.com; mike.gordon@chiesi.com  with courtesy copies (which shall not constitute notice) to:  Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P.  150 Fayetteville Street, Suite 2300  Raleigh, North Carolina 27601  Attention: Heyward D. Armstrong and Justin G. Truesdale  E-Mail: harmstrong@smithlaw.com and jtruesdale@smithlaw.com  and  K&L Gates LLP  4350 Lassiter at North Hills Av, Suite 300  P.O. Box 17047  Raleigh, North Carolina 27619  Attention: A. Lee Hogewood III and John R. Gardner  Email: a.lee.hogewoodiii@klgates.com; john.gardner@klgates.com    Section 9.5. Descriptive Headings; Interpretative Provisions. The headings contained in this  Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of  this Agreement. The words “hereof,” “herein” and “hereunder” and words of like import used in this  Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.  References to Articles, Sections, Exhibits and Schedules are to Articles, Sections, Exhibits and Schedules  of this Agreement unless otherwise specified. All Exhibits and Schedules annexed hereto or referred to  herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein. Any  capitalized terms used in any Exhibit or Schedule but not otherwise defined therein, shall have the meaning  as defined in this Agreement. Any singular term in this Agreement shall be deemed to include the plural,  and any plural term the singular. Where a word or phrase is defined herein, each of its other grammatical  forms shall have a corresponding meaning. Whenever the words “include,” “includes” or “including” are  used in this Agreement, they shall be deemed to be followed by the words “without limitation,” whether or  not they are in fact followed by those words or words of like import. Except where the context otherwise  requires, the word “or” is used in the inclusive sense (and/or). Whenever the last day for the exercise of any  right or the discharge of any duty under this Agreement falls on other than a Business Day, the party having  such right or duty shall have until the next Business Day to exercise such right or discharge such duty.  Unless otherwise indicated, the word “day” shall be interpreted as a calendar day. References to “dollars”  or “$” mean United States dollars, unless otherwise clearly indicated to the contrary. The word “notice”  shall mean notice in writing (whether or not specifically stated) and shall include notices, consents,  approvals and other written communications contemplated under this Agreement. The phrases “made  available to Purchaser,” “delivered to Purchaser” or “provided to Purchaser” and similar phrases as used  herein with respect to any documents or information means that (a) such information or documents were  contained and accessible in the virtual data room hosted by Seller in connection with the Transactions as of  11:59 p.m. Eastern Time on November 3, 2022 and (b) Purchaser and its designated Representatives have  had unrestricted access to such documents in the virtual data room since such time. No summary of this  Agreement prepared by or on behalf of any party shall affect the meaning or interpretation of this  Agreement. Time periods based on a number of days within or following which any payment is to be made  or act is to be done shall be calculated by excluding the day on which the period commences and including  





 






  57  the day on which the period ends and, if applicable, by extending the period to the next Business Day  following if the last day of the period is not a Business Day.  Section 9.6. No Strict Construction. Seller, on the one hand, and Purchaser, on the other hand,  participated jointly in the negotiation and drafting of this Agreement, and, in the event an ambiguity or  question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by Seller and  Purchaser, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of  the authorship of any provision of this Agreement. Without limitation as to the foregoing, no rule of strict  construction construing ambiguities against the draftsperson shall be applied against any Person with  respect to this Agreement.  Section 9.7. Entire Agreement; Assignment. This Agreement, the Ancillary Documents and the  Confidential Disclosure Agreement constitute the entire agreement and supersede all other prior agreements  and understandings, both written and oral, between the parties with respect to the subject matter hereof and  thereof. Neither Party to this Agreement may assign any of its rights or delegate any of its obligations under  this Agreement without the prior written consent of the other Party; provided, however, that Purchaser may  assign its rights or delegate its obligations, in whole or in part, without such consent to (a) any Person that  succeeds to all or substantially all of its assets or business related to this Agreement (whether by sale,  merger, operation of law or otherwise), (b) an Affiliate of Purchaser or (c) any purchaser, transferee, or  assignee of any of the Acquired Assets, in each case, subject to the binding agreement of such transferee to  be subject to Purchaser’s obligations under this Agreement. Any purported assignment in violation of this  Section 9.7 shall be null and void.  Section 9.8. Governing Law; Submission of Jurisdiction; Waiver of Jury Trial. This Agreement  shall be governed by and construed in accordance with the Laws of the State of Delaware. Any and all  claims, controversies and causes of action arising out of or relating to this Agreement, whether sounding in  contract, tort or statute, shall be governed by the Laws of the State of Delaware, including its statutes of  limitations, without giving effect to any conflict-of-laws or other rule that would result in the application  of the Laws of a different jurisdiction. The parties agree that the exclusive jurisdiction and venue for any  litigation arising out of this Agreement shall be in the Bankruptcy Court; provided, however, that if at the  time of commencement of any such litigation, there is no longer a pending Chapter 11 Case or the  Bankruptcy Court does not have jurisdiction or declines to exercise jurisdiction, the exclusive jurisdiction  and venue for any litigation arising out of or relating to this Agreement, provided jurisdiction may be  obtained under applicable Law, shall be in the state or federal courts in the State of Delaware, and each  party hereby waives any objections they may have with respect thereto (including any objections based  upon forum non conveniens). Each party hereby consents to service of process in the manner and at the  address set forth in Section 9.4. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES  ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING  OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED  HEREBY.  Section 9.9. Expenses. Except as otherwise provided herein, whether or not the Transactions  are consummated, all costs and expenses incurred in connection with this Agreement and the Transactions  shall be paid by the party incurring such expenses.  Section 9.10. Amendment. This Agreement may not be amended except by an instrument in  writing signed on behalf of each party.  Section 9.11. Waiver. At any time prior to the Closing, the parties may (a) extend the time for  the performance of any of the obligations or other acts of the other party, (b) waive any inaccuracies in the  representations and warranties contained herein or in any document delivered pursuant hereto and (c) waive  





 






  58  compliance with any of the agreements or conditions contained herein. Any agreement on the part of a party  to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf  of such party.  Section 9.12. Counterparts; Effectiveness. This Agreement may be executed in multiple  counterparts, each of which shall be deemed an original, but all of which together shall constitute one and  the same instrument. Counterparts may be delivered via electronic mail (including pdf or any electronic  signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other  transmission method and any counterpart so delivered shall be deemed to have been duly and validly  delivered and be valid and effective for all purposes.   Section 9.13. Severability; Validity; Parties in Interest. If any provision of this Agreement or the  application thereof to any Person or circumstance is held invalid or unenforceable, the remainder of this  Agreement, and the application of such provision to other Persons or circumstances, shall not be affected  thereby, and to such end, the provisions of this Agreement are agreed to be severable. Except as expressly  provided in this Agreement and without limiting the rights of the Indemnified Parties hereunder, nothing in  this Agreement, express or implied, is intended to confer upon any Person not a party to this Agreement  any rights or remedies of any nature whatsoever under or by reason of this Agreement.  Section 9.14. Specific Performance. The parties agree that irreparable injury will occur in the  event that any of the provisions of this Agreement is not performed in accordance with its specific terms or  is otherwise breached. Each party shall be entitled to seek an injunction or injunctions to prevent or remedy  any breaches or threatened breaches of this Agreement by any other party, to a decree or order of specific  performance specifically enforcing the terms and provisions of this Agreement and to any further equitable  relief.  Section 9.15. Time of the Essence. Time shall be of the essence of this Agreement.  Section 9.16. Remedies Cumulative. Except as herein expressly set forth, no remedy conferred  upon a party by this Agreement is intended to be exclusive of any other remedy herein or by Law provided  or permitted, but each shall be cumulative and shall be in addition to every other remedy given herein or  now or hereafter existing at Law, in equity or by statute.  Section 9.17. Conflicts; Deal Communications.   (a) It is acknowledged by each of the parties that Seller has retained Cooley LLP  (“Cooley”) to act as its counsel in connection with the negotiation, documentation and consummation of  this Agreement and the Transactions (the “Current Representation”), and that Purchaser does not have the  status of a client of Cooley for conflict of interest or any other purposes as a result thereof. Purchaser hereby  agrees that after the Closing, Cooley may represent Seller or any of its Affiliates or any of their respective  Representatives (any such Person, a “Permitted Seller Person”) in any matter involving or arising from the  Current Representation, including any interpretation or application of this Agreement or any Ancillary  Document, and including for the avoidance of doubt any Proceeding between or among Purchaser or any  of its Affiliates, and any Permitted Seller Person, even though the interests of such Permitted Seller Person  may be directly adverse to Purchaser or any of its Affiliates, and even though Cooley may have represented  Purchaser in a substantially related matter, or may be representing Purchaser in ongoing matters. Purchaser  hereby waives and agrees not to assert (i) any claim that Cooley has a conflict of interest in any  representation described in this Section 9.17(a) or (ii) any confidentiality obligation with respect to any  communication between Cooley and any Permitted Seller Person occurring during the Current  Representation.  





