snwv_ex101





 







Exhibit 10.1



 


 


 


 


 


 


 


 


ASSET
PURCHASE AGREEMENT

 


between

 


CELULARITY
INC.

 


and

 


SANUWAVE
HEALTH, INC.

 


Dated
as of August 6, 2020

 


 


 


 


 


 


 


 




 








 







TABLE OF CONTENTS

 



Page

 


 

 


	

ARTICLE I
DEFINITIONS  

	


1


	

1.1.

	


Defined Terms

	


1


	


ARTICLE II PURCHASE AND SALE OF ASSETS AND ASSUMPTION OF
LIABILITIES

	


1


	

2.1.

	


Acquired Assets

	


1


	

2.2.

	


Excluded Assets

	


3


	

2.3.

	


Assumed Liabilities

	


4


	

2.4.

	


Excluded Liabilities

	


4


	

2.5.

	


Purchase Price

	


5


	

2.6.

	


Non-Assignable Assets

	


5


	

2.7.

	


Purchase Price Allocation

	


6


	

2.8.

	


Withholding

	


7


	

ARTICLE
III CLOSING  

	


8


	

3.1.

	


Closing

	


8


	

3.2.

	


Closing Deliverables

	


8


	


ARTICLE IV REPRESENTATIONS AND WARRANTIES OF SELLER

	


9


	

4.1.

	


Organization, Good Standing and Qualification

	


9


	

4.2.

	


Corporate Authority; Approval and Fairness

	


9


	

4.3.

	


Governmental Filings; No Violations; Certain Contracts

	


10


	

4.4.

	


Seller Reports; Financial Statements

	


11


	

4.5.

	


Absence of Certain Changes

	


11


	

4.6.

	


Litigation and Liabilities

	


11


	

4.7.

	


Compliance with Laws; Permits

	


12


	

4.8.

	


Material Contracts

	


12


	

4.9.

	


Property

	


14


	

4.10.

	


Environmental Matters

	


14


	

4.11.

	


Taxes

	


15


	

4.12.

	


Labor Matters

	


15


	

4.13.

	


Intellectual Property

	


17


	

4.14.

	


Insurance

	


18


	

4.15.

	


Brokers and Finders

	


18


	

4.16.

	


Customers/Suppliers

	


19


	

4.17.

	


Warranties/Product Liability

	


19


	

4.18.

	


Entire Interest; All Assets

	


19


	

4.19.

	


Regulatory Matters

	


20


	

4.20.

	


Title to Tangible Assets

	


21


	

4.21.

	


Inventory

	


22


	

4.22.

	


Fraudulent Conveyance

	


22






 



 







 





 


	


ARTICLE V REPRESENTATIONS AND WARRANTIES OF BUYER

	


22


	

5.1.

	


Organization, Good Standing and Qualification

	


22


	

5.2.

	


Corporate Authority

	


23


	

5.3.

	


Governmental Filings; No Violations; Etc.

	


23


	

5.4.

	


Litigation

	


23


	

5.5.

	


Sufficiency of Funds

	


23


	

5.6.

	


Brokers

	


23


	

5.7.

	


Disclaimer

	


24


	

ARTICLE
VI COVENANTS  

	


24


	

6.1.

	


Transfer Taxes

	


24


	

6.2.

	


Commercially Reasonable Efforts

	


24


	

6.3.

	


Post-Closing Access.

	


25


	

6.4.

	


Publicity

	


25


	

6.5.

	


Employees; Employee Benefits

	


25


	

6.6.

	


Expenses

	


26


	

6.7.

	


Non-Competition; Non-Solicitation; Confidential Business
Information

	


26


	

6.8.

	


Wrong Pocket Assets

	


27


	

6.9.

	


Further Assurances

	


27


	


ARTICLE VII INDEMNIFICATION

	


28


	

7.1.

	


Survival of Representations and Warranties

	


28


	

7.2.

	


Indemnification by Seller

	


28


	

7.3.

	


Indemnification by Buyer

	


28


	

7.4.

	


Direct Claims

	


29


	

7.5.

	


Matters Involving Third Party Claims

	


29


	

7.6.

	


Limitations on Indemnification

	


31


	


ARTICLE VIII MISCELLANEOUS AND GENERAL

	


31


	

8.1.

	


Modification or Amendment

	


31


	

8.2.

	


Waiver of Conditions

	


31


	

8.3.

	


Counterparts

	


31


	

8.4.

	


GOVERNING LAW AND VENUE; WAIVER OF JURY TRIAL; SPECIFIC
PERFORMANCE

	


32


	

8.5.

	


Notices

	


32


	

8.6.

	


Entire Agreement

	


33


	

8.7.

	


No Third Party Beneficiaries

	


34


	

8.8.

	


Obligations of Buyer and of Seller

	


34


	

8.9.

	


Severability

	


34


	

8.10.

	


Interpretation; Construction

	


34


	

8.11.

	


Assignment

	


34


	


Annex A

	


Defined Terms

	


A-1


	


Exhibit A

	


Seller Note

	
 







 

 


 




 








 







ASSET PURCHASE AGREEMENT

 


This
ASSET PURCHASE AGREEMENT (this “Agreement”), dated August
6, 2020, among Celularity Inc., a Delaware corporation
(“Seller”), and SANUWAVE
Health, Inc., a Nevada corporation (“Buyer”). Each of Buyer
and Seller are sometimes referred to herein as a
“Party”
and together as the “Parties”.

 


RECITALS

 


1.           Buyer
desires to acquire from Seller, and Seller desires to sell to
Buyer, the Acquired Assets (as defined below) and the Business (as
defined below), as more particularly set forth in this Agreement
(the “Asset
Transaction”).

 


2.           In
consideration of such sale, Buyer will deliver to Seller the
Purchase Price (as defined below) and assume the Assumed
Liabilities (as defined below), as more particularly set forth in
this Agreement.

 


3.           The
Board of Directors of Seller (the “Seller Board”) has
unanimously (a) determined that this Agreement, and the Asset
Transaction and the other transactions and agreements contemplated
by this Agreement (collectively, the “Transactions”) are fair
to and in the best interests of Seller and its stockholders, and
(b) declared it advisable to enter into this Agreement and approved
the execution, delivery, and performance of this
Agreement.

 


4.           The
Board of Directors of Buyer has unanimously approved the
Transactions on the terms and subject to the conditions set forth
in this Agreement and declared it advisable for Buyer to enter into
this Agreement.

 


NOW,
THEREFORE, in consideration of the premises, and of the
representations, warranties, covenants and agreements contained
herein, the Parties agree as follows:

 


ARTICLE
I

 


Definitions

 


1.1.           Defined
Terms. Capitalized terms
in the Agreement have the meanings specified or referred to in
Annex A hereto.

 


ARTICLE
II

 


Purchase and Sale
of Assets and Assumption of Liabilities

 



2.1.           Acquired
Assets. Subject to the
terms and conditions of this Agreement, at the Closing (defined
below), Seller shall sell, assign, transfer, convey and deliver to
Buyer, and Buyer shall purchase, acquire and take assignment and
delivery of all of the assets, properties, contractual rights,
goodwill, going concern value, rights and claims owned, leased or
licensed by or to Seller (wherever located) that are primarily used
in, primarily held for use in, or primarily related to, the
Business (except for the Excluded Assets) (collectively, the
“Acquired
Assets”), free and clear of all Liens,
including:

 


 




 








 






 


 

 



(a)           Assumed
Contracts. All rights of Seller under the Contracts set
forth on Section
2.1(a) of the
Seller Disclosure Letter (collectively, the “Assumed Contracts”),
including all claims or causes of action of Seller with respect to
the Assumed Contracts;

 



(b)           Inventory.
All products, parts, supplies, materials and other inventory
(wherever located), used, held for use or intended to be used in
the Business, as of the Closing Date, including all raw materials,
work in process and finished goods and all UltraMIST devices and
consumables (collectively, the “Inventory”);

 



(c)           Books
and Records. Those books and records primarily related to
the Business and Acquired Assets, including employment records
relating to the applicable Continuing Employees and files and other
information and/or data used by Seller in, or that arise out of,
the operation of the Business or as set forth on Section 2.1(c) of the Seller Disclosure
Letter (the “Acquired
Records”);

 


(d)           Intellectual
Property Assets. All Intellectual Property that is owned by
Seller and used, held for use, or intended to be used primarily or
exclusively in connection with the Business;

 


(e)           Permits.
All Permits which are held by Seller and used, held for use, or
intended to be used primarily in the conduct of the Business as
currently conducted, or for the ownership and use of the Acquired
Assets, and all pending applications therefor and renewals thereof
that are used, held for use or intended to be used primarily or
exclusively in the operation of the Business;

 


(f)           Causes
of Action. All rights, claims or causes of action of Seller
against third parties that relate primarily to any of the Acquired
Assets or the Business; provided, however, that such claims or
rights shall not include any claims, causes of action, defenses and
rights of offset or counterclaim related to the Excluded
Assets;

 



(g)           Assigned
Lease. All of Seller’s right, title and interest in
and to that certain real property lease set forth on Section 2.1(g) of the Seller Disclosure
Letter (the “Assigned
Lease”);

 


(h)           Personal
Property. All tangible personal property, including all
plant, machinery, equipment, supplies, spare parts, tools,
leasehold improvements, furniture, furnishings, software, hardware
and vehicles, used, held for use or intended to be used primarily
in the operation of the Business;

 


(i)           Deposits
and Prepaid Items. All deposits and advances, prepaid
expenses, credits, deferred charges and other prepaid items, or
portions thereof, arising out of or related to the Business or the
Acquired Assets;

 


(j)           Insurance
Proceeds. All third party property and casualty insurance
proceeds and all rights to third party property and casualty
insurance proceeds relating to claims arising following the Closing
Date, in each case, to the extent received or receivable in respect
of the Business or the Acquired Assets;

 


 



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(k)           Goodwill
and Intangible Assets. All goodwill and other intangible
assets appurtenant to the Acquired Assets or the Business and the
right to represent to third parties that Buyer is the successor to
the Business; and

 


(l)           Other
Assets. All other assets not specifically enumerated in this
Section 2.1, but otherwise used, held
for use or intended to be used primarily in the operation of the
Business.

 



2.2.           Excluded
Assets. Notwithstanding
the foregoing, the Acquired Assets will not include the following
assets (collectively, the “Excluded
Assets”):

 


(a)           Excluded
Contracts. All Contracts to which Seller is a party or by
which Seller is bound, other than the Assumed
Contracts;

 


(b)           Cash.
All cash, cash equivalents and investment securities held by
Seller, including any depository accounts and lockboxes in which
such assets are held;

 


(c)           Accounts
Receivable. All accounts receivable, trade receivable, notes
receivable and other receivables of Seller;

 


(d)           Records.
Other than the Acquired Records, all records and other protected
business information of Seller;

 


(e)           Corporate
Records. Seller’s Certificate of Incorporation,
qualifications to conduct business as a foreign corporation,
arrangements with registered agents relating to foreign
qualifications, taxpayer and other identification numbers, seals,
minute books, stock transfer books, blank stock certificates, all
of Seller’s Tax Returns and books and records relating to
Seller’s Tax Returns or otherwise relating to Tax matters of
Seller, for all periods and other documents relating to the
organization, maintenance, and existence of Seller as a
corporation;

 


(f)           Rights
Under this Agreement. Any of the rights of Seller under this
Agreement (or under any other agreement between Seller on the one
hand and Buyer on the other hand entered into on or after the date
of this Agreement);

 


(g)           Real
Property. All of Seller’s right, title and interest in
and to any leased real property, other than the Assigned
Lease;

 


(h)           Tax
Refunds. All rights and interest in any refund of Taxes to
the extent such refund of Taxes is for the benefit of
Seller;

 


(i)           Deposits
and Prepaid Items. All deposits and advances, prepaid
expenses, credits, deferred charges and other prepaid items, or
portions thereof, of Seller that are unrelated to the
Business;

 


(j)           Employee
Plans. All Employee Plans (including any Contracts related
thereto) and all assets held with respect to the Employee Plans;
and

 


 



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(k)           Other
Excluded Assets. All of Seller’s right, title and
interest in and to all of its other assets (except for the Acquired
Assets).

 



2.3.           Assumed
Liabilities. Subject to the
terms and conditions set forth herein, Buyer shall assume and agree
to pay, perform and discharge only the following liabilities of
Seller (collectively, the “Assumed
Liabilities”):

 


(a)           Assumed
Contracts. All liabilities and obligations arising from and
after the Closing under the Assumed Contracts;

 


(b)           Continuing
Employees. All liabilities and obligations of Buyer or its
Affiliates relating to employee benefits, compensation or other
arrangements with respect to any Continuing Employee arising after
the Closing;

 


(c)           Taxes.
All liabilities and obligations for (i) Taxes arising from or
relating to Buyer’s operation of the Business, ownership of
the Acquired Assets or assumption of the Assumed Liabilities after
the Closing Date and (ii) Taxes for which Buyer is liable pursuant
to Section
6.1; provided that, for the
avoidance of doubt, Buyer shall not assume any Tax liabilities or
obligations of Seller; and

 


(d)           Other
Liabilities. All other liabilities and obligations arising
out of or relating to Buyer's ownership or operation of the
Business and the Acquired Assets from and after the
Closing.

 



2.4.           Excluded
Liabilities. Buyer shall not
assume and shall not be responsible to pay, perform or discharge
any of, and Seller shall timely perform, satisfy, and discharge in
accordance with their respective terms, the liabilities or
obligations of Seller arising out of, relating to or otherwise in
respect of the Business or the Acquired Assets prior to the
Closing, including the following (collectively, the
“Excluded
Liabilities”):

 


(a)           Trade
Accounts. All trade accounts payable of Seller to third
parties in connection with the Business that remain unpaid as of
the Closing Date;

 


(b)           Pre-Closing
Liabilities. Any liabilities or obligations in respect of
any products sold and/or services performed by Seller or in respect
of the operation of its business (including the Business) on or
prior to the Closing;

 


(c)           Excluded
Assets. Any liabilities or obligations relating to or
arising out of the Excluded Assets;

 


(d)           Seller
Taxes. Any Tax liabilities or obligations of
Seller;

 


(e)           Contracts.
Any liabilities or obligations arising out of, under or in
connection with Contracts that are not Assumed Contracts and, with
respect to Assumed Contracts, any liabilities or obligations in
respect of a breach by or default of Seller accruing under such
Assumed Contracts with respect to any period on or before the
Closing;

 


 



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(f)           Indebtedness.
Any liabilities or obligations arising out of, under or in
connection with any Indebtedness of Seller;

 


(g)           Actions.
Any liabilities or obligations in respect of any pending or
threatened Action against Seller or any claim arising out of,
relating to or otherwise in respect of (i) the operation of the
Business to the extent such Action relates to such operation on or
prior to the Closing, or (ii) any Excluded Asset;

 


(h)           Other
Business. Any liabilities or obligations of Seller relating
to the conduct or operation of any other business of Seller, other
than the Business;

 


(i)           Agreement.
Any liabilities or obligations of Seller arising or incurred in
connection with the negotiation, preparation, investigation and
performance of this Agreement, the other Related Agreements and the
transactions contemplated hereby and thereby, including, without
limitation, fees and expenses of counsel, accountants, consultants,
advisers and others; and

 


(j)           Employees
and Employee Plans. All liabilities and obligations with
respect to any (i) employees or former employees of Seller
(including, for the avoidance of doubt, any change of control bonus
or severance obligations of Seller with respect to employees or
former employees of Seller) and (ii) all obligations and
liabilities with respect to the Employee Plans.