 






  59  (b) Purchaser hereby agrees that all communications (whether before, at or after the  Closing) between Cooley, any Permitted Seller Person, or any current or former director, officer or  employee of Seller to the extent related to the Current Representation or any dispute arising under this  Agreement (the “Deal Communications”), whether or not attorney-client privileged, and all rights to any  other evidentiary privilege to the extent related thereto, and the protections afforded to information relating  to representation of a client under applicable rules of professional conduct that may apply to such Deal  Communications, shall be retained, owned, and controlled collectively by the Permitted Seller Persons and  shall not pass to or be claimed by Purchaser or any of its Affiliates or their respective Representatives. To  the extent that files or other materials maintained by Cooley constitute Deal Communications, only the  Permitted Seller Persons shall hold property rights in such communications and Cooley shall have no duty  to reveal or disclose any such files or other materials or any Deal Communications by reason of any  attorney-client relationship between Cooley and any Permitted Seller Persons.  (c) Notwithstanding the foregoing, in the event that a dispute arises between  Purchaser, on the one hand, and a third party other than Seller, on the other hand, Purchaser may assert the  attorney-client privilege to prevent the disclosure of the Deal Communications to such third party; provided,  however, that Purchaser may not waive such privilege without the prior written consent of Seller (which  such consent shall not be unreasonably withheld, conditioned or delayed). In the event that Purchaser or  any of its respective directors, officers, employees or other representatives is legally required by an Order  or otherwise to access or obtain a copy of all or a portion of the Deal Communications, Purchaser shall, to  the extent legally permissible, (x) reasonably promptly notify Seller in writing, (y) agree that the Seller may  seek a protective order and (z) use, at the Seller’s sole cost and expense, commercially reasonable efforts  to assist therewith.  ARTICLE X  DEFINITIONS  As used herein, the terms below shall have the following meanings:  “AAR Cost Calculation” is defined in Section 1.6(a)(ii)(F).  “AAR Costs” is defined in Section 1.6(a)(ii)(E).  “Acquired Assets” is defined in Section 1.1.  “Acquisition” is defined in the Recitals.  “Action” means any claim, hearing, charge, action, suit, arbitration, litigation, mediation,  grievance, audit, examination, inquiry, proceeding or investigation by or before any Governmental Entity  or arbitrator.  “Actual Costs” is defined in Section 1.6(a)(ii)(G).  “Additional Approval Requirements” means any and all clinical trials (including extensions, sub- analyses or cohorts thereof), non-clinical studies, comparability studies or activities performed in  satisfaction of post-marketing approval requirements, including all testing, activities (including CMC),  conditions and commitments in connection therewith but excluding the Observational Study and the P3  Study.   “Additional Assigned Contracts” is defined in Section 1.5(e).  





 






  60  “Affiliate” of a specified Person means a Person who, directly or indirectly through one or more  intermediaries, controls, is controlled by, or is under common control with, such specified Person. For  avoidance of doubt, Purchaser and Seller will not be deemed Affiliates of one another notwithstanding the  possession by Purchaser (whether or not exercised) of any rights with respect to Seller or otherwise as a  result of the Transactions.  “Agreement” has the meaning set forth in the Preamble and shall include the Exhibits and  Schedules annexed hereto or referred to herein.  “Allocation” is defined in Section 1.8.  “Alternative Stalking Horse Transaction” is defined in Section 5.8.  “Alternative Transaction” means (a) a Restructuring Transaction or (b) any sale, assignment, lease,  transfer, license, relinquishment of rights to or other disposition of or settlement of claims with respect to  all or any material portion of the Acquired Assets to or with any Person (or group of Persons), whether in  one transaction or a series of transactions, in each case other than to Purchaser.  “Ancillary Documents” means the Bill of Sale & Assignment and Assumption Agreement,  Intellectual Property Assignment Agreements, Escrow Agreement, Transition Services Agreement and  each other agreement, document or instrument (other than this Agreement) executed and delivered by the  parties in connection with the consummation of the Transactions.  “Anti-Corruption Law” means any Law related to combating bribery and corruption, including the  OECD Convention on Combating Bribery of Foreign Officials in International Business Transactions, the  UN Convention Against Corruption and any implementing legislation promulgated pursuant to such  Conventions, the Foreign Corrupt Practices Act of 1977 and the U.K. Bribery Act 2010.  “Antitrust Laws” means any applicable supranational, national, federal, state, county, local or  foreign antitrust, competition or trade regulation Laws that are designed or intended to prohibit, restrict or  regulate actions having the purpose or effect of monopolization or restraint of trade or lessening competition  through merger or acquisition, including the HSR Act, the Sherman Act, the Clayton Act and the Federal  Trade Commission Act, in each case, as amended, and other similar antitrust, competition or trade  regulation Laws of any jurisdiction other than the United States.  “Assigned Contract Cure Costs Cap” means, with respect to each Assigned Contract, the amount  under the column “Cure Costs” set forth opposite such Assigned Contract on Schedule 1.5(a).  “Assigned Contracts” is defined in Section 1.1(c).  “Assumed Liabilities” is defined in Section 1.3.  “Auction” is defined in the Bidding Procedures.  “Avoidance Actions” is defined in Section 1.1(m).  “Backup Bidder” is defined in the Bidding Procedures.  “Bankruptcy Code” is defined in the Recitals.  “Bankruptcy Court” is defined in the Recitals.  





 






  61  “Benefit Plan” means a plan, program, agreement or other arrangement providing for employment,  compensation, retirement, deferred compensation, severance, separation, relocation, repatriation,  expatriation, termination pay, performance awards, bonus, incentive, stock option, stock purchase, stock  bonus, phantom stock, stock appreciation right, supplemental retirement or other pension or welfare  benefits, whether written or unwritten, including each “employee benefit plan” within the meaning of  Section 3(3) of ERISA, (a) which is or has been sponsored, maintained, contributed to, or required to be  contributed to by Seller or any of its ERISA Affiliates for the benefit of any employee or former employee  of Seller or (b) with respect to which Seller or any of its ERISA Affiliates would reasonably be expected  to have any Liability.  “Bidding Procedures” means the bidding procedures in the form attached to the Bidding Procedures  Order in Exhibit C, with any changes that Purchaser may approve in advance in its sole and absolute  discretion, to be approved by the Bankruptcy Court pursuant to the Bidding Procedures Order.  “Bidding Procedures Order” means the Order of the Bankruptcy Court, pursuant to Sections 105(a),  363 and 365 of the Bankruptcy Code, that has not been stayed, vacated or stayed pending appeal: (a)  authorizing and scheduling the Auction, (b) approving procedures for the submission of Qualified Bids, (c)  in the case of any subsequent Qualified Bids, approving the initial Overbid of at least $1,000,000 and further  incremental Overbids of at least $500,000, (d) approving the Break-Up Fee and the Expense  Reimbursement Amount, (e) scheduling a hearing to consider approval of such sale, and (f) approving the  form and manner of notice of the Auction procedures and Sale Hearing, which Order shall be in the form  attached hereto as Exhibit C, with any changes that Purchaser may approve in advance in its sole and  absolute discretion.  “Bill of Sale & Assignment and Assumption Agreement” is defined in Section 2.2(a)(i).  “BIS” is defined in Section 3.14(e).  “BLA” means a Biologics License Application submitted to the FDA pursuant to 21 C.F.R. Part  601.2 (as amended from time to time), or the equivalent application or filing submitted to any equivalent  agency or Governmental Entity outside the United States (including any supra-national agency such as the  EMA), and all amendments, supplements, variations and extensions which may be submitted thereto,  including all documents, data and other information concerning the applicable biologic which are necessary  for FDA approval to market such product in the United States or such country or jurisdiction outside of the  United States.  “Bleeding Indication” means the indication for the Product for the reversal of the antiplatelet effects  of ticagrelor in patients with uncontrolled major or life-threatening bleeding.  “Books and Records” means all documents of, or otherwise in the possession, custody or control  of, or used by, Seller that are Primarily Related to the Business, the Acquired Assets or the Assumed  Liabilities, including all files, instruments, papers, books, microfilms, photographs, letters, budgets,  forecasts, ledgers, journals, title policies, lists of past, present or prospective customers, supplier lists,  regulatory filings, technical documentation, documentation containing Know-How, user documentation  (installation guides, user manuals, training materials, release notes, working papers, etc.), data, reports  (including environmental reports and assessments), plans, mailing lists, price lists, marketing information  and procedures, advertising and promotional materials, equipment records, warranty information, architects  agreements, construction contracts, drawings, plans and specifications, records of operations, standard  forms of documents, copies of Tax Returns and copies of related books, records and workpapers related to  Taxes, manuals of operations or business procedures and other similar procedures (including all discs, tapes  and other media-storage data containing such information), in each case whether or not in electronic form.   





 






  62  “Break-Up Fee” is defined in Section 8.2(b).    “Business” is defined in the Recitals.  “Business Assets” is defined in Section 5.5.  “Business Day” means any day other than a Saturday, a Sunday or a day on which banks in New  York City, New York, or Parma, Italy, are authorized or obligated by Law to close.   “Business Employee” is defined in Section 3.16(a).  “Cash” means all cash and cash equivalents, including checks, commercial paper, treasury bills,  certificates of deposit and marketable securities, and any bank accounts and lockbox arrangements of Seller  as of the Closing.  “Chapter 11 Case” is defined in the Recitals.  “Claim Notice” is defined in Section 7.2(b).  “Closing” is defined in Section 2.1.  “Closing Consideration” is defined in Section 1.6(a)(i).  “Closing Date” is defined in Section 2.1.  “Closing Inventory Schedule” means a schedule setting forth a detailed list of all Inventory as of  the Closing Date, including the quantity, batch, expiry dating, book value, location (including whether the  item is being held on a consignment basis), original shelf-life and remaining shelf-life.  “Code” means the Internal Revenue Code of 1986, as amended.  “Competing Business” is defined in Section 5.17(a).  “Compound” means the anti-ticagrelor antibody fragment product known as bentracimab (also  known as PB2452 or MEDI2452).  “Confidential Disclosure Agreement” means the Confidential Disclosure Agreement, between  Seller and Chiesi USA, Inc., a Delaware corporation and wholly owned Subsidiary of Purchaser, dated  August 3, 2020, as amended.  “Confidential Information” is defined in Section 5.12(c).  “Contract” means any agreement, contract, subcontract, lease, sublease, instrument, permit,  concession, franchise, arrangement, understanding, note, option, bond, mortgage, indenture, trust  document, loan or credit agreement, license, sublicense, insurance policy or other legally binding  commitment or instrument.  “Controlling Party” is defined in Section 7.2(b).  “Cooley” is defined in Section 9.17(a).  





 






  63  “Copyrights” means all rights associated with works of authorship, including protectable subject  matter under U.S. copyright Law (or foreign equivalent), copyrights and any other rights in works of  authorship (including Software) and, exclusive exploitation rights, moral rights, any related rights of  authors and any other rights in copyrightable works (including Software), copyright registrations, or any  application therefor and all extensions, restorations, reversions and renewals of any of the foregoing.  “Cost Concern Notice” is defined in Section 1.6(a)(ii)(G).  “Cure Costs” is defined in Section 1.5(a).  “Cure Costs Cap” means an aggregate amount equal to the sum of the Assigned Contract Cure  Costs Cap for each Assigned Contract.   “Cure Costs Deduction” means the aggregate amount of all Cure Costs in excess of the Cure Costs  Cap; provided, however, that in determining the Cure Costs Deduction in no event will the Cure Costs Cap  with respect to the Assigned Contracts set forth on Schedule 6.3(i) be deemed to apply to any other Assigned  Contract.  “Current Representation” is defined in Section 9.17(a).  “Deductible” is defined in Section 7.3(a).  “Deposit Funds” is defined in Section 1.6(b).  “Designated Parties” is defined in Section 1.1(m).  “Designation Deadline” is defined in Section 1.5(e).  “Determination Date” is defined in Section 7.2(c).  “Diligent Efforts” means using such efforts and resources, in the aggregate, that a pharmaceutical  company similarly situated to Purchaser would reasonably devote to a product at a similar stage of  development and with similar market or commercial potential and taking into consideration the individual  characteristics of Purchaser and the commercialization practices for pharmaceutical products at a similar  stage in product lifecycle by such similarly situated pharmaceutical companies. Such efforts may take into  account, without limitation, the safety and efficacy of the product, the risks inherent in the  commercialization of the product, its competitiveness compared to alternative third-party products, the  proprietary position of the product (including scope and duration of relevant patents and length of marketing  exclusivity), the scope of marketing approval, the regulatory status of the product, whether the product is  subject to a clinical hold, recall or market withdrawal, intellectual property rights with respect to the  product, then-prevailing economic and market conditions, the strategic value of the product to such  company, the anticipated profitability of the product and the therapeutic use of the product.   “DIP Budget” means the budget for the DIP Facility in the form set forth in Exhibit E.  “DIP Facility” means the Seller’s debtor-in-possession financing facility, entered into connection  with the Chapter 11 Case, as the same may be amended, restated, supplemented or refinanced from time to  time in accordance with the terms of this Agreement, including any orders approving or authorizing Seller’s  entry into and performance under such facility.  “DIP Lender” means the lender under the DIP Loan Documents.  