 



2.5.           Purchase
Price. As full
consideration for the sale, assignment, transfer and delivery of
the Acquired Assets by Seller to Buyer and the other Transactions,
including without limitation, the execution and delivery of the
License Agreement by Seller to Buyer, at the Closing, Buyer shall
deliver to Seller aggregate consideration of $24,000,000 as follows
(together, the “Purchase
Price”):

 


(a)           At
the Closing, a wire transfer of immediately available U.S. funds in
an amount equal to $18,890,000 (the “Cash Consideration”) to
an account designated in writing by Seller and delivered to Buyer
no later than two Business Days prior to the Closing
Date;

 


(b)           At
the Closing, Buyer shall issue to Seller a promissory note in the
principal amount of $4,000,000 in the form attached hereto as
Exhibit A (the
“Seller
Note”); and

 


(c)           The
previous payment of $1,110,000 from Buyer to Seller pursuant to
that certain letter of intent between Buyer and Seller dated as of
June 7, 2020 shall be credited against the Purchase
Price.

 



2.6.           Non-Assignable
Assets

 


.

 


 



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(a)           Notwithstanding
anything to the contrary in this Agreement, and subject to the
provisions of this Section 2.6, to the extent that the
sale, assignment, transfer, conveyance or delivery, or attempted
sale, assignment, transfer, conveyance or delivery, to Buyer of any
Acquired Asset would result in a violation of applicable Law, or
would require the consent, authorization, approval or waiver of a
Person who is not a Party to this Agreement or an Affiliate of a
Party to this Agreement (including any Governmental Entity), and
such consent, authorization, approval or waiver shall not have been
obtained prior to the Closing, this Agreement shall not constitute
a sale, assignment, transfer, conveyance or delivery, or an
attempted sale, assignment, transfer, conveyance or delivery,
thereof; provided,
however, that,
subject to the satisfaction or waiver of the conditions contained
in Article III, the
Closing shall occur notwithstanding the foregoing without any
adjustment to the Purchase Price on account thereof. Following the
Closing, Seller and Buyer shall use commercially reasonable
efforts, and shall cooperate with each other, to obtain any such
required consent, authorization, approval or waiver, or any
release, substitution or amendment required to novate all
liabilities and obligations under any and all Assumed Contracts or
other liabilities that constitute Assumed Liabilities or to obtain
in writing the unconditional release of all parties to such
arrangements, so that, in any case, Buyer shall be solely
responsible for such liabilities and obligations from and after the
Closing Date; provided, however, that neither Seller
nor Buyer shall be required to pay any consideration therefor. Once
such consent, authorization, approval, waiver, release,
substitution or amendment is obtained, Seller shall sell, assign,
transfer, convey and deliver to Buyer the relevant Acquired Asset
to which such consent, authorization, approval, waiver, release,
substitution or amendment relates for no additional consideration.
Applicable sales, transfer and other similar Taxes in connection
with such sale, assignment, transfer, conveyance or license shall
be paid in accordance with Section 6.1.

 


(b)           To
the extent that any Acquired Asset and/or Assumed Liability cannot
be transferred to Buyer following the Closing pursuant to this
Section
2.6, Buyer and
Seller shall use commercially reasonable efforts to enter into such
arrangements (such as subleasing, sublicensing or subcontracting)
to provide to the parties the economic and, to the extent permitted
under applicable Law, operational equivalent of the transfer of
such Acquired Asset and/or Assumed Liability to Buyer as of the
Closing and the performance by Buyer of its obligations with
respect thereto. Buyer shall, as agent or subcontractor for Seller,
pay, perform and discharge fully the liabilities and obligations of
Seller thereunder from and after the Closing Date. To the extent
permitted under applicable Law, Seller shall, at Buyer's expense,
hold in trust for and pay to Buyer promptly upon receipt thereof,
such Acquired Asset and all income, proceeds and other monies
received by Seller to the extent related to such Acquired Asset in
connection with the arrangements under this Section 2.6. Seller shall be permitted
to set off against such amounts all direct costs associated with
the retention and maintenance of such Acquired Assets.
Notwithstanding anything herein to the contrary, the provisions of
this Section 2.6 shall not apply to any
consent or approval required under any antitrust, competition or
trade regulation Law, which consent or approval shall be governed
by Section
5.3.

 



2.7.           Purchase
Price Allocation

 



(a)           The
Purchase Price (and such other amounts as shall be treated as
purchase price for U.S. federal income tax purposes) shall be
allocated among the assets and other rights acquired or obtained by
Buyer in connection with the transactions described in this
Agreement for all Tax purposes in accordance with their respective
fair market values pursuant to an allocation schedule prepared by
the Buyer and delivered to the Seller as soon as reasonably
practicable after the Closing, but not more than 60 days following
the Closing, in accordance with Section 1060 of the Code (the
“Allocation”). The Seller
shall, within 10 Business Days after receipt of the Buyer’s
determination of the Allocation, provide written notice to the
Buyer as to the portions of the Allocation (if any) with which the
Seller has a disagreement, as well as Seller’s proposed
revisions to such portions (the “Seller Objection
Notice”). If the Seller does not provide a Seller
Objection Notice to the Buyer within such 10 Business Day period,
the Allocation shall be final and binding on the
Parties.

 


 



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(b)           If
the Seller does provide a Seller Objection Notice to the Buyer
within such 10 Business Day period, then the portions of the
Allocation that were not objected to by the Seller shall be
considered final and binding on all Parties and the Parties shall
make a good faith effort to resolve any disagreements regarding the
portions of such Allocation that were objected to in the Seller
Objection Notice, and if the Parties are unable to resolve their
disagreements regarding such items within 30 days of delivery of
such Seller Objection Notice, they shall jointly retain and refer
their disagreements to a nationally recognized third party
accounting firm mutually selected by the Parties in good faith (the
“Independent
Expert”). The Parties shall instruct the Independent
Expert to promptly review the portions of the Allocation which are
in dispute among the Parties pursuant to this Section 2.7 and to resolve such dispute
as promptly as is practicable. The Parties shall reasonably
cooperate and respond to any inquiries from the Independent Expert
in connection with the Independent Expert’s review and
analysis of the portions of the Allocation which are in dispute
among the Parties. As promptly as practicable, but in no event
later than 45 days after its retention, the Independent Expert
shall deliver to the Buyer and the Seller a report that sets forth
its resolution of the disputed items with respect to the
Allocation, and such report of such items of the Allocation shall
thereupon be final, binding and conclusive on the Parties;
provided,
however, that the
Independent Expert may not assign a value to any item greater than
the greatest value for such item claimed by the Buyer, on the one
hand, and the Seller, on the other hand, nor less than the smallest
value for such item claimed by the Buyer, on the one hand, and the
Seller, on the other hand. The costs and expenses of the
Independent Expert shall be allocated between the Buyer, on the one
hand, and the Seller, on the other hand, based upon the percentage
that the portion of the aggregate contested amount not awarded to
each Party bears to the aggregate amount actually contested by such
Party, as determined by the Independent Expert. The Parties agree
to execute, if requested by the Independent Expert, a reasonable
engagement letter, including customary indemnities in favor of the
Independent Expert.

 


(c)           Except
as may be required by otherwise by applicable law, each of the
Parties will (i) file or cause to be filed all Tax Returns
(including IRS Form 8594) in a manner consistent with the
Allocation (as finalized pursuant to the provisions of this
Section
2.7) and
(ii) not take any action inconsistent therewith. Any
adjustments to the Purchase Price subsequent to the initial
delivery of the Allocation by the Buyer to the Seller shall be
reflected in amendments to the Allocation in a manner consistent
with Treasury Regulation Section 1.1060-1.

 


2.8.           Withholding.
Buyer shall be entitled to deduct and withhold from any payments
required to be made by Buyer in connection with this Agreement such
amounts (if any) as it is required to deduct and withhold pursuant
to the Code or any applicable provision of any state, local or non
U.S. Tax laws, and any amount so deducted and withheld shall be
remitted to the appropriate Governmental Entity as required by
applicable laws, rules or regulations, and upon the same, such
amounts shall be treated for all purposes as having been paid by
the Buyer to the party to whom such payments were required to be
made in connection with this Agreement.

 


 



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ARTICLE
III

 



Closing

 



3.1.           Closing.
The closing of the Transactions, (the “Closing”) will take place
remotely via the exchange of documents and signatures at 10:00 a.m.
Eastern Time on the date hereof (the “Closing
Date”).

 


3.2.           Closing
Deliverables

 


(a)           Seller’s
Deliverables. At the Closing, Seller shall deliver to Buyer
the following:

 



(i)           a
bill of sale (the “Bill of Sale”) in
customary form and mutually acceptable to the Parties and duly
executed by Seller, transferring the tangible personal property
included in the Acquired Assets to Buyer;

 



(ii)           an
assignment and assumption agreement (the “Assignment and Assumption
Agreement”) in customary form and mutually acceptable
to the Parties and duly executed by Seller, effecting the
assignment to and assumption by Buyer of the Acquired Assets and
the Assumed Liabilities;

 



(iii)           a
transition services agreement (the “Transition Services
Agreement”) covering such reasonable transition
services, as the Parties may, acting in good faith, mutually
determine and duly executed by Seller;

 



(iv)           assignment
agreements for the transfer of the Intellectual Property that is
included in the Acquired Assets (the “IP Assignment
Agreements”) in customary form and mutually acceptable
to the Parties and duly executed by Seller;

 


(v)           the
FIRPTA Certificate;

 


(vi)           the
Seller Secretary’s Certificate;

 


(vii)        
the License Agreement, in form to be agreed upon between Buyer and
Seller (the “License
Agreement”), duly executed by Seller; and

 


(viii)       
such other customary instruments of transfer, assumption, filings
or documents, in form and substance reasonably satisfactory to
Buyer, as may be required to give effect to this
Agreement.

 


(b)           Buyer’s
Deliverables. At the Closing, Buyer shall deliver to Seller
the following:

 


(i)           the
Purchase Price;

 


(ii)           the
Bill of Sale and Assignment and Assumption Agreement each duly
executed by Buyer;

 


 



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(iii)           the
Transition Services Agreement duly executed by Buyer;

 


(iv)           the
Buyer Secretary’s Certificate;

 


(v)           the
License Agreement duly executed by Buyer; and

 


(vi)           the
Seller Note duly executed by Buyer.

 


ARTICLE
IV

 


Representations
and Warranties of Seller

 


Except
as set forth in the corresponding sections or subsections of the
Disclosure Letter delivered to Buyer by Seller contemporaneously
with this Agreement (the “Seller Disclosure
Letter”) (it being agreed that disclosure of any item
in any section or subsection of the Seller Disclosure Letter will
be deemed disclosure with respect to any other section or
subsection of the Seller Disclosure Letter only to the extent that
the relevance of such item to such section or subsection is readily
apparent on its face), Seller hereby represents and warrants to
Buyer as follows:

 



4.1.           Organization,
Good Standing and Qualification. Seller is a
corporation duly organized, validly existing and in good standing
under the Laws of the State of Delaware and has all requisite
corporate power and authority to own, lease and operate its
properties and assets and to carry on the Business as presently
conducted. Seller is qualified to do business and is in good
standing as a foreign corporation or other legal entity in each
jurisdiction where the ownership, leasing or operation of its
assets or properties or conduct of the Business requires such
qualification, except as would not, individually or in the
aggregate, be reasonably likely to have a Material Adverse Effect.
Prior to the date of this Agreement, Seller has delivered to Buyer
complete and correct copies of Seller’s certificates of
incorporation and bylaws or comparable governing documents, each as
amended to the date of this Agreement, and each as so delivered is
in full force and effect as of the date of this
Agreement.

 



4.2.           Corporate
Authority; Approval and Fairness. Seller has all
requisite corporate power and authority and has taken all corporate
action necessary in order to execute, deliver and perform its
obligations under this Agreement and any Related Agreements to
which it is a party, and to consummate the Transactions. The
execution, delivery and performance of this Agreement by Seller and
the consummation by Seller of the Transactions have been duly
authorized by all necessary corporate action on the part of Seller,
and no other corporate proceeding or action on the part of Seller
is necessary to adopt or authorize this Agreement or to consummate
the Transactions. This Agreement, and each Related Agreement to
which Seller is a party when so executed by Seller, has been duly
executed and delivered by Seller and constitutes a valid and
binding Contract of Seller enforceable against Seller in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar Laws of general
applicability relating to or affecting creditors’ rights
generally or by general principles of equity, whether considered in
a proceeding at law or in equity (the “Enforceability
Exception”).

 


 



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4.3.           Governmental
Filings; No Violations; Certain Contracts

 



(a)           No
notifications, consents, registrations, approvals, permits or
authorizations are required to be obtained by Seller from, any
domestic or foreign governmental or regulatory authority, agency,
commission, body, court or other legislative, executive or judicial
governmental entity (each, a “Governmental Entity”), in
connection with the execution, delivery and performance of this
Agreement by Seller or the consummation of the Transactions, or in
connection with the continuing operation of the Business by Buyer
following the Closing, except for (i) as set forth in Section 4.7(a) of this Agreement, or
(ii) as would not, individually or in the aggregate, be reasonably
likely to have a Material Adverse Effect, (collectively, the items
in clauses (i) and (ii), the “Seller
Approvals”).

 



(b)           The
execution, delivery and performance of this Agreement by Seller do
not, and the consummation of the Transactions will not, constitute
or result in (i) a breach or violation of, or a default under,
the certificate of incorporation or bylaws of Seller,
(ii) with or without notice, lapse of time or both, a breach
or violation of, a termination (or right of termination) or default
under, the creation or acceleration of any obligations under or the
creation of a charge, pledge, security interest, claim or other
encumbrance on any of the assets of Seller pursuant to any
agreement, lease, sublease, license, contract, note, mortgage,
indenture, deed of trust, franchise, concession, arrangement,
obligation or other understanding (whether written or oral) (each,
a “Contract”) binding upon
Seller or, assuming (solely with respect to performance of this
Agreement and consummation of the Transactions) compliance with the
matters referred to in Section 4.3(a), under any Law to which
Seller is subject, or (iii) any change in the rights or
obligations of any party under any Contract binding upon Seller,
except, in the case of clause (ii) or (iii) above, any such
breach, violation, termination, acceleration, pledge, security
interest, claim or other encumbrance, or change, as would not,
individually or in the aggregate, be reasonably likely to have a
Material Adverse Effect. Section 4.3(b) of the Seller Disclosure
Letter sets forth a correct and complete list of Material Contracts
pursuant to which a notice, consent, waiver or other similar action
is required for the consummation of the Transactions.