 






  64  “DIP Loan Documents” means the definitive documentation for the DIP Facility, as the same may  be amended, restated, supplemented or refinanced from time to time in accordance with the terms of this  Agreement, in the form set forth in Exhibit E.  “Documented AAR Costs” is defined in Section 1.6(a)(ii).  “DOJ” is defined in Section 5.3(b).  “DPA” is defined in Section 3.23.  “Effect” means any change, effect, development, circumstance, condition, fact, state of facts, event  or occurrence.  “EMA” means the European Medicines Agency.  “Encumbrance” means any lien, pledge, hypothecation, mortgage, deed of trust, security interest,  encumbrance, covenant, charge, claim, option, right of first refusal, easement, right of way, encroachment,  occupancy right, preemptive right, community property interest or restriction of any nature, whether arising  prior to or subsequent to the commencement of the Chapter 11 Case, and whether voluntarily incurred or  arising by operation of Law.  “Environmental Laws” means any and all applicable Laws which (a) regulate or relate to the  protection or clean-up of the environment, the use, treatment, storage, transportation, handling, disposal or  release of Hazardous Substances, the preservation or protection of waterways, groundwater, drinking water,  air, wildlife, plants or other natural resources, or the health and safety of Persons or property, including  protection of the health and safety of employees or (b) impose Liability or responsibility with respect to  any of the foregoing, including the Comprehensive Environmental Response, Compensation and Liability  Act (42 U.S.C. § 9601 et seq.), or any other Law of similar effect.  “ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the  regulations promulgated and rulings issued thereunder.  “ERISA Affiliate” means, with respect to any entity, trade or business, any other entity, trade or  business that is a member of a group described in Section 414(b), (c), (m) or (o) of the Code or Section  4001(b)(1) of ERISA that includes the first entity, trade or business, or that is a member of the same  “controlled group” as the first entity, trade or business pursuant to Section 4001(a)(14) of ERISA.  “Escrow Agent” is defined in Section 1.6(b).  “Escrow Agreement” is defined in Section 1.6(b).  “Estimated Costs” is defined in Section 1.6(a)(ii)(G).  “Excess Setoff Costs” is defined in Section 1.6(a)(ii)(G).  “Excluded Assets” is defined in Section 1.2.  “Excluded Liabilities” is defined in Section 1.4.  “Excluded Taxes” means any (a) Taxes imposed on or payable by Seller or its Affiliates for any  taxable period; (b) Taxes imposed on or with respect to the Acquired Assets, the Assumed Liabilities or the  Business for any Pre-Closing Tax Period; (c) Taxes imposed on or with respect to the Excluded Assets or  





 






  65  the Excluded Liabilities for any taxable period, (d) any Transfer Taxes for which Seller is responsible  pursuant to Section 9.1(a), (e) Liability of Purchaser or any of its Affiliates for any Taxes as a transferee or  successor to Seller or its Affiliates and (f) Periodic Taxes for which Seller is responsible pursuant to Section  9.1(b). For purposes of this Agreement, in the case of any Straddle Period, (i) Periodic Taxes shall be  allocated between the Pre-Closing Tax Period and the Post-Closing Tax Period in the manner set forth in  Section 9.1(b) and (ii) Taxes (other than Periodic Taxes) relating to the Acquired Assets, the Assumed  Liabilities or the Business for the Pre-Closing Tax Period shall be computed as if such taxable period ended  as of the closing of business on the Closing Date.  “Expense Reimbursement Amount” means the dollar amount equal to the lesser of (a) $750,000  and (b) the aggregate amount of all reasonable and documented out of pocket costs, expenses and fees  incurred by Purchaser or its Affiliates, in connection with evaluating, negotiating, documenting and  performing the Transactions and the Ancillary Documents, including fees, costs and expenses of any  professionals (including financial advisors, outside legal counsel, accountants, experts and consultants)  retained by Purchaser or its Affiliates in connection with or related to the authorization, preparation,  investigation, negotiation, execution and performance of this Agreement, the Transactions, including the  Chapter 11 Case and other judicial and regulatory proceedings related to such transactions, which amount  shall constitute a superpriority administrative expense priority claim under Section 503(b)(1)(A) and  Section 507(a)(2) of the Bankruptcy Code and shall be payable as set forth in Section 8.2(c), subject only  to the superpriority claims granted in favor of the DIP Lender in an amount not to exceed the amount of the  DIP Loan Commitment (as defined in the interim order authorizing Seller to obtain postpetition financing  and related relief [Chapter 11 Case Docket No. 57] and in any final order thereon).  “Exploit” and “Exploitation” means to make, manufacture, import, export, use, sell, offer for sale,  research, develop, conduct regulatory activities, commercialize, register, hold or keep (whether for disposal  or otherwise), transport, distribute, promote, market, or otherwise dispose of, or have done any or all of the  foregoing.   “Export Controls” means all applicable export and reexport control Laws and regulations, including  the Export Administration Regulations maintained by the U.S. Department of Commerce, trade and  economic sanctions maintained by OFAC and the International Traffic in Arms Regulations maintained by  the U.S. Department of State and any applicable anti-boycott compliance regulations.  “FDA” means the United States Food and Drug Administration.  “FDA Accelerated Approval” means an accelerated approval granted by the FDA on the basis of  an application made pursuant to forth in 21 C.F.R. § 601 Subpart E or any successor program.   “FDA Accelerated Approval Milestone” is defined in Section 1.6(a)(ii)(A).  “FDA Accelerated Approval Milestone Payment” is defined in Section 1.6(a)(ii)(A)(1).  “FDA Full Approval” means unconditional approval granted by the FDA that is not subject to any  specific obligations under 21 C.F.R. § 601 Subpart E. The Unconditional Regulatory Approval shall  include, for example, a standard marketing authorization from the FDA.  “FDA Full Approval Milestone” is defined in Section 1.6(a)(ii)(A).  “FDA Full Approval Milestone Payment” is defined in Section 1.6(a)(ii)(A)(3) .  “FDCA” means the U.S. Food, Drug and Cosmetic Act of 1938, as amended.  





 






  66  “Final Documented AAR Costs” is defined in Section 1.6(a)(ii)(G).  “Financial Officers” shall mean, with respect to Seller, the Chief Financial Officer of Seller, and  with respect to Purchaser, the Chief Financial Officer of Purchaser, or their respective designees with  equivalent decision-making authority with respect to matters under this Agreement.  “Financial Statements” is defined in Section 3.5(a).  “Fraud” means an actual and intentional fraud committed by any Person in the making of the  representations and warranties set forth in ARTICLE III or ARTICLE IV of this Agreement or in any  certificate or other instrument delivered in connection with this Agreement.  “FTC” is defined in Section 5.3(b).  “Fundamental Reps” is defined in Section 7.1(a).  “GAAP” means United States generally accepted accounting principles.  “Good Clinical Practice” means, with respect to Seller, standards for clinical trials for  pharmaceuticals (including all applicable requirements relating to protection of human subjects), as set  forth in the FDCA and applicable regulations promulgated thereunder (including, for example, 21 C.F.R.  Parts 50, 54, and 56), as amended from time to time, and such standards of good clinical practice (including  all applicable requirements relating to protection of human subjects) as are required by other organizations  and Governmental Entities in any other countries, including applicable regulations or guidelines from the  International Conference on Harmonization of Technical Requirements for Registration of Pharmaceuticals  for Human Use, in which Products are sold or intended to be sold, to the extent such standards are not less  stringent than in the United States.  “Good Laboratory Practice” means, with respect to Seller, standards for pharmaceutical  laboratories, as set forth in the FDCA and applicable regulations promulgated thereunder, as amended from  time to time, and such standards of good laboratory practice as are required by other organizations and  Governmental Entities in any other countries, including applicable regulations or guidelines from the  International Conference on Harmonization of Technical Requirements for Registration of Pharmaceuticals  for Human Use in which the Products are sold or intended to be sold, to the extent such standards are not  less stringent than in the United States.  “Good Manufacturing Practice” means, with respect to Seller, standards for the manufacture,  processing, packaging, testing, transportation, handling and holding of drug products, as set forth in the  FDCA and applicable regulations promulgated thereunder, as amended from time to time, and such  standards of good manufacturing practice as are required by other organizations and Governmental Entities  in any other countries, including applicable regulations or guidelines from the International Conference on  Harmonization of Technical Requirements for Registration of Pharmaceuticals for Human Use in which  the Products are sold or intended to be sold, to the extent such standards are not less stringent than in the  United States.  “Governmental Entity” means (a) any supranational, national, federal, state, county, municipal,  local, or foreign government or any entity exercising executive, legislative, judicial, regulatory, taxing, or  administrative functions of or pertaining to government, (b) any public international governmental  organization or (c) any agency, division, bureau, department, commission, board, arbitral or other tribunal,  branch or other political subdivision of any government, entity or organization described in the foregoing  clause (a) or (b) of this definition (including patent and trademark offices and self-regulatory organizations).  





 






  67  “Hazardous Substance” means any pollutant, chemical, substance and any toxic, infectious,  carcinogenic, reactive, corrosive, ignitable or flammable chemical, chemical compound, hazardous  substance, material or waste, whether solid, liquid or gas, that is subject to regulation, control or remediation  under any Environmental Laws, including any quantity of petroleum product or byproduct, solvent,  flammable or explosive material, radioactive material, asbestos, lead paint, polychlorinated biphenyls (or  PCBs), dioxins, dibenzofurans, heavy metals and radon gas.  “Health Care Submissions” is defined in Section 3.18(a).  “Health Laws” means any Law of any Governmental Entity (including multi-country  organizations) the purpose of which is to ensure the safety, efficacy and quality of medicines, biological  products or pharmaceuticals by regulating the research, development, manufacturing and distribution of  these products, including Laws relating to Good Laboratory Practice, Good Clinical Practice,  investigational use, product marketing authorization, manufacturing facilities compliance, registration and  approval, Good Manufacturing Practice, manufacturer, sponsor or applicant registration or licensing,  labeling, advertising, promotional practices, safety surveillance, record keeping and filing of required  reports and their respective counterparts promulgated by Regulatory Authorities in countries outside the  United States and shall also include, without limitation (a) the FDCA and the regulations promulgated and  guidance issued thereunder, (b) the Public Health Service Act, and the regulations promulgated and  guidance issued thereunder, (c) all federal and state fraud and abuse Laws, including the Federal Anti- Kickback Statute, the civil False Claims Act, the administrative False Claims Law, the Anti-Inducement  Law, the exclusion Laws, and the regulations promulgated pursuant to such statutes, (d) the Health  Insurance Portability and Accountability Act of 1996, the regulations promulgated thereunder and  comparable state Laws, (e) the Controlled Substances Act, (f) Titles XVIII and XIX of the Social Security  Act and the regulations promulgated thereunder, (g) the Clinical Laboratories Improvement Amendments  and (h) all applicable Laws, rules and regulations, ordinances, judgments, decrees, orders, writs and  injunctions administered by Regulatory Authorities, each of clauses (a) through (h) as may be amended  from time to time.  “HIPAA” means the Health Insurance Portability and Accountability Act of 1996, as amended and  supplemented by the Health Information Technology for Clinical Health Act of the American Recovery  and Reinvestment Act of 2009.  “Import Restrictions” means all applicable U.S. and foreign import Laws, including Title 19 of the  U.S. Code and Title 19 of the Code of Federal Regulations.  “IND” means an Investigational New Drug Application submitted to the FDA pursuant to 21 C.F.R.  Part 312 (as amended from time to time) with respect to the Products, or the equivalent application or filing  submitted to any equivalent agency or Governmental Entity outside the United States of America (including  any supra-national agency such as the EMA), and all supplements, amendments, variations, extensions and  renewals thereof that may be submitted with respect to the foregoing.  “Indebtedness” means, with respect to any Person, (a) all obligations for borrowed money, (b) all  obligations evidenced by bonds, debentures, notes or similar instruments, (c) all Indebtedness of others  secured by any Encumbrance on owned or acquired property of the reference Person, whether or not the  Indebtedness secured thereby has been assumed, (d) all guarantees (or any other arrangement having the  economic effect of a guarantee) of Indebtedness of others, (e) all capital lease obligations and all synthetic  lease obligations, (f) all obligations, contingent or otherwise, of such Person as an account party in respect  of financial guaranties, letters of credit, letters of guaranty, surety bonds and other similar instruments, (g)  all securitization transactions, (h) all obligations representing the deferred and unpaid purchase price of  property (other than trade payables incurred in the Ordinary Course of Business), (i) all obligations,  





 






  68  contingent or otherwise, in respect of bankers’ acceptances and (j) net cash payment obligations of such  Person under swaps, options, derivatives and other hedging agreements or arrangements that will be payable  upon termination thereof (assuming they were terminated on the date of determination).  “Indemnification Certificate” is defined in Section 7.2(a).  “Indemnified Party” is defined in Section 7.2(a).  “Indemnifying Party” is defined in Section 7.2(a).  “Independent Accountant” means a national or international accounting firm, independent of  Purchaser or Seller, selected by Purchaser and reasonably acceptable to Seller (which may be a different  firm with respect to Sections 1.6 and 1.8).  “Information Privacy and Security Laws” means any applicable Laws issued by a Governmental  Entity and all guidance issued by any Governmental Entity thereunder, relating to: (a) the privacy,  protection, or security of Protected Information, including as relevant to the collection, storage, processing,  transfer, sharing and destruction of Protected Information or (b) requirements for websites and mobile  applications, online behavioral advertising, call or electronic monitoring or recording, or any outbound  communications, including outbound calling and text messaging, telemarketing and email marketing.  Without limiting the foregoing, “Information Privacy and Security Laws” includes the Federal Trade  Commission Act, the Telephone Consumer Protection Act, the Telemarketing and Consumer Fraud and  Abuse Prevention Act, the Controlling the Assault of Non-Solicited Pornography and Marketing Act of  2003, the Children’s Online Privacy Protection Act, the Computer Fraud and Abuse Act, the Electronic  Communications Privacy Act, the Fair Credit Reporting Act, the Fair and Accurate Credit Reporting Act,  HIPAA, the Gramm-Leach-Bliley Act, state data security Laws, state social security number protection  Laws, state data breach notification Laws, state consumer protection Laws, Directive 95/46/EC of the  European Parliament and of the Council of 24 October 1995 and Directive 2002/58/EC of the European  Parliament and of the Council of 12 July 2002 as amended (and any European Union member states’ Laws  and regulations implementing them), the European General Data Protection Regulation, the Canadian  Personal Information Protection and Electronic Documents Act, India’s Information Technology Act,  Japan’s Act on the Protection of Personal Information, Hong Kong’s Personal Data (Privacy) Ordinance,  and Australia’s Privacy Amendment (Private Sector) Act 2000 as amended by the Privacy Amendment  (Enhancing Privacy Protection) Act 2012, and other applicable data protection Laws of the jurisdictions in  which Business is operated.  “Intellectual Property” means any and all rights, which may exist or be created under the Law  anywhere in the world, arising under or associated with: (a) Patents; (b) Trademarks; (c) inventions and  designs; (d) Know-How and trade secrets; (e) Copyrights; (f) all industrial designs and any registrations  and applications therefor; (g) Internet Properties; (h) all other similar or equivalent intellectual property or  proprietary rights anywhere in the world, and (i) rights in or relating to applications for, registrations of,  rights of priority in, and divisions, continuations, continuations-in-part, reissuances, renewals, extensions,  restorations and reversions of the any of the foregoing (as applicable) in clauses (a) through (h) above.  “Intellectual Property Assignment Agreements” is defined in Section 2.2(a)(iii).  “Internet Properties” means any and all IP, internet or global computing network addresses, sites  and locations, including domain names, top-level domains and country code top-level domains, sub- domains, uniform resource locators and other similar names and locators and telephone numbers, and all  goodwill associated with, and all rights related to or otherwise associated with the foregoing.  