 



(c)           Seller
is not a party to or bound by any non-competition Contract or other
Contract, in each case, that purports to limit, in any material
respect, Seller’s ability (or after the Closing,
Buyer’s ability) to conduct or operate the Business,
including (i) the development, commercialization, manufacture,
marketing, sale or distribution of any product that is being
developed, manufactured, marketed, sold or distributed by Seller or
any of its Subsidiaries with respect to the Business (each such
product, a “Seller
Product”) that is material or would reasonably be
expected to become material to the Business or (ii) the manner or
locations in which any of them may so engage in any business with
respect to the Seller Products.

 


 



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4.4.           Seller
Reports; Financial Statements

 



(a)           Seller
has delivered to Buyer the following financial statements: (i) the
unaudited gross profit and net revenue of the Business for the
three-month period ended March 31, 2020 attached hereto as
Section
4.4(a)(i) of the Seller Disclosure
Letter (the “Interim
Financial Statements”) and (ii) the unaudited gross
profit and net revenue of the Business for the fiscal year ended
December 31, 2019 attached hereto as Section 4.4(a)(ii) of the Seller Disclosure
Letter (the “Annual
Financial Statement” and, together with the Interim
Financial Statements, the “Financial Statements”).
The Financial Statements fairly present the net revenue and gross
profit of the Business for the periods covered thereby, are
consistent with the books and records of Seller and have been
prepared in accordance with GAAP. The Financial Statements do not
reflect any transactions which are not bona fide transactions and
do not contain any untrue statements of a fact or omit to state any
fact necessary to make the statements contained therein, in light
of the circumstances in which they were made, not
misleading.

 


(b)           Each
of the Annual Financial Statements and Interim Financial Statements
fairly presents, in all material respects, the gross profit and net
revenue of the Business, in each case in accordance with GAAP
consistently applied during the periods involved, except as may be
noted therein.

 


4.5.           Absence
of Certain Changes

 


.
Except as expressly contemplated by this Agreement, since the date
of the Interim Financial Statements, (i) Seller has conducted
the Business in the ordinary course of such businesses, and (ii)
there has not been with respect to the Business any event, change
in circumstances or effect involving, or other change in, the
financial condition, properties, assets, liabilities, business or
results of their operations or any circumstance, occurrence or
development, except as would not, individually or in the aggregate,
have or be reasonably likely to have a Material Adverse
Effect.

 


4.6.           Litigation
and Liabilities

 


(a)           With
respect to the Business, there is no material Action pending or, to
the Knowledge of Seller, threatened against Seller or any of its
Subsidiaries or the Business or in respect of the Acquired
Assets.

 


(b)           With
respect to the Business, none of Seller or any of its Subsidiaries
or any of their respective businesses or assets (including the
Acquired Assets) is party to or subject to the provisions of any
material order, writ, judgment, award injunction or decree of any
Governmental Entity or any arbitrator.

 



(c)           Except
as set forth in Section 4.6(c) of the Seller Disclosure
Letter, Seller does not have any liability related to the Business
other than (i) liabilities set forth in the Financial Statements,
(ii) liabilities which have arisen after the date of the Interim
Financial Statements in the ordinary course of business (none of
which is a liability for breach of contract, breach of warranty,
tort, infringement, violation of Law, claim or lawsuit);
(iii) Excluded Liabilities (including any liabilities incurred
in connection with the transaction contemplated hereby); and (iv)
liabilities for future performance under any Contract related to
the Business.

 


 



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4.7.           Compliance
with Laws; Permits

 



(a)           Since
May 7, 2018, the Business has been and is being conducted in
compliance in all material respects with all applicable federal,
state, local or foreign law, statutes or ordinances, common law, or
any rule, regulation, judgment, order, writ, injunction, decree,
arbitration award, license or permit of any Governmental Entity
(collectively, “Laws”). No Action by any
Governmental Entity with respect to the Business is pending or, to
the Knowledge of Seller, threatened, nor has any Governmental
Entity threatened to conduct the same. No material change is
required in Seller’s processes, properties or procedures to
comply with any such Laws; and Seller has not received any written
notice of any material noncompliance with any such Laws that has
not, to the Knowledge of Seller, been cured as of the date of this
Agreement. Seller has obtained and is in compliance with all
permits, licenses, certifications, approvals, registrations,
consents, authorizations (including marketing authorizations,
pre-market approvals, clearances, CE Marking), franchises,
variances, exemptions and orders issued or granted by a
Governmental Entity or any Notified Bodies, as applicable in the
jurisdiction concerned (collectively “Permits”), necessary to
conduct the Business as currently conducted. A list of each
material Permit with respect to the Business is set forth on
Section
4.7(a) of the
Seller Disclosure Letter. All Permits are valid and in full force
and effect except for suspensions, cancellations, delays in filing
reports or violations which would not, individually or in the
aggregate, have or be reasonably expected to have a Material
Adverse Effect. No notification to, or consent from any
Governmental Entity is required in order for the Permits to remain
in full force and effect immediately following the
Closing.

 


(b)           None
of Seller or any of its Subsidiaries or, to the Knowledge of
Seller, any of each of their respective directors, officers,
employees, consultants, sales representatives, distributors or
agents, in such capacity and on behalf of Seller, has (i) used any
funds for unlawful contributions, gifts, entertainment or other
unlawful payments relating to political activity or (ii) violated,
directly or indirectly, any applicable money laundering or
anti-terrorism Law or directly or indirectly lent, contributed or
otherwise made available any funds to any Person for the purpose of
financing the activities of any Person currently targeted by any
U.S. sanctions administered by OFAC. Seller, its Subsidiaries, and
to the Knowledge of Seller, its Affiliates and each of their
respective directors, officers, employees, consultants, sales
representatives, distributors, agents and business partners have
complied at all times, and are in compliance in all material
respects, with all applicable U.S. and non-U.S. anti-corruption and
anti-bribery Laws with respect to Seller, including the U.S.
Foreign Corrupt Practices Act (15 U.S.C. §§ 78dd-1 et
seq.). In this regard, Seller, its Subsidiaries and, to the
Knowledge of Seller, its Affiliates and each of their respective
directors, officers, employees, consultants, sales representatives,
distributors, agents and business partners, in such capacity and on
behalf of Seller, have not given, offered, agreed or promised to
give, or authorized the giving, directly or indirectly, of any
money or other thing of value to any Person as an inducement or
reward for favorable action or forbearance from action or the
exercise of influence.  Seller, its Subsidiaries and, to
the Knowledge of Seller, its Affiliates have instituted and
maintain policies and procedures designed to ensure, and which are
reasonably expected to be effective to ensure, continued compliance
with any such U.S. and non-U.S. anti-bribery, anti-corruption money
laundering and anti-terrorism Laws.

 


4.8.           Material
Contracts

 



(a)           Section
4.8(a) of the
Seller Disclosure Letter lists each of the following Contracts (x)
by which any of the Acquired Assets are bound or affected or (y) to
which Seller is a party or by which it is bound in connection with
the Business or the Acquired Assets:

 


(i)           any
Contract that is reasonably expected to require either
(x) annual payments to or from Seller of more than
$250,000 or (y) aggregate payments to or from Seller for more
than $500,000;

 


 



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(ii)           any
Contract for the purchase, sale or lease of real or personal
property or any option to purchase, sell or release real or
personal property, in either case, that provides for aggregate
annual payments by Seller in an amount exceeding
$250,000;

 


(iii)           any
Contract (x) with any customer that is one of the Top Customers or
(y) with any supplier that is one of the Top
Suppliers;

 


(iv)           any
Contract that contains any provision expressly requiring Seller to
purchase or sell goods or services exclusively to or from another
Person or that otherwise purports to limit either the type of
business in which Seller (or after the Closing, Buyer or any of its
Affiliates) may engage or the manner or locations in which any of
them may so engage in any business;

 


(v)           any
Contract that would reasonably be likely to require the disposition
of any asset, line of business or product line of Seller or
restrict the disposition of the same by Seller (or after the
Closing, Buyer or any of its Affiliates);

 


(vi)           any
Contract that grants “most favored nation” status
(including any that, after the Closing, would bind Buyer or any of
its Affiliates);

 


(vii)           any
Contract that prohibits or limits the rights of Seller to make,
sell or distribute any products or services (of after the Closing,
Buyer or any of its Affiliates);

 


(viii)          
any Contract to which Seller is a party, or by which any of them
are bound, the ultimate contracting party of which is a
Governmental Entity (including any subcontract with a prime
contractor or other subcontractor who is a party to any such
contract);

 


(ix)           any
Contract pursuant to which, other than a Contract entered into in
the ordinary course of Seller’s business, (A) Seller grants
to any third party any license, release, covenant not to sue or
similar right with respect to Owned Intellectual Property, or (B)
Seller receives a license, release, covenant not to sue or similar
right with respect to any Intellectual Property owned by a third
party (other than generally commercially available software);
and

 



(x)           any
other Contract or group of related Contracts that, if terminated or
subject to a default by any party thereto, would, individually or
in the aggregate, be reasonably likely to have a Material Adverse
Effect (the Contracts described in clauses (i) - (x), together
with all exhibits and schedules to such Contracts, being the
“Material
Contracts”).

 


(b)           A
true and correct copy of each Material Contract has previously been
delivered to Buyer. Each Material Contract is valid and binding on
Seller, as the case may be, except for the Enforceability Exception
and, to the Knowledge of Seller, each other party thereto, and is,
in all material respects, in full force and effect (except for
those Contracts that have expired in accordance with their terms).
There is no default under any Material Contracts by Seller and no
event has occurred that with the lapse of time or the giving of
notice or both would constitute a default thereunder by Seller,
except as would not, individually or in the aggregate, be
reasonably likely to have a Material Adverse Effect.

 


 



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4.9.           Property

 



(a)           Neither
Seller nor any of its Subsidiaries owns any real property parcels.
Section
4.9(a) of the
Seller Disclosure Letter sets forth a true, complete and accurate
list of all leases, subleases or other occupancy arrangement with
respect to the Business pursuant to which Seller or any of its
Subsidiaries is a party or has a right to use the real property
owned by another Person (the “Leases”), including the
address or location and use of the subject Leased Real
Property.

 


(b)           Each
of Seller and its Subsidiaries that leases Leased Real Property
pursuant to a Lease has a valid leasehold interest therein, free
and clear of all Liens, except as would not reasonably be expected
to materially and adversely affect the continued use of the
property for the purposes for which the property is being used by
Seller and its Subsidiaries.

 


(c)           There
are no Contracts giving any Person other than Seller or any of its
Subsidiaries any right to access, use or occupy any portion of the
Leased Real Property, and there is no Person, other than Seller or
any of its Subsidiaries, in possession or having any right to
occupy any of the Leased Real Property. Neither Seller nor any of
its Subsidiaries has, and, to the Knowledge of Seller, no landlord
of any Leased Real Property has, exercised any option or right to
terminate, renew or extend or otherwise materially affect the
rights or obligations of the tenant under any Lease. True, complete
and accurate copies of all Leases have been made available to
Buyer.

 


(d)           The
ownership, occupancy, use and operation of the Leased Real Property
does not violate in any material respect any instrument of record
or Contract affecting such property.

 


(e)           There
are no pending or, to the Knowledge of Seller, threatened (i)
appropriation, condemnation, eminent domain or like Actions
relating to the Leased Real Property or (ii) Actions to change the
zoning classification, variance, special use, or other applicable
land use Law of any portion or all of the Leased Real
Property.

 


4.10.       
Environmental Matters. Except for such
matters as would not be reasonably likely to have a Material
Adverse Effect: (a) Seller and its Subsidiaries are and since
May 7, 2018, have been in compliance with Environmental Law
with respect to the Leased Real Property; (b) there has been
no release or threatened release of any Hazardous Substances on the
Leased Real Property (including soils, groundwater, surface water,
buildings or other structures); (c) there has been no release
or threatened release of Hazardous Substances on property formerly
owned or operated by Seller or any of its Subsidiaries in
connection with the Business during the time of Seller’s or
Subsidiaries’ period of ownership or operation;
(d) neither Seller nor any of its Subsidiaries has received
any notice, demand, letter, claim or request for information, in
each case in writing, alleging that Seller or any of its
Subsidiaries may be in violation of any Environmental Law or
alleging that Seller or any of its Subsidiaries is responsible for
the investigation or remediation of a release of Hazardous
Substance at a property not owned or operated by Seller or any
Subsidiary; and (e) neither Seller nor any of its Subsidiaries
is subject to any order, decree, or injunction with any
Governmental Entity relating to liability under any Environmental
Law or relating to Hazardous Substances. Seller has delivered to
Buyer true and complete copies of all material environmental
reports, studies, assessments, sampling data and other
environmental information in its possession relating to the Leased
Real Property.

 


 



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4.11.                      Taxes

 


(a)           Seller
and each of its Subsidiaries (i) have duly and timely filed
(taking into account any extension of time within which to file)
all Tax Returns required to be filed by any of them and all such
Tax Returns were and are complete and accurate in all respects;
(ii) have paid all Taxes that are required to be paid (whether
or not shown on the Tax Returns or Tax assessment made in writing
or deficiency asserted in writing by the relevant Governmental
Entity); (iii) have properly withheld and paid to the
appropriate Governmental Entity all Taxes that Seller or any of its
Subsidiaries are or were obligated to withhold and pay from amounts
owing to any employee, creditor or third party, and (iv) have
not waived any statute of limitations with respect to Taxes or
agreed to any extension of time with respect to a Tax assessment or
deficiency.

 


(b)           There
are no Actions either pending or threatened in writing in respect
of Taxes or Tax matters of the Seller or any of its
Subsidiaries.

 


(c)           There
is no Lien, other than Permitted Liens, on any of the Acquired
Assets that arose in connection with any failure (or alleged
failure) to pay, or delay (or alleged delay) in paying, any
Tax.

 


(d)           No
written claim has ever been made by a Governmental Entity in a
jurisdiction where Seller or any of its Subsidiaries do not file
Tax Returns that Seller or its Subsidiary is or may be subject to
taxation by that jurisdiction.

 


(e)           There
are no Tax rulings, requests for rulings or closing Contracts in
effect with any Governmental Entity relating to the Business and
Acquired Assets that will affect the Business and Acquired Assets
for any taxable period ending after the Closing Date.

 


4.12.                      Labor
Matters

 


(a)           (i)
Neither Seller nor any of its Subsidiaries is a party to, bound by
or subject to any collective bargaining agreement or other similar
type of contract with any labor union, (ii) neither Seller nor any
of its Subsidiaries has agreed to recognize any union or other
collective bargaining representative, (iii) no union or group of
employees has made a pending demand for recognition and there are
no representation proceedings or petitions seeking a representation
proceeding presently pending or, to the Knowledge of Seller,
threatened to be brought or filed, with the National Labor
Relations Board and (iv) no union or collective bargaining
representative has been certified as representing any employees of
any of Seller or any of its Subsidiaries and no organizational
attempt has been made or, to the Knowledge of Seller, threatened by
or on behalf of any labor union or collective bargaining
representative with respect to any employees of Seller or any of
its Subsidiaries. Within the last three (3) years, neither Seller
nor any of its Subsidiaries nor any of their respective
predecessors has experienced any labor strike, slowdown or stoppage
or any other material labor difficulty, and, to the Knowledge of
Seller, there are no facts or circumstances that might lead to any
such labor dispute.