 






  69  “Inventory” is defined in Section 1.1(d).  “IP Contracts” is defined in Section 3.10(h).  “Key Employee Group” is defined in that separate confidential communication from Purchaser to  Seller, which communication sets forth the Offer Employees that are Key Employees and the composition  of the Key Employee Group that is required by Purchaser in connection with the Transactions (the “Key  Employee Notice”).    “Know-How” means any non-public, proprietary or other information, whether tangible or  intangible and regardless of the form or medium, including trade secrets, knowledge, experience, know- how, technology, information, and data, including formulas and formulations, processes, practices,  techniques, unpatented inventions, discoveries, ideas, developments, test procedures, results, concepts,  methods, methodologies, protocols, designs, improvements, models, specifications, materials,  compositions of matter of any type of kind, assays, screens, Software, algorithms, databases, database  rights, chemistry, manufacturing and control (CMC) information and data, lab notebooks, stability,  technology and test data and results (including pharmacological, biological, chemical, biochemical,  toxicological, pre-clinical and clinical), analytical and quality control information, data, results and  descriptions, studies and procedures, development, manufacturing and commercialization costs,  information contained in submissions to and information from Regulatory Authorities and other reports,  together with all documents and files embodying the foregoing.   “Knowledge of Seller” means (a) the actual and constructive knowledge of Sue Arnold, Glen  Burkhardt, Jeff Erickson and Lauren Richardson after due inquiry into the facts or circumstances supporting  any representation, warranty or statement qualified by such term or similar terms and (b) all such knowledge  as would reasonably be obtained by any executive officer of Seller, for the time period of his tenure, in the  discharge of such officer’s duties.   “Law” means any law (including common law), statute, constitution, requirement, code, rule,  regulation, order, ordinance, treaty, judgment or decree or other pronouncement of any Governmental  Entity.  “Leases” is defined in Section 3.12(b).  “Liability” means any liability, debt, guarantee, claim, demand, commitment or obligation (whether  direct or indirect, absolute or contingent, accrued or unaccrued, liquidated or unliquidated, or due or to  become due) of every kind and description, including all costs and expenses related thereto.   “Loss” means any loss, claim, demand, Order, Action, damage, penalty, fine, settlement payment,  Liability, Tax, Encumbrance, fee, cost (including any opportunity or replacement cost) or expense,  including costs and expenses of investigation and reasonable attorneys’ fees and expenses, as well as the  costs and expenses (including reasonable attorneys’ fees and expenses) in connection with asserting,  maintaining or enforcing any claim for indemnification or any Action to enforce an Indemnified Party’s  rights hereunder, in each case whether involving a Third Party Claim or a claim solely between the parties  (or between any party and any Indemnified Party); provided, however, that Losses shall not include punitive  damages unless awarded or otherwise payable to a third party.  “MAA” means an application for the authorization to market a compound or product in any country  or group of countries, as defined in the applicable Law and filed with the Regulatory Authority of such  given country or group of countries, including a BLA, and all additions, amendments, supplements,  extensions and modifications thereto.  





 






  70  “Malvern Lease” means that certain Lease Agreement, by and between Seller and Liberty Property  Limited Partnership, dated January 15, 2010, as amended by that certain First Amendment, dated December  18, 2014, that certain Second Amendment, dated February 9, 2018 and that certain Third Amendment, by  and between Seller and WPT Land 2 LP, dated October 6, 2022.  “Material Adverse Effect” means (a) any Effect that, individually or in the aggregate, would  reasonably be expected to materially impair or materially delay the ability of Seller to timely consummate  the Transactions or to perform its obligations hereunder or (b) any Effect that, individually or in the  aggregate, results in a material adverse effect on the assets, business, condition (financial or otherwise) or  results of operations of the Business or the Acquired Assets or the Assumed Liabilities; provided, however,  that the fact that the Chapter 11 Case has been filed and that, accordingly, Seller has been conducting the  Business in the Ordinary Course of Business as the same is being conducted as of the date of this Agreement  in the Chapter 11 Case, shall not, in and of itself, be deemed to be a Material Adverse Effect for purposes  of clause (b) of this definition; provided, however, that no Effects resulting or arising from the following  shall be deemed to constitute a Material Adverse Effect or shall be taken into account when determining  whether a Material Adverse Effect exists or has occurred: (i) changes after the date hereof in general  economic, financial or securities markets or geopolitical conditions, (ii) general changes or developments  after the date hereof in regulatory or macroeconomic conditions or the industries and markets in which the  Business operates, (iii) the announcement of the Acquisition or the identity of Purchaser, (iv) any action or  omission by Purchaser in breach of this Agreement, (v) any action which is expressly requested in writing  by Purchaser, (vi) changes after the date hereof in any applicable Laws or applicable accounting regulations  or principles or the enforcement or interpretation thereof, (vii) any outbreak or escalation of hostilities or  war or any act of terrorism or natural disaster or act of God and (viii) any action required or prohibited by  the commencement of the Chapter 11 Case; provided, further, that the exceptions set forth in clauses (i),  (ii), (vi) and (vii) above shall only apply to the extent that such Effect is materially and disproportionately  adverse to the Business, taken as a whole, compared to other companies of similar size that operate in the  industries or markets in which Seller operate.  “Material Contracts” is defined in Section 3.13(a).  “Material Supplier” is defined in Section 3.20.  “Milestone Event” is defined in Section 1.6(a)(ii)(A).  “Milestone Payment” and “Milestone Payments” are defined in Section 1.6(a)(ii)(A).  “Non-Competition Period” is defined in Section 5.17(a).  “Non-Controlling Party” is defined in Section 7.2(b).  “Non-Solicitation Period” is defined in Section 5.17(b).  “Observational Study” means the prospective observational study identified by Seller as the  “Bentracimab Prospective Observational Study (REVERSE-IT Registry),” a synopsis of which was made  available to Purchaser and which is further described in the meeting minutes for the April 6, 2022 meeting  between Seller and the FDA.  “OFAC” is defined in Section 3.14(e).  “Offer Employees” is defined in Section 5.11.  





 