 


 



- 15 -








 






 


 

 



(b)           Section
4.12(b)-1 of the Seller Disclosure
Letter lists, to the extent applicable, as of the date hereof, for
each employee, consultant and independent contractor of the
Business, his or her: (i) name; (ii) title; (iii) location; (iv)
date of hire; (v) exempt/non-exempt status; (vi) employment status
(i.e., whether full-time, temporary, leased, etc.); (vii) active or
inactive status (including type of leave, if any); (viii) accrued
but unused vacation; and (ix) current annual base salary or
hourly wage rate (or other compensation) and target
bonus/commission for the current year. Except as set forth on
Section
4.12(b)-2 of the Seller Disclosure
Letter, neither Seller nor any of its Subsidiaries employs or
engages any employee, consultant or independent contractor in
connection with the Business who cannot be dismissed immediately,
whether currently or immediately after the Transactions, without
notice or cause and without further liability to Seller or any of
its Subsidiaries.

 


(c)           With
respect to the employees of Seller and its Subsidiaries, during the
last twelve (12) months, there has been no mass layoff, plant
closing or shutdown that could implicate the Worker Adjustment
Retraining & Notification Act of 1988, as amended, or any
similar Law. All current employees of the Business who work in the
United States are, and all former employees of the Business who
worked in the United States whose employment terminated
(voluntarily or involuntarily) prior to the Closing Date were,
legally authorized to work in the United States. Seller and its
Subsidiaries, as applicable, have completed and retained, in all
material respects, the necessary employment verification paperwork
under the Immigration Reform and Control Act of 1986 for all
employees of the Business hired prior to the Closing Date, and at
all times prior to the Closing Date, Seller and its Subsidiaries
were in compliance, in all material respects, with both the
employment verification provisions (including the paperwork and
documentation requirements) and the anti-discrimination provisions
of the Immigration Reform and Control Act of 1986. All individuals
who perform services for Seller or any of its Subsidiaries with
respect to the Business have been classified correctly in
accordance with the terms of each Employee Plan and ERISA, the
Code, the Fair Labor Standards Act and all other applicable Laws,
as employees, independent contractors or leased employees, and
neither Seller nor any of its Subsidiaries received notice to the
contrary from any Person or Governmental Entity.

 


(d)           Neither
Seller nor any of its Subsidiaries are a party to, or otherwise
bound by, any consent decree with, or citation by, any Governmental
Entity relating to employees or employment practices. Neither
Seller nor any of its Subsidiaries, nor any of their respective
executive officers, has ever received any written notice of intent
by any Governmental Entity responsible for the enforcement of labor
or employment laws to conduct an investigation relating to Seller
or any of its Subsidiaries and, to the Knowledge of Seller, no such
investigation is in progress. Seller and its Subsidiaries are in
compliance with all applicable Laws respecting labor and
employment, including termination of employment or failure to
employ, employment practices, terms and conditions of employment,
immigration, wages and hours, working time, employment standards,
civil rights, discrimination and retaliation, occupational safety
and health, family or medical leave, exempt/non-exempt and
contingent worker classifications and workers’ compensation.
There are no labor or employment actions pending, or to the
Knowledge of Seller threatened, between Seller and its Subsidiaries
and any employees, current or former, of the Business.

 


 



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(e)           Neither
Seller nor any of its Subsidiaries is liable for any payment to any
trust or other fund or to any Governmental Entity with respect to
unemployment compensation benefits, social security or other
benefits or obligations for employees of the Business (other than
routine payments, contributions or deductions to be made in the
ordinary course of business). There are no pending claims against
Seller or any of its Subsidiaries under any workers compensation
plan or policy or for long term disability.

 


4.13.                      Intellectual
Property

 



(a)           Section
4.13(a) of the
Seller Disclosure Letter sets forth a true and complete list of all
Owned Intellectual Property and all Intellectual Property that is
licensed to Seller under an Assumed Contract (“Licensed Intellectual
Property”) that is registered or subject of a pending
application and included in the Acquired Assets, indicating for
each item the registration or application number, the date of
filing and issuance, the applicable filing jurisdiction, names of
all current applicant(s) and registered owner(s), as applicable.
Seller and its Subsidiaries have complied in all material respects
with all necessary requirements to preserve and maintain each item
of Registered Owned Intellectual Property in full force and
effect.

 



(b)           Seller
and its Subsidiaries solely and exclusively own, and except as set
forth on Section
4.13(b) of the Seller Disclosure Schedule, have filed
recordation of current ownership with the applicable Government
Entity, all Intellectual Property owned or purported to be owned by
Seller or any of its Subsidiaries and included in the Acquired
Assets or are used in or held for use in the Business as presently
conducted (“Owned
Intellectual Property”), free and clear of Liens,
other than Permitted Liens, and none of the Transactions will
impair or otherwise adversely affect any such rights.

 


(c)           The
products and services of, and conduct of the businesses of, Seller
and its Subsidiaries as currently sold or conducted, and the
labeling, manufacture, use, sale, offer for sale, importation, and
other distribution or commercial exploitation of the Seller
Products, as applicable do not infringe upon, dilute,
misappropriate or otherwise violate the Intellectual Property
rights of any third party. Neither Seller nor any of its
Subsidiaries has received any written notice from a third party
within the past three years, and there are no pending or, to the
Knowledge of Seller, threatened claims (including in the form of
offers or invitations to license) that (i) assert the infringement,
dilution, misappropriation or other violation of any Intellectual
Property rights of a third party or (ii) except to the extent part
of the prosecution history of any Owned Intellectual Property,
challenge the validity, enforceability, priority or registrability
of, or any right, title or interest of Seller or any of its
Subsidiaries with respect to, any Owned Intellectual Property and
Licensed Intellectual Property.

 


(d)           To
the Knowledge of Seller, no third party is infringing,
misappropriating, misusing, diluting or violating any Owned
Intellectual Property and Licensed Intellectual Property. None of
Seller or any of its Subsidiaries has made any written or, to the
Knowledge of Seller, oral claim against any third party alleging
the infringement, misappropriation, misuse, dilution or violation
of any Owned Intellectual Property and Licensed Intellectual
Property.

 


 



- 17 -








 






 


 

 


(e)           Seller
and its Subsidiaries have taken all reasonable measures to protect
and maintain the confidentiality of all Trade Secrets that are
owned or held by Seller and its Subsidiaries, as applicable, and
included in the Acquired Assets and to the Knowledge of Seller,
there has been no unauthorized disclosure by Seller or any of its
Subsidiaries of any such Trade Secrets.

 


(f)           Seller
and its Subsidiaries have executed written proprietary information
and inventions Contracts with all of their past and present
employees and contractors who are or who were involved in the
development of the Seller Products pursuant to which such employees
and contractors have assigned to Seller and its Subsidiaries all
right, title and interest in and to all Intellectual Property for
the Seller Products created within the scope of their work for the
Seller and its Subsidiaries and have agreed to hold all Trade
Secrets of Seller and its Subsidiaries in confidence both during
and after the term of their employment or engagement by the Seller
and its Subsidiaries.

 


(g)           To
the Knowledge of Seller, none of the Owned Intellectual Property or
Licensed Intellectual Property is invalid, unenforceable, or
otherwise impaired such that the Buyer will not have full enjoyment
thereof in a manner consistent with operation of the Business as
currently conducted.

 


(h)           To
the Knowledge of Seller, there is no defect in any material systems
and/or equipment currently used in the in the Business that
materially and adversely affects normal and expected operation and
lifespan of such material systems and/or equipment.

 


(i)           Seller
and its Subsidiaries have included notices of Intellectual Property
rights as required by applicable Laws in connection with the Seller
Products sufficient to avoid a loss of enforcement rights and/or
right to collect monetary damages in the event of enforcement of
Owned Intellectual Property.

 



4.14.                      Insurance.
All insurance policies and surety bonds related to the Business
carried by or covering Seller and its Subsidiaries (collectively,
the “Insurance
Policies”) provide coverage in such amounts and with
respect to such risks and losses as is adequate for the Business.
The Insurance Policies are in full force and effect, and, as of the
date of this Agreement, no notice of cancellation has been received
by Seller or any of its Subsidiaries with respect to any Insurance
Policy which has not been cured by the payment of premiums that are
due. All premiums, audits, adjustments or collateralization
requirements on the Insurance Policies have been paid and Seller
and its Subsidiaries have complied in all material respects with
the terms and provisions of the Insurance Policies.

 



4.15.                      Brokers
and Finders. Seller has not
employed any broker or finder or incurred any liability for any
brokerage fees, commissions or finders’ fees in connection
with the Transactions.

 


 



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4.16.                      Customers/Suppliers

 



(a)           Section
4.16(a) of the
Seller Disclosure Letter sets forth the Top Customers of the
Business. As of the date of this Agreement, none of the Top
Customers have canceled or otherwise terminated, or, to the
Knowledge of Seller, threatened to cancel or otherwise terminate
its relationship with Seller or any of its Subsidiaries. As of the
date of this Agreement, neither Seller nor any of its Subsidiaries
have received notice that any such Top Customer intends to cancel
or otherwise materially adversely modify its relationship
(including by seeking to renegotiate contractual terms) with Seller
or any of its Subsidiaries.

 



(b)           Section
4.16(b) of the
Seller Disclosure Letter sets forth the Top Suppliers of the
Business. As of the date of this Agreement, none of the Top
Suppliers have canceled or otherwise terminated, or, to the
Knowledge of Seller, threatened to cancel or otherwise terminate
its relationship with Seller or any of its Subsidiaries. As of the
date of this Agreement, neither Seller nor any of its Subsidiaries
have received notice that any such supplier intends to cancel or
otherwise materially adversely modify its relationship (including
by seeking to renegotiate contractual terms) with Seller or any of
its Subsidiaries.

 


4.17.                      Warranties/Product
Liability. Since May 7, 2018
(a) neither Seller nor any of its Subsidiaries has received any
written notice of any material Action or violation by or before any
Governmental Entity relating to any Seller Product, including the
packaging and advertising related thereto, or any services provided
by Seller or any of its Subsidiaries, nor is there any Action
involving a Seller Product pending or, to the Knowledge of Seller,
threatened by any Person, (b) there has not been, nor is there
under consideration by Seller or any of its Subsidiaries, any
recall of a Seller Product or post-sale warning of a material
nature concerning any Seller Product, (c) there are no pending
or, to the Knowledge of Seller, threatened claims with respect to
any such warranty which would reasonably be expected to be material
to Seller or any Subsidiary or the Business, and (d) there are
no material pending or, to the Knowledge of Seller, threatened
product liability claims with respect to any Seller Product and no
such claims have been settled or adjudicated. The Business and all
Seller Products comply in all material respects with applicable
governmental authorizations and Laws, and to the Knowledge of
Seller, there have not been and there are no material defects or
deficiencies in such Seller Products.

 


4.18.                      Entire
Interest; All Assets. The Acquired
Assets comprise all of the property, assets and rights (including
Intellectual Property) used or held for use primarily in the
Business or necessary to the operation of the Business and are
sufficient for Buyer to continue to conduct the Business from and
after the Closing Date without interruption and in the ordinary
course of business in substantially the same manner as currently
conducted by Seller. No Affiliate of Seller or any other Person
holds any right, title or interest in any of the Acquired Assets
and there are no existing contracts, transactions, indebtedness or
other arrangements, or any related series thereof, between Seller,
on the one hand, and any Affiliates of Seller, on the other hand,
that relate to the Business.

 


 



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4.19.                      Regulatory
Matters

 



(a)           Without
limitation of Section 4.7(a), Seller and its
Subsidiaries and to the Knowledge of Seller its respective
directors, officers, employees, and agents (while acting in such
capacity) are, and have been since May 7, 2018, in compliance,
and the Business of Seller and its Subsidiaries has been operated
by them in accordance, in all material respects with all Laws
relating to health care regulatory matters, including to the extent
applicable, each of the following: (i) all applicable Laws of any
Governmental Entity, including the United States Drug Enforcement
Administration, the United States Department of Health and Human
Services and its constituent agencies, the Centers for Medicare
& Medicaid Services, the Office of Inspector General and the
United States Food and Drug Administration (the “FDA” and, collectively
with other applicable U.S., state or foreign regulatory authorities
and any Notified Bodies, “Regulatory Authorities”),
including, to the extent applicable, the federal Food, Drug, and
Cosmetic Act (21 U.S.C. § 321 et seq.) (the
“FDCA”),
the Controlled Substances Act (21 U.S.C. § 801 et seq.), the
federal Anti-kickback Statute (42 U.S.C. § 1320a-7b(b)), the
Anti-Inducement Law (42 U.S.C. § 1320a-7a(a)(5)), the Federal
Civil Monetary Penalties Law (42 U.S.C. §§ 1320a-7a and
1320a-7b), the Stark Law (42 U.S.C. § 1395nn), the Health
Insurance Portability and Accountability Act of 1996 (42 U.S.C.
§ 1320d et seq.), the exclusion laws (42 U.S.C. §
1320a-7), the Physician Payments Sunshine Act (42 U.S.C. §
1320a-7h), the Safe Medical Devices Act of 1990, the implementing
rules and regulations promulgated pursuant to the foregoing laws,
and the Federal Acquisition Regulations (48 C.F.R. Parts 1-53)),
(ii) the drug price reporting requirements of titles XVIII and XIX
of the Social Security Act, (iii) the applicable Laws precluding
off-label marketing of drugs, devices and other health care
products, (iv) all other United States laws and regulations with
respect to the marketing, sale, pricing, price reporting, and
reimbursement of drugs, devices and other health care products,
including the provisions of the Federal False Claims Act, 31 U.S.C.
§3729 et seq., the Medicare Program (Title XVIII of the Social
Security Act), the Medicaid Program (Title XIX of the Social
Security Act), the regulations promulgated pursuant to such Laws,
requirements of the Medicaid Drug Rebate Program (42 U.S.C. §
1396r-8) and any state supplemental rebate program, requirements of
Medicare average sales price reporting (42 U.S.C. § 1395w-3a),
the Public Health Service Act (42 U.S.C. § 256b), the VA
Federal Supply Schedule (38 U.S.C. § 8126) state
pharmaceutical assistance programs and regulations under such Laws,
and (v) any state, local or foreign equivalents to any of the
foregoing. To the Knowledge of Seller, no condition or circumstance
exists, that will (without notice or lapse of time) constitute or
result in a violation by Seller or its Subsidiaries or the Business
of, or a failure on the part of Seller or its Subsidiaries or the
Business to comply with, any such Laws.