  71  “Order” means any order, injunction, judgment, decree, ruling, writ, assessment or award of a  Governmental Entity.  “Ordinary Course Licenses” means shrink wrap or click through licenses to generally available  third party technology or Software on standard terms that have not been customized for Seller for annual  consideration of less than $50,000.  “Ordinary Course of Business” means the ordinary and usual course of normal day-to-day  operations of Seller’s Business, as conducted by Seller consistent with past custom and practice (including  with respect to quantity and frequency), except for the consequences relating to the filing of the Chapter 11  Case; provided, that in no event shall “Ordinary Course of Business” include any breach of Law or Contract,  or violation of any Permit.  “Outside Date” is defined in Section 8.1.  “Overbid” is defined in the Bidding Procedures.  “P3 Study” means the Phase 3 Trial ongoing as of the date hereof, solely to the extent set forth in  Protocol Number PB2452-PT-CL-0004 (Amendment 4 version 5.0 Final dated 06May2022 thereto) (and  without modification, expansion or amendment to such protocol (including the specified endpoints therein)  and solely with respect to the number of patients (a) actually enrolled or (b) planned as of the date hereof  to be enrolled, whichever of (a) or (b) is greater, but in no event to exceed 200 patients in aggregate total,  of which not more than 59 will be bleed patients) as of the date hereof.  “party” and “parties” are defined in the Preamble.  “Patents” means patents and patent applications, including divisionals, continuations,  continuations-in-part, conversions, substitutions, additions, registrations, renewals, extensions,  restorations, supplementary protection certificates, confirmation, reissues, re-examinations, and  revalidations thereof and invention disclosures therefor, and including any equivalents of the foregoing in  any jurisdiction.  “Paying Party” is defined in Section 9.1(c).  “Periodic Taxes” is defined in Section 9.1(b).  “Permits” means all consents, approvals, authorizations, certificates, filings, notices, permits,  concessions, registrations, franchises, licenses or rights of or issued by any Regulatory Authority or other  Governmental Entity, including Regulatory Authorizations.  “Permitted Post-Closing Encumbrances” means any Permitted Pre-Closing Encumbrance that is  not extinguished by the Sale Order under applicable Law, it being understood that the Sale Order shall  extinguish Encumbrances to the maximum extent permissible under applicable Law.  “Permitted Pre-Closing Encumbrances” means (a) liens for Taxes not yet due and payable or being  contested in good faith by appropriate proceedings, (b) statutory liens and rights of setoff of carriers,  shippers, warehousemen, mechanics, repairmen, workmen, suppliers and materialmen, in each case,  incurred in the Ordinary Course of Business (i) for amounts not yet overdue, (ii) for amounts that are  overdue and that (in the case of any such amounts overdue for a period in excess of thirty (30) days) are  being contested in good faith, and (iii) restrictions or requirements set forth in any Permits relating to the  Business.   





 






  72  “Permitted Seller Person” is defined in Section 9.17(a).  “Person” means a natural person, partnership, corporation, limited liability company, business trust,  joint stock company, trust, unincorporated association, joint venture, Governmental Entity or other entity  or organization.  “Personal Data” means any and all information that can reasonably be associated with an individual  natural person, including information that identifies an individual natural person, including name, physical  address, telephone number, email address, financial account number, passwords or PINs, device identifier  or unique identification number, government-issued identifier (including Social Security number and  driver’s license number), medical, health or insurance information, gender, date of birth, educational or  employment information, religious or political views or affiliations and marital or other status (to the extent  any of these data elements can reasonably be associated with an individual natural person). Personal Data  also includes any information not listed above if such information is defined as “personal data,” “personally  identifiable information,” “individually identifiable health information,” “protected health information” or  “personal information” under any applicable Law and is regulated by such Law.  “Petition Date” is defined in the Recitals.  “Phase 3 Trial” means that certain Phase 3, Multicenter, Open-Label, Single-Arm Study of  Bentracimab (PB2452) in Ticagrelor-Treated Patients With Uncontrolled Major or Life-Threatening  Bleeding or Requiring Urgent Surgery or Invasive Procedure (REVERSE-IT Trial) commenced on or about  March 30, 2020, for which Seller is the sponsor.   “Post-Closing Tax Period” means any taxable period or portion thereof beginning after the Closing  Date and, in the case of any Straddle Period, the portion of such Straddle Period beginning immediately  after the Closing Date.  “Pre-Closing Tax Period” means any taxable period ending on or before the Closing Date and, in  the case of any Straddle Period, the portion of such Straddle Period ending on the Closing Date.  “Preservation Period” is defined in Section 5.2(b).  “Primarily Related” or “Primarily” means, with respect to the applicable referent term, any or all  of the following: (a) primarily related to, (b) reasonably necessary or useful with respect to or in connection  with the Exploitation of or (c) actually or proposed to be used with respect to or in connection with the  Exploitation of.   “Privacy Statements” means, collectively, all of Seller’s publicly posted privacy policies (including  if posted on Seller’s products and services) in effect as of the date hereof regarding the collection, use,  disclosure, transfer, storage, maintenance, retention, deletion, disposal, modification or processing of  Protected Information.  “Product” means (a) the Compound, (b) any product or product candidate that is comprised of or  contains the Compound and (c) any precursors, intermediates, improvements, modifications, derivatives or  formulations of any of the foregoing, including all forms of such pharmaceutical compositions in existence  or under research or in development. For the avoidance of doubt, references to “the Product” or “the  Products” include each of the foregoing, individually or collectively, as the context may require.  “Protected Information” means (a) Personal Data or (b) any information that is governed or  regulated by one or more Information Privacy and Security Laws that a Seller receives, creates, transmits  





 






  73  or maintains in electronic form through any of Seller’s systems networks or other information technology  systems.  “Purchase Price” is defined in Section 1.6(a).  “Purchaser” is defined in the Recitals.  “Purchaser Indemnitees” is defined in Section 7.1(b).  “Qualified Bids” is defined in the Bidding Procedures.  “Registered Intellectual Property” means all applications, registrations and filings for Intellectual  Property that have been registered, filed, or applied for with or by any Governmental Entity or other public  or quasi-public legal authority anywhere in the world, including the United States Patent and Trademark  Office or United States Copyright Office, including issued Patents and Patent applications, registered  Trademarks and Trademark applications, registered Copyrights and Copyright applications, and Internet  Properties registrations and applications.  “Regulatory Authority” means any national or supranational Governmental Entity, including the  FDA or the EMA, with responsibility for granting any license, registrations or approvals with respect to the  Products.  “Regulatory Authorizations” means any approvals, clearances, authorizations, registrations,  certifications, licenses and permits granted by any Regulatory Authority, including any INDs, BLAs and  MAAs.  “Regulatory Documentation” means all (a) applications, submissions, registrations, or notifications  submitted, or generated or prepared in preparation for, or anticipation of, submission, to a Regulatory  Authority with a view to the filing, obtaining, updating or maintaining of any Regulatory Authorization, in  each case including any investigational medicinal product dossier to the extent relating to the Product  (including, for clarity, INDs), (b) correspondence with or to Regulatory Authorities (including Regulatory  Authorization letters, minutes and official contact reports relating to any communications with any  Regulatory Authorities) with respect to the assets described in clause (a) above, (c) records contained in all  pharmacovigilance and study databases, all adverse drug events, experience or reaction reports and  associated documents, investigations of adverse drug event, experience or reaction reports, and any other  information relevant to the assessment of safety or benefit-risk ratios, including, for the avoidance of doubt,  all legacy data, in each case to the extent relating to the Product, (d) non-clinical, clinical and other files,  writings, drafts, notes, studies, reports, modules and other documents or data contained or referenced in or  supporting any of the foregoing, in each case, that were acquired, developed, compiled, collected or  generated by Seller or by any third party on behalf of Seller, in each case, to the extent used or related to  the Product or the Business, (e) Trial Data, and (f) all regulatory or legal rights in any of (a)-(e).  “Reimbursing Party” is defined in Section 9.1(c).  “Representatives” means, when used with respect to any Person, the directors, officers, employees,  consultants, financial advisors, accountants, legal counsel, investment bankers and other agents, advisors  and representatives of such Person and its Subsidiaries.  “Required Key Employees” means the required number of Key Employees in each category of Key  Employees in the Key Employee Group, as set forth in the Key Employee Notice; provided, however, that  if Purchaser elects, in its sole discretion, not to make an offer of employment or engagement as a consultant  





 