 


(b)           Neither
the Business nor any of Seller, its Subsidiaries or any of their
respective officers, directors, employees, or to the Knowledge of
Seller, any consultants, subcontractors or agents of Seller or any
of its Subsidiaries (i) is excluded or debarred under the
Generic Drug Enforcement Act of 1992 or any government health care
program, including Medicare and Medicaid; (ii) has had a civil
monetary penalty assessed against it, him or her under Section
1128A of the Social Security Act of 1935, codified at Title 42,
Chapter 7, of the United States Code; (iii) is currently
listed on the General Services Administration/System for Award
Management published list of parties excluded from federal
procurement programs and non-procurement programs; (iv) to the
Knowledge of Seller, is the target or subject of any current or
threatened investigation by a Governmental Entity relating to the
violation of, or failure to comply with, any of the Laws referenced
in Section
4.19(a) applicable
to any Seller Product or any government health care program-related
offense or violation; or (v) is currently charged with or has been
convicted of any criminal offense relating to the delivery of an
item or service under any government health care program. No
claims, actions, proceedings or investigations that would
reasonably be expected to result in any of the foregoing are
pending, and Seller has not received written notice that any such
claims, actions, proceedings or investigations are threatened
against Seller, Seller’s Subsidiaries, or any of their
respective officers or key employees. To the Knowledge of Seller,
there are no facts or circumstances that could give rises to any
such claims, actions, proceedings or investigations for
non-compliance with any applicable Laws referenced in Section 4.19(a).

 


 



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(c)           (i)
To the Knowledge of Seller, there is no pending action,
investigation or inquiry of any type by any Regulatory Authority
(other than non-material routine or periodic inspections or
reviews) against Seller or its Subsidiaries relating to the
Business or the Seller Products; (ii) since May 7, 2018, no
Seller Product has been recalled, suspended or discontinued; and
(iii) since May 7, 2018, none of Seller or any of its
Subsidiaries has received any written notification, correspondence
or any other written communication from any Governmental Entity,
including any Regulatory Authority, of potential or actual material
non-compliance relating to the Business by, or liability of, Seller
or any of its Subsidiaries, under any of the Laws referenced in
Section 4.19(a).

 


(d)           None
of Seller nor any of its Subsidiaries, nor to the Knowledge of
Seller, any contract manufacturer, contract research organization
or distributor has received, since May 7, 2018, any FDA form
483s, “warning letters,” or other written notice from
the FDA or any other Governmental Entity alleging or asserting
noncompliance with any applicable Laws or Permits in connection
with the Business or any Seller Product.

 


(e)           To
the Knowledge of Seller, there are no facts or circumstances
indicating that any Permit, including an applicable marketing
authorization for a Seller Product, will be withdrawn or that there
has been any failure to receive or obtain any required Permit,
including any marketing authorization. Neither Seller nor its
Subsidiaries has received any written notification from the FDA or
other Governmental Entity requesting that Seller or its
Subsidiaries make any material change in the labeling of any Seller
Products.

 


(f)           The
manufacture of the Seller Products by Seller and, to the Knowledge
of Seller, by third parties is and has been since May 7, 2018
conducted in compliance in all material respects with current Good
Manufacturing Practice. To the Knowledge of Seller, no Seller
Product has been adulterated within the meaning of 21 U.S.C. §
351 (or similar applicable Law) or misbranded within the meaning of
21 U.S.C. § 352 (or similar applicable Law).

 


(g)           None
of Seller or any of its Subsidiaries is a party to any corporate
integrity agreements, monitoring agreements, consent decrees,
settlement orders, or other similar written agreements, in each
case, entered into with or imposed by any Regulatory Authority,
and, to the Knowledge of Seller, no such agreement has been
threatened in writing. Seller and its Subsidiaries have not engaged
in any voluntary disclosure or self-disclosure to any Regulatory
Authority concerning any alleged, potential or actual
non-compliance with any Laws related to the Business or any Seller
Product, and, to the Knowledge of Seller, no such self-disclosure
to any Regulatory Authority is warranted.

 


4.20.                      Title
to Tangible Assets. Seller has good
and marketable title to or a valid leasehold interest in all of the
Acquired Assets, free and clear of all Liens (other than Permitted
Liens). All of the tangible personal property included among the
Acquired Assets are, in all material respects, in good operating
condition, maintenance and repair and are suitable and adequate for
the uses to which they are being put (with due consideration for
reasonable wear and tear and the age of each specific tangible
asset). Upon the Closing, Buyer will have good and transferable
title to the Acquired Assets, free and clear of any Liens (other
than Permitted Liens), and will own, or have a valid legal right to
use, sufficient property, assets and other rights (whether tangible
or intangible) to be able to operate and conduct the Business in
substantially the same manner as conducted as of the date of this
Agreement.

 


 



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4.21.                      Inventory.
All of the items in Seller’s Inventory are (i) of good and
merchantable quality, fit for the purpose for which they are
intended, and saleable and useable in the ordinary course of
business; (ii) free of defects and damage; and (iii) in quantities
adequate and not excessive in relation to the circumstances of the
Business and in accordance with Seller’s past inventory
stocking practices, except, in each case, as would not,
individually or in the aggregate, be reasonably likely to have a
Material Adverse Effect.

 


4.22.                      Fraudulent
Conveyance. Seller is not
entering into the Transactions with the intent to hinder, delay or
defraud any Person to which it is, or may become, indebted. The
Purchase Price is not less than the reasonably equivalent value of
the Acquired Assets less the Assumed Liabilities. Seller’s
assets, at a fair valuation, exceed its liabilities, and Seller is
able, and will continue to be able after the Closing, to meet its
debts as they mature and will not become insolvent as a result of
the Transactions. There are no “bulk sales” Laws
applicable to the Transactions.

 


ARTICLE
V

 


Representations
and Warranties of Buyer

 


Except
as set forth in the corresponding sections or subsections of the
Disclosure Letter delivered to Seller by Buyer contemporaneously
with this Agreement (the “Buyer Disclosure Letter”)
(it being agreed that disclosure of any item in any section or
subsection of the Buyer Disclosure Letter will be deemed disclosure
with respect to any other section or subsection of the Buyer
Disclosure Letter only to the extent that the relevance of such
item to such section or subsection is readily apparent on its
face), Buyer hereby represents and warrants to Seller as
follows:

 



5.1.           Organization,
Good Standing and Qualification. Buyer is a legal
entity duly organized, validly existing and in good standing under
the Laws of its jurisdiction of organization and has all requisite
corporate or similar power and authority to own, lease and operate
its properties and assets and to carry on its business as presently
conducted. Buyer is qualified to do business and is in good
standing as a foreign corporation or other legal 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 organized,
qualified or in such good standing, or to have such power or
authority, would not, individually or in the aggregate, reasonably
be expected to prevent, materially delay or materially impair the
ability of Buyer to consummate the Transactions. Prior to the date
of this Agreement, Buyer has made available to Seller a complete
and correct copy of the certificate of incorporation and bylaws or
comparable governing documents of Buyer, each as amended to the
date of this Agreement and each as so delivered is in full force
and effect.

 


 



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5.2.           Corporate
Authority. Buyer has all
requisite corporate power and authority and has taken all corporate
action necessary in order to execute, deliver and perform its
obligations under this Agreement and to consummate the
Transactions. This Agreement has been duly executed and delivered
by Buyer and is a valid and binding Contract of, Buyer, enforceable
against Buyer in accordance with its terms, subject to the
Enforceability Exception.

 



5.3.           Governmental
Filings; No Violations; Etc.

 





(a)           No
notices, reports or other filings are required to be made by Buyer
with, nor are any consents, registrations, approvals, permits or
authorizations required to be obtained by Buyer from, any
Governmental Entity in connection with the execution, delivery and
performance of this Agreement by Buyer and the consummation of the
Transactions, except for (i) applicable requirements, if any, of
(A) the Exchange Act, and (B) state securities or “blue
sky” Laws, and (ii) the filing of customary applications and
notices, as applicable with any Governmental Entity.

 


(b)           The
execution, delivery and performance of this Agreement by Buyer do
not, and the consummation by Buyer of the Transactions will not,
constitute or result in (i) a breach or violation of, or a
default under, the certificate of incorporation or bylaws of Buyer,
(ii) with or without notice, lapse of time or both, a breach
or violation of, a termination (or right of termination) or a
default under, the creation or acceleration of any obligations
under or the creation of a Lien on any of the assets of Buyer
pursuant to, any Contracts binding upon Buyer or, assuming (solely
with respect to performance of this Agreement and the consummation
of the Transactions) compliance with the matters referred to in
Section
5.3(a), under any Law to which
Buyer is subject; or (iii) any change in the rights or
obligations of any party under any of such Contracts, except, in
the case of clause (iii) above, as would not, individually or
in the aggregate, reasonably be expected to prevent, materially
delay or materially impair the ability of Buyer to consummate the
Transactions.

 


5.4.           Litigation.
As of the date of this Agreement, there are no Actions pending or,
to the Knowledge of Buyer, threatened against Buyer that seek to
enjoin, or would reasonably be expected to have the effect of
preventing or making illegal, any of the Transactions, except as
would not, individually or in the aggregate, reasonably be expected
to prevent, materially delay or materially impair the ability of
Buyer to consummate the Transactions.

 


5.5.           Sufficiency
of Funds. On the Closing
Date, Buyer will have sufficient funds to pay (i) the Purchase
Price in accordance with Article II and to consummate the
Transactions and (ii) all fees and expenses required to be paid by
Buyer in connection therewith.

 



5.6.           Brokers.
Except as set forth in Section 5.6 of the Buyer Disclosure
Letter, no broker, investment banker or other Person is entitled to
any broker’s, finder’s or other similar fee or
commission in connection with the Transactions based upon
arrangements made by or on behalf of the Buyer.

 


 



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5.7.           Disclaimer.
BUYER ACKNOWLEDGES AND AGREES THAT EXCEPT AS SET FORTH IN ARTICLE
IV, SELLER IS NOT MAKING ANY REPRESENTATION OR WARRANTY OF ANY
KIND, EXPRESS OR IMPLIED, RESPECTING THE ACQUIRED ASSETS, AS TO
MERCHANTABILITY OF FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER
MATTER. Buyer is not relying on any representation or warranty
other than those expressly set forth in this
Agreement.

 


ARTICLE
VI

 


Covenants

 



6.1.           Transfer
Taxes. Any transfer,
sales, use, recording, value-added or similar Taxes (including any
registration and/or stamp Taxes, levies and duties) that may be
imposed by reason of the sale, assignment, transfer and delivery of
the Acquired Assets to Buyer or its permitted assignees, the
assumption by Buyer or its permitted assignees of the Assumed
Liabilities or in connection with this Agreement (the
“Transfer
Taxes”) shall be the responsibility of and timely paid
one-half by Seller and one-half by Buyer, and Seller, at its own
expense, shall timely file all Tax Returns required to be filed in
connection with the payment of such Taxes. The Parties hereto and
their Affiliates shall cooperate in connection with the filing of
any Tax Return for Transfer Taxes including joining in the
execution of such Tax Return for Transfer Taxes and in obtaining
all available exemptions from such Transfer Taxes. To the extent
permitted pursuant to applicable Law, Buyer and Seller shall use
commercially reasonable efforts to minimize or avoid any Transfer
Taxes, if any, arising out of the transactions contemplated by this
Agreement.

 


6.2.           Commercially
Reasonable Efforts. Without limiting
either Party’s other obligations hereunder, upon the terms
and subject to the conditions set forth in this Agreement, each of
the Parties agrees to use commercially reasonable efforts to take,
or cause to be taken, all actions, and to do, or cause to be done,
and to assist and cooperate with the other Party in doing, all
things necessary, proper or advisable to consummate and make
effective, in the most expeditious manner practicable, the
Transactions. Seller agrees, on a commercially reasonable basis and
at Buyer’s expense as to any out-of-pocket Seller’s
costs, to provide reasonably requested assistance in connection
with the filing, prosecution and/or enforcement of any Intellectual
Property within the Acquired Assets.

 


 



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6.3.           Post-Closing
Access.  From and
after the Closing, Buyer shall, at Seller’s expense,
(i) give Seller and its Representatives reasonable access,
during normal business hours and upon reasonable prior notice, to
the offices, properties and records that are Acquired Assets
relating to the conduct of the Business on or before the Closing
Date, (ii) furnish to Seller and its Representatives such financial
and operating data and other information relating to the conduct of
the Business on or before the Closing Date, and (iii) cause the
employees, counsel, auditors and other Representatives of Buyer, to
cooperate with Seller and its Representatives, in each case, to the
extent reasonably requested by Seller in connection with
accounting, Tax, legal defense and other similar needs. From and
after the Closing, Seller shall, and shall cause its Subsidiaries
to, at Buyer’s expense, (A) give Buyer and its
Representatives reasonable access, during normal business hours and
upon reasonable prior notice, to the offices, properties and
business records of Seller and its Subsidiaries relating to the
conduct of the Business on or before the Closing Date, (B) furnish
to Buyer and its Representatives such financial and operating data
and other information relating to the conduct of the Business on or
before the Closing Date, and (C) cause the employees, counsel,
auditors and other Representatives of Seller and its Subsidiaries
to cooperate with Buyer and its Representatives, in each case, to
the extent reasonably requested by Buyer in connection with
accounting, Tax, legal defense and other similar needs. Any such
access shall be granted in a manner as not to unreasonably
interfere with the conduct of the business of the Party granting
such access. Notwithstanding the foregoing, either Party may
withhold such access, as and to the extent necessary to avoid
contravention or waiver, as to any document or information the
disclosure of which could reasonably be expected to violate any
Contract or any Law or result in the waiver of any legal privilege
or work-product privilege; provided that to the extent practicable
and in accordance with such Contract or Law, and in a manner that
does not result of the waiver of any such privilege, such Party
shall make reasonable and appropriate substitute disclosure
arrangements under circumstances in which these restrictions apply;
provided further, that nothing in this Section 6.3 shall limit in any respect
any rights any Party may have with respect to discovery or the
production of documents or other information in connection with any
litigation.

 


6.4.           Publicity.
The initial press release regarding the Asset Transaction pursuant
to this Agreement will be a joint press release and thereafter
Seller and Buyer each will consult with each other prior to issuing
any press releases or otherwise making public announcements with
respect to the Asset Transaction and the other Transactions and
prior to making any filings with any third party and/or any
Governmental Entity with respect thereto, except as may be required
by Law or by the request of any Governmental Entity.

 



6.5.           Employees;
Employee Benefits

 



(a)           Prior
to the Closing Date, Buyer may make offers of employment,
contingent on the Closing, on an at-will basis to the employees of
the Business as mutually agreed by Buyer and Seller (such
employees, the “Business Employees”);
provided that Buyer shall undertake to make any such offers in
writing and shall comply with applicable Law. Such Business
Employees who accept Buyer’s offer of employment and commence
working for Buyer or a Subsidiary of Buyer as of the Closing Date
are hereinafter referred to as the “Continuing Employees”.
The Parties agree that the Continuing Employees will not be treated
as incurring a separation from service under Treasury Regulation
Section 1.409A-1(h) for purposes of any Employee Plan, severance or
other deferred compensation plans of Seller.

 


(b)           With
respect to each employee benefit plan maintained by the Buyer or
any of Subsidiary of Buyer in which Continuing Employees become
eligible to participate on or after the Closing, the Continuing
Employees shall be given credit for all service with Seller or a
Subsidiary of Seller, as applicable, for purposes of determining
eligibility to participate and vesting (excluding with respect to
any equity compensation awards) to the same extent as if such
services had been rendered to Buyer or any of its
Affiliates.