  74  or independent contractor to one or more Key Employees, the required number of Key Employees in the  applicable category shall be reduced by the number of Key Employees in such category that have not  received an offer of employment or engagement as a consultant or independent contractor; provided,  further, that no such reduction shall apply with respect to any Key Employee whose employment with  Seller terminates (voluntarily or involuntarily) prior to Closing.  “Restricted Parties” is defined in Section 3.14(g).  “Restructuring Transaction” means (a) any recapitalization transaction, plan of reorganization,  liquidation, restructuring or sale, including any such transaction by way of a credit bid by or settlement with  any creditor or other contractual counterparty of Seller, involving (directly or indirectly) all or any material  portion of the Acquired Assets, or (ii) any merger, consolidation, share exchange, business combination or  similar transaction (directly or indirectly) involving all or any material portion of the Acquired Assets, in  each case whether in one transaction or a series of transactions; provided that, in each case of (i) and (ii),  such transaction will not be considered to be a Restructuring Transaction if such transaction occurs prior to  the termination of this Agreement and would not prevent the Acquisition from occurring in accordance with  the terms of this Agreement.  “Retained Books and Records” means the company seal, minute books, stock certificates, stock or  equity record books, Tax Returns and other books, records and work papers related to Taxes paid or payable  by Seller or their Affiliates, work papers and such other books and records as pertain to the organization,  qualification to do business, existence or capitalization of Seller or any Affiliate thereof, books and records  that Seller is required to retain under applicable Law, books and records that relate exclusively to an  Excluded Asset or Excluded Liability and all of Seller’s communications, documents, or materials  exclusively related to the Excluded Assets and the Excluded Liabilities that Seller may retain pursuant to  any attorney-client privilege, work product doctrine, common interest, or joint defense privilege, and  electronic and tangible documents reflecting such communications and materials.  “Sale Hearing” means the hearing conducted by the Bankruptcy Court to approve the Transactions.  “Sale Motion” is defined in Section 5.6.  “Sale Order” means an Order of the Bankruptcy Court in the form attached hereto as Exhibit D,  with any changes that Purchaser may approve in advance in its sole and absolute discretion, that has not  been stayed, vacated or stayed pending appeal, authorizing and approving the sale of the Acquired Assets  to Purchaser on the terms and conditions set forth herein.  “SEC” means the Securities and Exchange Commission.  “Seller” is defined in the Recitals.  “Seller Confidentiality Agreements” means those agreements by and between Seller, on the one  hand, and Persons expressing an interest in acquiring an ownership interest in Seller or the Business, on the  other hand, with respect to the use and confidentiality of information about Seller and its Affiliates and the  Business and certain other obligations.  “Seller Disclosure Schedule” means the disclosure schedule delivered by Seller to Purchaser  immediately prior to the execution of this Agreement.  “Seller Indemnitees” is defined in Section 7.1(c).  





 






  75  “Seller Intellectual Property” means all Intellectual Property owned or purported to be owned by,  or licensed to, Seller (other than Intellectual Property that is an Excluded Asset) which (i) claim, cover or  are embodied in, or (ii) are otherwise Primarily Related to, in each case ((i) and (ii)) the Product or the  Business.  “Seller Registered Intellectual Property” means all Registered Intellectual Property that is  registered or recorded in the name of, is or was filed or recorded in the name of, or that has been assigned  to, Seller or Seller’s licensor.  “Seller SEC Documents” means all forms, statements, documents and reports filed or furnished  with the SEC since January 1, 2020.  “Software” means all types of computer and other software programs including operating systems,  application programs, software tools, firmware and software imbedded in equipment, including both object  code and source code versions thereof, and all related documentation.  “Specified Laboratory Equipment” is defined in Section 1.1(q).  “Straddle Period” means a taxable period that includes but does not end on the Closing Date.  “Subsidiary” means with respect to any Person, any corporation, limited liability company,  partnership or other organization, whether incorporated or unincorporated, of which (a) at least a majority  of the outstanding shares of capital stock, or other equity interests, having by their terms ordinary voting  power to elect a majority of the board of directors or others performing similar functions with respect to  such corporation, limited liability company, partnership or other organization is directly or indirectly owned  or controlled by such Person or by any one or more of its Subsidiaries, or by such Person and one or more  of its Subsidiaries, or (b) with respect to a partnership, such Person or any other Subsidiary of such Person  is a general partner of such partnership.  “Successful Bidder” is defined in the Bidding Procedures.  “Surgical Indication” means the indication for the Product for the reversal of the antiplatelet effects  of ticagrelor in patients requiring urgent surgery or an invasive procedure.  “Tax” or “Taxes” means any and all U.S. federal, state, local and non-U.S. taxes, assessments,  levies, duties, tariffs, imposts and other similar charges and fees imposed by any Governmental Entity,  including income, franchise, windfall or other profits, gross receipts, property, sales, use, net worth, capital  stock, payroll, employment, social security, workers’ compensation, unemployment compensation, excise,  withholding, ad valorem, stamp, transfer, value-added, occupation, environmental, disability, real property,  personal property, registration, alternative or add-on minimum, or estimated tax, including any interest,  penalty, additions to tax and any additional amounts imposed with respect thereto.  “Tax Return” means any report, return, certificate, claim for refund, election, estimated Tax filing  or declaration filed or required to be filed with any Governmental Entity with respect to Taxes, including  any schedule or attachment thereto, and including any amendments thereof.  “Taxing Authority” means any federal, state, local or foreign Governmental Entity or authority  responsible for the imposition, collection or administration of any Tax.  “Third Party Claim” is defined in Section 7.2(b).  





 






  76  “Trademarks” means trademarks, trademark rights, service marks, service mark rights, trade dress,  logos, slogans, trade names, trade name rights, assumed names, corporate names and other designations of  origin, together with all translations, adaptations, derivations and combinations thereof and including all  goodwill associated therewith, and all applications, registrations and renewals in connection therewith.  “Transactions” means the transactions contemplated by this Agreement and the Ancillary  Documents.  “Transfer Taxes” is defined in Section 9.1(a).  “Transferred Employee” is defined in Section 5.11.  “Transition Services Agreement” is defined in Section 2.2(a)(vii).  “Trial Data” means all technical or scientific Know-How, trade secrets, methods, processes,  formulae, designs, specifications and data, including biological, chemical, pharmacological, toxicological,  pre-clinical, clinical, safety, manufacturing and quality control data and assays; in each case, whether or  not confidential, proprietary, patented or patentable, in any form, (a) generated or developed by or on  behalf of Seller or any collaborator, co-developer or other Person to which Seller or such collaborator or  co-developer has delegated responsibility or has otherwise engaged to perform clinical trials or CMC  related activities (including supply of the Product for use in clinical trials) or related services, including  any clinical trial databases and other data and reports arising out of the conduct of clinical trials or other  clinical activities, any clinical trial agreements, vendor agreements or contract research organization  agreements related to the conduct of the clinical trials or clinical activities, including any and all research  results, or (b) either owned or controlled by Seller as of the date hereof, or upon passage of time, or  occurrence of a particular event, would become owned or controlled by Seller, in each case Primarily  Related to the Business or Product.     [Signature Page Follows]  





 






    [Signature Page to Asset Purchase Agreement]  IN WITNESS WHEREOF, Seller and Purchaser have caused this Agreement to be executed on  their behalf by their officers thereunto duly authorized, as of the date first above written.        SELLER:     PHASEBIO PHARMACEUTICALS INC.        By:  /s/ Jonathan Mow    Name: Jonathan Mow   Title: Chief Executive Officer                   





 






    [Signature Page to Asset Purchase Agreement]  IN WITNESS WHEREOF, Seller and Purchaser have caused this Agreement to be executed on  their behalf by their officers thereunto duly authorized, as of the date first above written.          PURCHASER:      CHIESI FARMACEUTICI S.P.A.          By:  /s/ Alessandro Chiesi     Name: Alessandro Chiesi   Title: Chief Commercial Officer