 


 



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(c)           As
to the plan years then in place at the Closing, Buyer shall use all
reasonable best efforts to: (i) waive all limitations as to
pre-existing conditions, exclusions, evidence of insurability
requirements, actively-at-work requirements, and waiting periods
with respect to participation and coverage requirements applicable
to the Continuing Employees and their dependents under any welfare
or fringe benefit plan in which the Continuing Employees and their
dependents may be eligible to participate after the Closing; and
(ii) provide each Continuing Employee with credit under any welfare
plan or fringe benefit plan in which the Continuing Employee
becomes eligible to participate after the Closing for any
co-payments and deductibles paid by and out-of-pocket requirements
satisfied by such Continuing Employee for the then current plan
year under the corresponding welfare or fringe benefit plan
maintained by Seller or any Subsidiary of Seller prior to the
Closing.

 


(d)           Notwithstanding
the foregoing, this Section 6.5 is not intended to and
shall not (i) create any third party rights, (ii) amend any
Employee Plan, (iii) require Buyer or its Subsidiaries to
continue any employee benefit plan, program, policy agreement or
arrangement beyond the time when it otherwise lawfully could be
terminated or modified, or (iv) provide any Business Employee or
Continuing Employee with any rights to continued employment,
severance pay or similar benefits following any termination of
employment.

 


6.6.           Expenses.
All costs and expenses incurred in connection with this Agreement
and the Transactions will be paid by the Party incurring such
expense.

 



6.7.           Non-Competition;
Non-Solicitation; Confidential Business Information

 



(a)           For
a period of three years commencing on the Closing Date (the
“Restricted
Period”), Seller will not, and will not permit any of
its Affiliates to, directly or indirectly, (i) engage in or assist
others in engaging in the Restricted Business anywhere in the
world; (ii) have an interest in any Person that engages directly or
indirectly in the Restricted Business anywhere in the world in any
capacity, including as a partner, stockholder, member, employee,
principal, agent, trustee or consultant; or (iii) intentionally
interfere in any material respect with the business relationships
(whether formed prior to or after the date of this Agreement)
between Buyer and customers or suppliers of any Restricted Business
(including the Business). Notwithstanding the foregoing, Seller may
own, directly or indirectly, solely as an investment, securities of
any Person traded on any national securities exchange if Seller is
not a controlling Person of, or a member of a group which controls,
such Person and does not, directly or indirectly, own 5% or more of
any class of securities of such Person.

 


(b)           During
the Restricted Period, Seller will not, and will not permit any of
its Affiliates to, directly or indirectly, hire or solicit any
employee of the Business, Buyer or any of its Affiliates or
encourage any such employee to leave such employment or hire any
such employee who has left such employment, except pursuant to a
general solicitation which is not directed specifically to any such
employees.

 


 



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(c)           From
and after Closing, Seller shall not and shall cause its
Subsidiaries, Affiliates and their respective officers and
directors in each case to whom such information is disclosed not
to, directly or indirectly, disclose, reveal, divulge or
communicate to any Person other than authorized officers, directors
and employees of Buyer or use or otherwise exploit for its own
benefit or for the benefit of anyone other than Buyer, any
Confidential Business Information. Notwithstanding the foregoing,
if Seller or any of its Subsidiaries receives a request or is
required (by deposition, oral questions, interrogatory, request for
documents, subpoena, governmental investigative demand or other
legal or regulatory process or applicable Law) to disclose all or
any part of the Confidential Business Information, Seller shall (i)
to the extent practicable and permissible under applicable Law,
promptly notify Buyer of the existence, terms and circumstances
surrounding such a request and (ii) reasonably cooperate with such
Buyer’s efforts (and at Buyer’s expense) to seek a
protective order or other appropriate remedy. If such protective
order or other remedy is not obtained or if Buyer waives compliance
with the provisions hereof in writing, Seller may disclose only
that portion of Confidential Business Information that it is
advised by counsel is required, by applicable Law, to be disclosed,
and shall reasonably cooperate with Buyer’s efforts (and at
Buyer’s expense) to obtain assurance that confidential
treatment will be accorded such Confidential Business
Information.

 


(d)           The
covenants and undertakings contained in this Section 6.7 relate to matters which are
of a special, unique and extraordinary character and a violation of
any of the terms of this Section 6.7 will cause irreparable
injury to Buyer, the amount of which may be impossible to estimate
or determine and which cannot be adequately compensated.
Accordingly, the remedy at law for any breach of this Section 6.7 will be inadequate, and
Buyer will be entitled to an injunction, restraining order or other
equitable relief from any court of competent jurisdiction in the
event of any breach of this Section 6.7 without the necessity of
proving actual damages or posting any bond whatsoever. The rights
and remedies provided by this Section 6.7 are cumulative and in
addition to any other rights and remedies which Buyer may have
hereunder or at law or in equity.

 


(e)           The
Parties agree that, if any court of competent jurisdiction in a
final nonappealable judgment determines that a specified time
period, a specified geographical area, a specified business
limitation or any other relevant feature of this Section 6.7 is unreasonable, arbitrary
or against public policy, then a lesser time period, geographical
area, business limitation or other relevant feature which is
determined by such court to be reasonable, not arbitrary and not
against public policy may be enforced against the applicable
Party.

 


6.8.           Wrong
Pocket Assets. From and after the Closing, Seller, on
the one hand, or Buyer, on the other hand, shall receive or
otherwise possess any asset that should belong to the other Party
under this Agreement, Seller and Buyer agree to promptly transfer
such asset to the Party so entitled hereto.

 


6.9.           Further
Assurances. Following the Closing, each of the
Parties shall, and shall cause their respective Affiliates to,
execute and deliver such additional documents, instruments,
conveyances and assurances and take such further actions as may be
reasonably required to carry out the provisions hereof and give
effect to the Transactions. Following the Closing, Seller shall use
commercially reasonable efforts and take such actions as reasonably
requested by Buyer to file recordation of current ownership of all
Owned Intellectual Property with the applicable Government Entity,
including, without limitation, obtaining consents from any
necessary third parties.

 


 



- 27 -








 






 


ARTICLE
VII

 


Indemnification

 


7.1.           Survival
of Representations and Warranties

 



(a)           All
representations and warranties of Seller or Buyer in this Agreement
or any other Related Agreement shall survive the Closing until the
12 month anniversary of the Closing Date (the “Survival Date”);
provided, that:

 


(i)           all
representations and warranties of Seller or Buyer related to Taxes
or contained in Section 4.1 (Organization, Good
Standing and Qualification), Section 4.2 (Corporate Authority;
Approval and Fairness), Section 4.11 (Taxes), Section 4.15 (Brokers and Finders),
Section
5.1 (Organization,
Good Standing and Qualification), Section 5.2 (Corporate Authority) or
Section
5.6 (Brokers and
Finders) shall survive until 30 days after expiration of all
applicable statutes of limitations relating to such representations
and warranties; and

 


(ii)           any
claim for indemnification based upon a breach of any such
representation or warranty and asserted prior to the Survival Date
by written notice in accordance with Section 7.4 or Section 7.5, as applicable, shall
survive until final resolution of such claim.

 


(b)           The
representations and warranties contained in this Agreement (and any
right to indemnification for breach thereof) shall not be affected
by any investigation, verification or examination by any party
hereto or by any Representative of any such party or by any such
party’s actual knowledge of any facts with respect to the
accuracy or inaccuracy of any such representation or
warranty.

 



7.2.           Indemnification
by Seller. Subject to the
limitations set forth in this Article VII, Seller shall
indemnify, defend and hold harmless Buyer and its Representatives
(collectively, the “Buyer Indemnified
Persons”) from and against any and all Damages,
whether or not involving a third-party claim, including reasonable
attorneys’ fees, arising out of, relating to or resulting
from:

 



(a)           any
breach of a representation or warranty of Seller contained in this
Agreement or in any other Related Agreement;

 


(b)           any
breach of a covenant of Seller contained in this Agreement or in
any other Related Agreement;

 


(c)           any
Excluded Asset or Excluded Liability;

 


(d)           any
claim arising out of or resulting from Seller not having filed
recordation of current ownership with the applicable Government
Entity of all Owned Intellectual Property; or

 


(e)           any
noncompliance with applicable bulk sales or fraudulent transfer Law
in connection with the Transaction.

 



7.3.           Indemnification
by Buyer. Subject to the
limitations set forth in this Article VII, Buyer shall
indemnify, defend and hold harmless Seller and its Representatives
(collectively, the “Seller Indemnified
Persons”) from and against any and all Damages,
whether or not involving a third-party claim, including reasonable
attorneys’ fees, arising out of, relating to or resulting
from:

 


 



- 28 -








 






 


 

 


(a)           any
breach of a representation or warranty of Buyer contained in this
Agreement or in any other Related Agreement;

 


(b)           any
breach of a covenant of Buyer contained in this Agreement or in any
other Related Agreement;

 


(c)           any
claim arising out of or resulting from the operation or ownership
by Buyer of the Acquired Assets from and after the Closing;
or

 


(d)           any
Assumed Liability.

 



7.4.           Direct
Claims. If any Buyer
Indemnified Person or Seller Indemnified Person (each, an
“Indemnified
Person”) shall claim indemnification hereunder for any
claim (other than a third party claim) for which indemnification is
provided in Section
7.2 or Section 7.3 above, as applicable, Buyer
(on behalf of a Buyer Indemnified Person) or Seller (on behalf of a
Seller Indemnified Person) shall promptly give written notice (a
“Notice of
Claim”) to Seller or Buyer, as applicable (each, an
“Indemnifying
Person”), which notice shall include the basis for
such claim or demand and the nature and estimated amount of the
claim, all in reasonable detail; provided, that, no delay in
providing such Notice of Claim will affect an Indemnified
Person’s rights hereunder except (and only then to the extent
that) the Indemnifying Person is materially and adversely
prejudiced thereby. If an Indemnifying Person disputes any claim
set forth in the Notice of Claim, it shall deliver to such
Indemnified Person that has given the Notice of Claim written
notice indicating its dispute of such Notice of Claim (an
“Objection
Notice”) within 30 days after the date the Notice of
Claim is given. Following the receipt of an Objection Notice, the
Indemnified Person and the Indemnifying Person shall attempt in
good faith to agree upon the rights of the respective parties with
respect to each of such claims in the Notice of Claim. If the
Indemnified Person and the Indemnifying Person should so agree, a
memorandum setting forth such agreement shall be prepared and
signed by Seller and Buyer and the Indemnifying Person shall
promptly pay such Damages as are set forth in such memorandum. If
the Indemnified Person and the Indemnifying Person are unable to
resolve such dispute after good faith discussions within 30 days
(as may be extended in writing by Seller and Buyer) following
delivery of an Objection Notice, such dispute shall be resolved by
a court of competent jurisdiction in accordance with Section 8.4 hereof.

 



7.5.           Matters
Involving Third Party Claims

 



(a)           If
an Indemnified Person shall claim indemnification hereunder from
any claim or demand of a third party for which indemnification is
provided in Section 7.2 or 7.3 above (a
“Third Party
Claim”), the Indemnified Person shall promptly give
written notice (a “Third Party Notice”) to
the Indemnifying Person, which notice shall include the basis for
such Third Party Claim, the nature and estimated amount of the
Third Party Claim, and any other material information as the
Indemnified Person shall have concerning the Third Party Claim, all
in reasonable detail. No delay in providing such Third Party Notice
will affect an Indemnified Person’s rights hereunder except
(and only then to the extent that) the Indemnifying Person is
materially and adversely prejudiced thereby. After delivery of a
Third Party Notice, the Indemnified Person shall keep the
Indemnifying Person reasonably informed with respect to the Third
Party Claim.

 


 



- 29 -








 






 


 

 


(b)           The
Indemnifying Person, upon notice to the Indemnified Person within
15 days after receiving a Third Party Notice, shall have the right
to assume and control the defense of such Third Party Claim for
which the Indemnifying Person is obligated to indemnify pursuant to
this Article VII at
such Indemnifying Person’s expense and through a nationally
recognized and reputable counsel of its choosing reasonably
acceptable to the Indemnified Person, subject to the limitations
contained in this Article
VII; provided, however, that the Indemnifying Person shall
not have the right to assume and control such defense if: (i) such
Third Party Claim relates to or arises in connection with any
criminal or quasi-criminal proceeding, action, indictment,
allegation or investigation; (ii) such Third Party Claim seeks an
injunction or equitable relief against the Indemnified Person;
and/or (iii) the Indemnified Person has been advised by outside
counsel that there are legal defenses available to an Indemnified
Person that are different from or additional to those available to
the Indemnifying Person or there are conflicts of interest between
the Indemnifying Person and the Indemnified Person with respect to
the Third Party Claim that cannot be waived. If the Indemnifying
Person elects to assume the defense of a Third Party Claim, the
Indemnified Person shall be entitled to participate in such defense
at its own expense directly or thorough counsel of its choice for
such purpose. If the Indemnifying Person elects not to or is unable
to compromise or defend such Third Party Claim, fails to promptly
notify the Indemnified Person in writing of its election to defend
as provided in this Agreement, or fails to diligently prosecute the
defense of such Third Party Claim, the Indemnified Person shall, at
the expense of the Indemnifying Person, undertake the defense of
such Third Party Claim, and shall have the right to compromise or
settle such Third Party Claim with the consent of the Indemnifying
Person, which consent shall not be unreasonably withheld,
conditioned or delayed.

 


(c)           If
the Indemnifying Person elects to assume the defense of a Third
Party Claim, the Indemnifying Person shall have the right to
compromise and settle in good faith all indemnifiable matters
related to the applicable Third Party Claim which are susceptible
to being settled, except to the extent that (i) such settlement
would involve injunctive or other equitable relief or (ii) such
settlement does not expressly and unconditionally release the
Indemnified Person from all liabilities and obligations with
respect to such Third Party Claim, without prejudice. If the
Indemnifying Person elects to assume the defense of a Third Party
Claim, the Indemnifying Person shall from time to time apprise the
Indemnified Person of the status of the Third Party Claim and any
resulting Action (including any enforcement Action) and shall
furnish the Indemnified Person with such documents and information
filed or delivered in connection with such Third Party Claim as the
Indemnified Person may reasonably request. If the Indemnifying
Person elects to assume the defense of a Third Party Claim, the
Indemnified Person will cooperate and make available to the
Indemnifying Person (and its Representatives) its employees on
reasonable notice and during business hours, and furnish such books
and records in its possession or under its control as may be
reasonably necessary or useful in connection with such defense;
provided, that (A) the provision of or access to any records and
information or employees will be subject to appropriate
confidentiality undertakings and, if applicable, execution of
customary release letters in favor of the auditors as requested in
connection with the sharing of work papers, and (B) nothing in this
subsection will require any party to disclose information that is
subject to the attorney-client privilege.

 


 



- 30 -








 






 


 

 


7.6.           Limitations
on Indemnification

 


(a)           After
the Closing, the indemnification provided in this Article
VII (including all
limitations contained herein) shall be the sole and exclusive
remedy for all matters (other than claims arising from fraud,
criminal activity or willful misconduct in connection with the
Transactions) relating to this Agreement or any other Related
Agreement, and for the breach of any representation, warranty,
covenant or agreement contained herein or in any other Related
Agreement or in any certificate delivered hereunder or in any other
Related Agreement; provided, however, that no Party shall be
prohibited from seeking any equitable relief available to it
pursuant to this Agreement or any other Related Agreement with
respect to any failure by another Party to perform any covenant of
it contained in this Agreement or any other Related
Agreement.

 



(b)           Seller
shall have no liability with respect to any claim for
indemnification pursuant to Section 7.2(a) unless and until the
aggregate amount of all Damages for which Seller would, but for
this clause, be liable pursuant to Section 7.2(a), exceed on a cumulative
basis $100,000 (the “Deductible”), in which
case Seller shall be liable only to the extent such Losses exceed
the Deductible and in accordance with the terms of this
Agreement.

 



(c)           The
aggregate amount of all Damages for which Seller shall be liable
for indemnification pursuant to Section 7.2(a) shall not exceed
$2,400,000.

 


(d)           Notwithstanding
the foregoing, the limitations set forth in Section 7.6(b) and Section 7.6(c) shall not apply to
Damages based upon, arising out of, with respect to or by reason of
any inaccuracy in or breach of any representation or warranty
related to Taxes or contained in Section 4.1 (Organization, Good
Standing and Qualification), Section 4.2 (Corporate Authority;
Approval and Fairness), Section 4.11 (Taxes) or Section 4.15 (Brokers and
Finders).

 


ARTICLE
VIII

 


Miscellaneous and
General

 


8.1.           Modification
or Amendment. Subject to the
provisions of the applicable Laws, at any time prior to the
Closing, the Parties may modify or amend this Agreement, by written
agreement executed and delivered by duly authorized officers of the
respective Parties.

 



8.2.           Waiver
of Conditions. The conditions to
each of the Parties’ obligations to consummate the sale of
the Business are for the sole benefit of such Party and may be
waived in writing by such Party in whole or in part to the extent
permitted by applicable Laws.

 


8.3.           Counterparts.
This Agreement may be executed in any number of counterparts, each
such counterpart being deemed to be an original instrument, and all
such counterparts will together constitute the same
agreement.

 


 



- 31 -








 






 


 

 



8.4.           GOVERNING
LAW AND VENUE; WAIVER OF JURY TRIAL; SPECIFIC
PERFORMANCE

 



(a)           THIS
AGREEMENT WILL BE DEEMED TO BE MADE IN AND IN ALL RESPECTS WILL BE
INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE
LAW OF THE STATE OF DELAWARE WITHOUT REGARD TO THE CONFLICTS OF LAW
PRINCIPLES THEREOF TO THE EXTENT THAT SUCH PRINCIPLES WOULD DIRECT
A MATTER TO ANOTHER JURISDICTION. The Parties hereby irrevocably
submit to the exclusive personal jurisdiction of the Court of
Chancery of the State of Delaware or, to the extent such court does
not have subject matter jurisdiction, the United States District
Court for the District of Delaware (the “Chosen Courts”) solely in
respect of the interpretation and enforcement of the provisions of
this Agreement and of the documents referred to in this Agreement,
and in respect of the Asset Transaction and the other Transactions,
and hereby waive, and agree not to assert, as a defense in any
Action for the interpretation or enforcement hereof or of any such
document, that it is not subject thereto or that such Action may
not be brought or is not maintainable in the Chosen Courts or that
the Chosen Courts are an inconvenient forum or that the venue
thereof may not be appropriate or that this Agreement or any such
document may not be enforced in or by the Chosen Courts, and the
Parties irrevocably agree that all claims relating to such Action
or transactions will be heard and determined in the Chosen
Courts.

 


(b)           EACH
PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE
UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF OR RELATING TO THIS AGREEMENT, THE ASSET TRANSACTION OR THE
OTHER TRANSACTIONS. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT
(i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER, (ii) EACH PARTY UNDERSTANDS AND HAS
CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH PARTY
MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.4.

 


(c)           The
Parties agree that irreparable damage would occur in the event that
any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the Parties will be entitled to an
injunction or injunctions to prevent breaches of this Agreement and
to enforce specifically the terms and provisions of the Chosen
Courts, this being in addition to any other remedy to which such
Party is entitled at Law or in equity.

 


8.5.           Notices.
Any notice, request, instruction or other document to be given
hereunder by any Party to the others will be in writing and
delivered personally or sent by registered or certified mail,
postage prepaid, by facsimile, electronic mail or overnight
courier:

 


 



- 32 -








 






 


 


	
 

	

If to
Seller:


 


	
 

	

Celularity
Inc.


33
Technology Drive,


	
 

	

Warren,
New Jersey 07059


Email:
      john.haines@celularity.com


Attention: John
R. Haines


 


	
 

	

with a
copy (which will not constitute notice) to:


 


	
 

	

Jones
Day


4655
Executive Drive, Suite 1500


San
Diego, California 92121


Email: creese@jonesday.com


Attention: Cameron
A. Reese


 


	
 

	

If to
Buyer:


 


	
 

	

SANUWAVE
Health, Inc.


3360
Martin Farm Road, Suite 100


Suwanee,
GA 30024


Email:
Attention:


 


	
 

	

with a
copy (which will not constitute notice) to:


 


	
 

	

Morrison
& Foerster LLP


	
 

	

425
Market Street


	
 

	

San
Francisco, CA 94105


Email:
mindick@mofo.com


Attention:
Murray A. Indick


 







 


or to
such other persons or addresses as may be designated in writing by
the Party to receive such notice as provided above. Any notice,
request, instruction or other document given as provided above will
be deemed given to the receiving Party upon actual receipt, if
delivered personally; three Business Days after deposit in the
mail, if sent by registered or certified mail; upon confirmation of
successful transmission if sent by facsimile or upon receipt of
electronic mail (provided that if given by
facsimile or electronic mail such notice, request, instruction or
other document will be followed up within one Business Day by
dispatch pursuant to one of the other methods described herein); or
on the next Business Day after deposit with an overnight courier,
if sent by an overnight courier.

 


8.6.           Entire
Agreement. This Agreement
(including any exhibits hereto) and the Disclosure Letters
constitute the entire agreement, and supersede all other prior
agreements, understandings, representations and warranties both
written and oral, among the Parties, with respect to the subject
matter hereof.

 


 



- 33 -








 






 


 

 


8.7.           No
Third Party Beneficiaries. Buyer and Seller
hereby agree that their respective representations, warranties and
covenants set forth herein are solely for the benefit of the other
Party hereto, in accordance with and subject to the terms of this
Agreement, and this Agreement is not intended to, and does not,
confer upon any Person other than the Parties any rights or
remedies hereunder, including, the right to rely upon the
representations and warranties set forth herein. The
representations and warranties in this Agreement are the product of
negotiations among the Parties and are for the sole benefit of the
Parties. Any inaccuracies in such representations and warranties
are subject to waiver by the Parties in accordance with
Section 8.2
without notice or liability to any other Person. In some instances,
the representations and warranties in this Agreement may represent
an allocation among the Parties of risks associated with particular
matters regardless of the knowledge of any of the Parties.
Consequently, Persons other than the Parties may not rely upon the
representations and warranties in this Agreement as
characterizations of actual facts or circumstances as of the date
of this Agreement or as of any other date.

 


8.8.           Obligations
of Buyer and of Seller. Whenever this
Agreement requires a Subsidiary of Buyer to take any action, such
requirement will be deemed to include an undertaking on the part of
Buyer to cause such Subsidiary to take such action. Whenever this
Agreement requires a Subsidiary of Seller to take any action, such
requirement will be deemed to include an undertaking on the part of
Seller to cause such Subsidiary to take such action.

 


8.9.           Severability.
The provisions of this Agreement will be deemed severable and the
invalidity or unenforceability of any provision will not affect the
validity or enforceability of the other provisions hereof. If any
provision of this Agreement, or the application of such provision
to any Person or any circumstance, is invalid or unenforceable,
(a) a suitable and equitable provision will be substituted
therefor in order to carry out, so far as may be valid and
enforceable, the intent and purpose of such invalid or
unenforceable provision and (b) the remainder of this
Agreement and the application of such provision to other Persons or
circumstances will not be affected by such invalidity or
unenforceability, nor will such invalidity or unenforceability
affect the validity or enforceability of such provision, or the
application of such provision, in any other
jurisdiction.

 


8.10.                      Interpretation;
Construction. The table of
contents and headings herein are for convenience of reference only,
do not constitute part of this Agreement and will not be deemed to
limit or otherwise affect any of the provisions hereof. Where a
reference in this Agreement is made to a Section or Exhibit, such
reference will be to a Section of or Exhibit to this Agreement
unless otherwise indicated. Whenever the words
“include,” “includes” or
“including” are used in this Agreement, they will be
deemed to be followed by the words “without
limitation.” All pronouns and all variations thereof will be
deemed to refer to the masculine, feminine or neuter, singular or
plural, as the identity of the Person may require. The defined
terms contained in this Agreement are applicable to the singular,
as well as to the plural, forms of such terms. Where a reference in
this Agreement is made to any Contract (including this Agreement),
statute or regulation, such references are to, except as context
may otherwise require, the statute or regulation as amended,
modified, supplemented, restated or replaced from time to time (in
the case of a Contract, to the extent permitted by the terms
thereof); and to any section of any statute or regulation including
any successor to the section and, in the case of any statute, any
rules or regulations promulgated thereunder. All references to
“dollars” or “$” in this Agreement are to
United States dollars. If any action or notice is to be taken or
given on or by a particular calendar day, and such calendar day is
not a Business Day, then such action or notice shall be deferred
until, or may be taken or given on, the next Business Day. Each
Party to this Agreement has or may have set forth information in
its respective Disclosure Letter in a section of such Disclosure
Letter that corresponds to the section of this Agreement to which
it relates. The fact that any item of information is disclosed in a
Disclosure Letter will not be construed to mean that such
information is required to be disclosed by this Agreement or to
otherwise imply that any such item has had or is reasonably likely
to have, individually or in the aggregate, a Material Adverse
Effect or otherwise represents an exception or material fact, event
or circumstance for the purpose of this Agreement. Headings
inserted in the sections or subsections of a disclosure letter are
for convenience of reference only and will to no extent have the
effect of amending or changing the express terms of the sections or
subsections set forth in this Agreement.

 


8.11.                      Assignment.
This Agreement will not be assignable by operation of Law or
otherwise. Any purported assignment in violation of this Agreement
is void.

 


[Signature
page follows]

 


 



- 34 -








 






IN
WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the duly authorized officers of the Parties as of the
date first written above.

 


SANUWAVE HEALTH,
INC.

 



By: /s/ Kevin A. Richardson II  
       







Name:
Kevin A. Richardson II


Title:
CEO

 


CELULARITY
INC.

 



By: /s/ Robert J. Hariri, MD, PhD  
    







Name:
Robert J. Hariri, MD, PhD


Title:
Chairman & CEO


 




[Signature
Page to Asset Purchase Agreement]








 







ANNEX A

 



DEFINED TERMS

 


“Acquired Assets” has the
meaning set forth in Section 2.1.

 


“Acquired Records” has the
meaning set forth in Section 2.1(c).

 


“Action” will mean any
civil, criminal, administrative or other similar proceeding,
litigation, audit, investigation, arbitration, action, suit,
review, examination, inquiry, hearing, demand, claim or similar
action (whether at Law or in equity).

 


“Affiliate” when used with
respect to any party will mean any Person who is an
“affiliate” of that party within the meaning of
Rule 405 promulgated under the Securities Act.

 


“Agreement” has the
meaning set forth in the Preamble.

 


“Allocation” has the
meaning set forth in Section 2.7(a).

 


“Annual Financial
Statement” has the meaning set forth in Section 4.4(a).

 


“Antitrust Laws” means the
Sherman Antitrust Act, the Clayton Antitrust Act, the HSR Act, the
Federal Trade Commission Act, and all other federal, state and
foreign statutes, rules, regulations, orders, decrees,
administrative and judicial doctrines and other 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 of competition through merger or
acquisition.

 


“Asset Transaction” has
the meaning set forth in the Recitals.

 


“Assigned Lease” has the
meaning set forth in Section 2.1(g).

 


“Assignment and Assumption
Agreement” has the meaning set forth in Section ‎3.2(a)(ii).

 


“Assumed Contracts” has
the meaning set forth in Section 2.1(a).

 


“Assumed Liabilities” has
the meaning set forth in Section 2.3.

 


“Bill of Sale” has the
meaning set forth in Section 3.2(a)(i).

 


“Business” means
Seller’s UltraMIST Therapy products.

 


“Business Day” will mean
any day ending at 11:59 p.m. (Eastern Time) other than a Saturday
or Sunday or a day on which banks are required or authorized to
close in the City of New York, New York.

 


“Business Employees” has
the meaning set forth in Section 6.5(a).

 


“Buyer” has the meaning
set forth in the Preamble.

 


 



A-1








 






 


 

 


“Buyer Disclosure Letter”
has the meaning set forth in Article V.

 


“Buyer Indemnified
Persons” has the meaning set forth in Section 7.2.

 


“Buyer Secretary’s
Certificate” means a certificate of the Secretary or
an Assistant Secretary (or equivalent officer) of Buyer certifying
that attached thereto are true and complete copies of all
resolutions adopted by the Board of Directors of Buyer authorizing
the execution, delivery and performance of this Agreement and the
Related Agreements and the consummation of the transactions
contemplated hereby and thereby, and that all such resolutions are
in full force and effect and are all the resolutions adopted in
connection with the transactions contemplated hereby and
thereby.

 


“CE Marking” means the
marking of conformity affixed on a medical device in the EU in
order to attest compliance of such medical device with applicable
EU legislation, for the purpose of the placing of such medical
device on the EU market.

 


“Chosen Courts” has the
meaning set forth in Section 8.4(a).

 


“Closing” has the meaning
set forth in Section 3.1.

 


“Closing Date” has the
meaning set forth in Section 3.1.

 


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

 


“Continuing Employees” has
the meaning set forth in Section 6.5(a).

 


“Contract” has the meaning
set forth in Section 4.3(b).

 


“Controlled Group” means
any trade or business (whether or not incorporated) (i) under
common control within the meaning of Section 4001(b)(1) of ERISA
with Seller or any of its Subsidiaries or (ii) which together with
Seller or any of its Subsidiaries is treated as a single employer
under Section 414(t) of the Code.

 


“DGCL” means the General
Corporation Law of the State of Delaware, as amended.

 


“Damages” shall mean and
include any loss, damage, injury, decline in value, lost
opportunity, liability, claim, demand, settlement, judgment, award,
fine, penalty, Tax, fee (including any reasonable legal fee,
accounting fee, expert fee or advisory fee), charge, cost
(including any cost of investigation) or expense of any nature.
Damages will be determined net of any insurance proceeds that an
Indemnified Person actually receives relating to such
Damages.

 


“Deductible” has the
meaning set forth in Section 7.6(b).

 


“Disclosure Letters” means
the Seller Disclosure Letter and the Buyer Disclosure
Letter.

 


 



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“Employee Plan” means (i)
all “employee benefit plans,” as defined in Section
3(3) of ERISA, (ii) all other employment, severance pay,
salary continuation, bonus, incentive, stock option, equity-based,
retirement, pension, profit sharing or deferred compensation plans,
contracts, programs, funds, or arrangements of any kind, and (iii)
all other employee benefit plans, contracts, programs, funds, or
arrangements (whether written or oral, qualified or nonqualified,
funded or unfunded) and any trust, escrow, or similar agreement
related thereto, whether or not funded, in respect of any present
or former employees, directors, managers, officers, equity holders,
consultants, or independent contractors of Seller, any of its
Subsidiaries or any member of the Controlled Group that are
sponsored or maintained by Seller, any of its Subsidiaries or any
member of the Controlled Group or with respect to which Seller, any
of its Subsidiaries or any member of the Controlled Group has made
within the six-year period prior to the date hereof or is required
to make payments, transfers, or contributions or with respect to
which Seller or any of its Subsidiaries have or may have any
liability or obligation.

 


“Enforceability Exception”
has the meaning set forth in Section 4.2.

 


“Environmental Law” means
any federal, state, local or foreign statute, law, regulation,
order, decree, permit, authorization or requirement of any
Governmental Entity relating to (a) the protection,
investigation or restoration of the environment, or natural
resources or the protection of human health and safety from
exposure to pollution in the environment; (b) the disposal,
release or threatened release of any Hazardous Substance; or
(c)  indoor air, wetlands, or pollution, or contamination of
the environment.

 


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

 


“Exchange Act” means the
Securities Exchange Act of 1934, as amended.

 


“Excluded Assets” has the
meaning set forth in Section 2.2.

 


“Excluded Liabilities” has
the meaning set forth in Section 2.4.

 


“EU” means the European
Union.

 


“FDA” has the meaning set
forth in Section
4.19(a).

 


“FDCA” has the meaning set
forth in Section
4.19(a).

 


“Financial Statements” has
the meaning set forth in Section 4.4(a).

 


“FIRPTA Certificate” means
a certificate pursuant to Treasury Regulations
Section 1.1445-2(b) that Seller is not a foreign person within
the meaning of Section 1445 of the Code.

 


“GAAP” means United States
generally accepted accounting principles.

 


“Good Manufacturing
Practice” means current good manufacturing practices,
as applicable to the manufacture of medical devices, as in effect
at the relevant time, including as specified in 21 CFR Part 820 and
any applicable international and foreign equivalent to the
foregoing.

 


 



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“Governmental Entity” has
the meaning set forth in Section 4.3(a).

 


“Hazardous Substance”
means any substance that is (a) listed, classified or regulated
pursuant to any Environmental Law because of its effect or
potential effect on the environment; or (b) any petroleum product
or by-product, asbestos-containing material in friable form,
lead-containing paint or plumbing, polychlorinated biphenyls, mold
in quantities requiring remediation, radioactive material or
radon.

 


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

 


“Indebtedness” of any
Person means, without duplication, (i) the principal, accreted
value, accrued and unpaid interest, prepayment and redemption
premiums or penalties (if any), unpaid fees or expenses and other
monetary obligations in respect of (A) indebtedness of such Person
for money borrowed and (B) indebtedness evidenced by notes,
debentures, bonds or other similar instruments for the payment of
which such Person is responsible or liable; (ii) all obligations of
such Person issued or assumed as the deferred purchase price of
property, all conditional sale obligations of such Person and all
obligations of such Person under any title retention agreement;
(iii) all obligations of such Person under leases required to be
capitalized in accordance with GAAP; (iv) all obligations of such
Person for the reimbursement of any obligor on any letter of
credit, banker’s acceptance or similar credit transaction;
(v) all obligations of such Person under interest rate or currency
swap transactions (valued at the termination value thereof); (vi)
the liquidation value, accrued and unpaid dividends and prepayment
or redemption premiums and penalties (if any), unpaid fees or
expense and other monetary obligations in respect of any and all
redeemable preferred stock of such Person; (vii) all obligations of
the type referred to in clauses (i) through (vi) of any Persons for
the payment of which such Person is responsible or liable, directly
or indirectly, as obligor, guarantor, surety or otherwise,
including guarantees of such obligations; and (viii) all
obligations of the type referred to in clauses (i) through (vii) of
other Persons secured by (or for which the holder of such
obligations has an existing right, contingent or otherwise, to be
secured by) any Lien on any property or asset of such Person
(whether or not such obligation is assumed by such
Person).

 


“Independent Expert” has
the meaning set forth in Section 2.7(b).

 


“Indemnified Person” has
the meaning set forth in Section 7.4.

 


“Indemnifying Person” has
the meaning set forth in Section 7.4.

 


“Insurance Policies” has
the meaning set forth in Section 4.14.

 


“Intellectual Property”
means all worldwide (a) Trademarks; (b) inventions and discoveries,
whether patentable or not, and all patents (utility and design),
industrial rights, registrations, invention disclosures and
applications therefor, including divisions, continuations,
continuations-in-part and renewal applications, and including
renewals, extensions and reissues; (c) Trade Secrets; (d) published
and unpublished works of authorship, including, databases and other
compilations of information, copyrights therein and thereto, and
registrations and applications therefor, and all renewals,
extensions, restorations and reversions thereof; (e) Internet
domain names; and (f) all other intellectual property or
proprietary rights.

 


 



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“Interim Financial
Statements” has the meaning set forth in Section 4.4(a).

 


“Inventory” has the
meaning set forth in Section 2.1(b).

 


“IP Assignment Agreements”
has the meaning set forth in Section 3.2(a)(iv).

 


“IRS” means the Internal
Revenue Service.

 


“Knowledge of Buyer” means
with respect to any matter, the actual knowledge of Kevin A.
Richardson, II and Michael Hubert, assuming such Persons have made
reasonable inquiries and investigations of the matter to which such
knowledge relates.

 


“Knowledge of Seller”
means, with respect to any matter, the actual knowledge of Robert
J. Hariri, MD, PhD, John R. Haines and Steven A. Brigido, DPM,
assuming such Persons have made reasonable inquiries and
investigations of the matter to which such knowledge
relates.

 


“Laws” has the meaning set
forth in Section
4.7(a).

 


“Leased Real Property”
means the real property with respect to the Business that is the
subject of any of the Leases, including any leasehold improvements
related to such Lease.

 


“Leases” has the meaning
set forth in Section 4.9(a).

 


“License Agreement” has
the meaning set forth in Section
3.2(a)(vii).

 


“Licensed Intellectual
Property” has the meaning set forth in Section 4.13(a).

 


“Lien” means any mortgage,
lien, pledge, charge, security interest, claim, easement, covenant,
or other restriction or title matter or encumbrance of any kind in
respect of such asset.

 


“Material Adverse Effect”
means any event, change, circumstance or effect that, individually
or in the aggregate with all other events, changes, circumstances
or effects, (a) is materially adverse to the Business or the
Acquired Assets, taken as a whole, except that none of the
following, and no event, change, circumstance or effect arising out
of or resulting from the following, will constitute or be taken
into account in determining whether a “Material Adverse
Effect” has occurred, or may occur: (i) any change in general
political conditions or general conditions in the economy or the
financial, debt, credit or securities markets in the United States
or elsewhere in the world, including interest rates or exchange
rates, or any changes therein; (ii) changes in general legal,
Tax, regulatory, political or business conditions in the United
States or any other countries or regions in which Seller does
business; (iii) applicable law, GAAP or accounting standards or
interpretations thereof; (iv) any outbreak, continuation or
escalation of war (whether or not declared) or any act of war,
terrorism, sabotage, armed hostility or similar act of calamity or
any material worsening of such conditions existing as of the date
of this Agreement; (v) general conditions in the industries in
which Seller operates, or any changes therein, (vi) any hurricane,
earthquake, flood, or other natural disasters, (vii) the
execution, delivery or performance of the Agreement, or the
announcement or consummation of the Transactions, including any
litigation resulting therefrom, or the impact thereof on
relationships, contractual or otherwise, of Seller or any of its
Subsidiaries with customers, suppliers, vendors, lenders, joint
venture partners or employees, (viii) any action taken by
Buyer or any of its Affiliates, (ix) any action taken by Seller at
the request or with the consent of Buyer; provided, further, that, with respect to
clauses (i) – (vi), such event, change, circumstance or
effect will be taken into account in determining whether a
“Material Adverse Effect” has occurred to the extent
such event, change, circumstance or effect disproportionately
adversely affects Seller and its Subsidiaries, taken as a whole,
relative to the other participants; or (b) prevents, materially
delays, materially impairs or has a material adverse effect on the
ability of Seller to perform its obligations under this Agreement
or to consummate the Asset Transaction and other the
Transactions.

 


 



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“Material Contracts” has
the meaning set forth in Section 4.8(a)(x).

 


“Notice of Claim” has the
meaning set forth in Section 7.4.

 


“Objection Notice” has the
meaning set forth in Section 7.4.

 


“Owned Intellectual
Property” has the meaning set forth in Section 4.13(b).

 


“Party” or
“Parties” has the meaning
set forth in the Preamble.

 


“Permits” has the meaning
set forth in Section 4.7(a).

 


“Permitted Liens” will
mean (i) Liens for current Taxes, payments of which are not yet
delinquent and for which adequate reserves have been established in
accordance with GAAP on the books and records of Seller; (ii)
mechanics, carriers’, workmen’s, warehouseman’s,
repairmen’s, materialmen’s or other Liens or security
interests arising in the ordinary course of business securing
obligations that are not yet due and payable or are being contested
in good faith; (iii) Liens imposed by applicable Law (other than
Tax Law) arising in the ordinary course of business securing
obligations for sums that are not yet due and payable or are being
contested in good faith; (iv) pledges or deposits to secure
obligations under workers’ compensation Laws or similar
legislation or to secure public or statutory obligations; (v)
pledges and deposits to secure the performance of bids, trade
contracts, leases, surety and appeal bonds, performance bonds and
other obligations of a similar nature; or (vi) such imperfections
in title and easements and encumbrances as are not substantial in
character, amount or extent and do not materially detract from the
business subject thereto or affected thereby, or materially
interfere with or materially adversely affect or impair the present
and continued use of the property subject thereto or affected
thereby, or otherwise materially impair the operations of Seller or
any of its Subsidiaries (in the manner presently carried on by
Seller and its Subsidiaries).

 


“Person” will mean any
individual, corporation (including not-for-profit), general or
limited partnership, limited liability company, joint venture,
estate, trust, association, organization, Governmental Entity or
other entity of any kind or nature.

 


“Purchase Price” has the
meaning set forth in Section 2.5.

 


“Regulatory Authorities”
has the meaning set forth in Section 4.19(a).

 


 



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“Related Agreements” means
the Bill of Sale, Assignment and Assumption Agreement, Transition
Services Agreement, and IP Assignment Agreements.

 


“Representatives” shall
mean officers, directors, employees, attorneys, accountants,
advisors, agents, distributors, licensees, shareholders,
subsidiaries and lenders of a party.

 


“Restricted Business”
means the manufacture, assembly, development, sale, or distribution
of any therapeutic ultrasonic device.

 


“Restricted Period” has
the meaning set forth in Section 6.7(a).

 


“SEC” means the United
States Securities and Exchange Commission.

 


“Securities Act” means the
Securities Act of 1933, as amended.

 


“Seller” has the meaning
set forth in the Preamble.

 


“Seller Approvals” has the
meaning set forth in Section 4.3(a).

 


“Seller Board” has the
meaning set forth in the Recitals.

 


“Seller Disclosure Letter”
has the meaning set forth in Article IV.

 


“Seller Indemnified
Persons” has the meaning set forth in Section 7.3.

 


“Seller Objection Notice”
has the meaning set forth in Section 2.7(a).

 


“Seller Product” has the
meaning set forth in Section 4.3(c).

 


“Seller Secretary’s
Certificate” means a certificate of the Secretary or
an Assistant Secretary (or equivalent officer) of Seller certifying
that attached thereto are true and complete copies of all
resolutions adopted by the Seller Board authorizing the execution,
delivery and performance of this Agreement and the Related
Agreements and the consummation of the transactions contemplated
hereby and thereby, and that all such resolutions are in full force
and effect and are all the resolutions adopted in connection with
the transactions contemplated hereby and thereby.

 


“Subsidiary” means, with
respect to any Person, any other Person of which (a) more than
50% of (i) the total combined voting power of all classes of voting
securities, (ii) the total equity, capital or profit interests or
(iii) the total economic interests of such entity, in each case, is
beneficially owned, directly or indirectly, by such Person or (b)
the power, by contract or otherwise, to appoint, vote or to direct
the voting of sufficient securities to elect a majority of the
board of directors or similar managing body of such entity is held,
directly or indirectly, by such Person.

 


“Survival Date” has the
meaning set forth in Section 7.1(a).

 


 



A-7








 






 


“Tax” includes all
federal, state, local and foreign income, profits, franchise, gross
receipts, environmental, customs duty, capital stock, severances,
stamp, payroll, sales, employment, unemployment, disability, use,
property, withholding, excise, production, value added, occupancy
and other taxes, duties or assessments of any nature whatsoever,
together with all interest, penalties and additions imposed with
respect to such amounts and any interest in respect of such
penalties and additions.

 


“Tax Return” includes all
returns and reports (including elections, declarations,
disclosures, schedules, estimates and information returns) required
to be supplied to a Governmental Entity relating to
Taxes.

 


“Third Party Claim” has
the meaning set forth in Section 7.5(a).

 


“Third Party Notice” has
the meaning set forth in Section 7.5(a).

 


“Top
Customers” means
those customers of the Business that are (i) the top 10 customers
measured by dollar value of total sales for the twelve months ended
December 31, 2018 or (ii) the top 10 customers measured by
dollar value of total sales for the twelve months ended December,
2019.

 


“Top
Suppliers” means
suppliers of the Business that (i) supply components of the
Wound Care Products to Seller, (ii) are the top 10 suppliers
measured by dollar value of the total sales for the twelve months
ended December 31, 2018, or (iii) are the top 10 suppliers
measured by dollar value of the total sales for the twelve months
ended December 31, 2019.

 


“Trade Secrets” means
confidential information, and know-how, including processes,
schematics, business methods, formulae, compositions, algorithms,
procedures, methods, techniques, drawings, prototypes, models,
designs, customer lists and supplier lists, that (i) is not
publicly known, (ii) derives independent economic value, actual or
potential, from not being generally known to, and not being readily
ascertainable by proper means by, other persons who can obtain
economic value from its disclosure or use, and (iii) is the subject
of efforts that are reasonable under the circumstances to maintain
its secrecy.

 


“Trademarks” means
trademarks, service marks, brand names, certification marks,
collective marks, d/b/a’s, logos, symbols, trade dress, trade
names, and other indicia of origin, all applications and
registrations for the foregoing, and all goodwill associated
therewith and symbolized thereby, including all renewals of
same.

 


“Transactions” has the
meaning set forth in the Recitals.

 


“Transfer Taxes” has the
meaning set forth in Section 6.1.

 


“Transition Services
Agreement” has the meaning set forth in Section 3.2(a)(iii).

 


“Wound Care Products”
means the Wound Bed Preparation products MIST Therapy system and
UltraMIST® System.

 


 



A-8