IN THE UNITED STATES BANKRUPTCY COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

In re:

IMPEL PHARMACEUTICALS INC., et al.1

 Debtors. 

Chapter 11 

Case No. 23-80016 (SGJ) 

(Jointly Administered) 

ORDER (I)(A) APPROVING THE BID 

PROCEDURES; (B) AUTHORIZING THE 

DEBTORS TO SELECT JN BIDCO LLC AS THE STALKING 

HORSE PURCHASER SUBSTANTIALLY ALONG 

THE TERMS DEFINED IN THE STALKING HORSE 

APA AND APPROVING BID PROTECTIONS; 

(C) ESTABLISHING BID DEADLINES, AN AUCTION, 

AND A SALE HEARING; (D) APPROVING THE FORM AND 

MANNER OF SALE NOTICE; (E) APPROVING ASSIGNMENT 

AND ASSUMPTION PROCEDURES; (F) APPROVING THE FORM 

AND MANNER OF POTENTIAL ASSUMPTION AND ASSIGNMENT 

NOTICE; (II)(A) AUTHORIZING THE SALE OF THE ASSETS FREE 

AND CLEAR; AND (B) APPROVING THE ASSUMPTION AND ASSIGNMENT 

OF DESIGNATED CONTRACTS; AND (III) GRANTING RELATED RELIEF

1 The Debtors in this chapter 11 case, together with the last four digits of the Debtor’s federal tax identification number, 

are: Impel Pharmaceuticals Inc. (8238); and Impel NeuroPharma Australia Pty Ltd (N/A). The Debtors’ service 

address is 201 Elliot Avenue West, Suite 260, Seattle, WA 98119. 

Signed January 11, 2024

______________________________________________________________________

The following constitutes the ruling of the court and has the force and effect therein described.

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Upon the motion (“Motion”)2

 of the debtors and debtors in possession in the abovecaptioned chapter 11 cases (collectively, the “Debtors”), for entry of an order (this “Order”) 

(i)(a) approving the proposed bid procedures attached hereto as Exhibit 1 (the “Bid Procedures”) 

in connection with the Sale of all or substantially all of the Debtors’ Assets, (b) authorizing the 

Debtors’ to select JN Bidco LLC or its designee as the Stalking Horse Purchaser substantially 

along the terms defined in the Stalking Horse APA, attached hereto as Exhibit 2 and approving 

the Bid Protections; (c) establishing the dates and deadlines relating to the Bid Deadline, the 

Auction, and the Sale Hearing, (d) approving the form and manner of the notice of the Sale, the 

Auction, and the Sale Hearing, substantially in the form attached hereto as Exhibit 3 (the “Sale 

Notice”), (e) approving the assumption and assignment procedures of executory contracts or 

unexpired leases in connection with the Sale (the “Designated Contracts”), substantially in the 

form attached hereto as Exhibit 4 (the “Assignment and Assumption Procedures”), and 

(f) approving the form and manner of the potential assignment and assumption notice, substantially 

in the form attached hereto as Exhibit 5 (the “Assignment Notice”), and (ii) authorizing and 

approving (a) the sale of the Assets free and clear of all pledges, liens, security interests, 

encumbrances, claims, charges, options, and interests except to the extent otherwise set forth in 

the purchase agreement executed by the Debtors and the Winning Bidder, and (b) the assumption 

and assignment of Designated Contracts (if any), and (iii) granting related relief, each as more 

fully set forth in the Motion; and upon consideration of the First Day Declaration; and this Court 

having jurisdiction over this matter pursuant to 28 U.S.C. § 1334; and this matter being a core 

proceeding within the meaning of 28 U.S.C. § 157(b)(2); and the Court being able to issue a final 

2 Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to them in the 

Motion.

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order consistent with Article III of the United States Constitution; and venue of this proceeding 

and the Motion in this district being proper pursuant to 28 U.S.C. §§ 1408 and 1409; and 

appropriate notice of and opportunity for a hearing on the Motion having been given; and the relief 

requested in the Motion being in the best interests of the Debtors’ estates, their creditors and other 

parties in interest; and the Court having determined that the legal and factual bases set forth in the 

Motion establish just cause for the relief granted herein; and after due deliberation and sufficient 

cause appearing therefor, it is HEREBY FOUND THAT:

A. The findings and conclusions set forth in this Order constitute the Court’s findings 

of fact and conclusions of law pursuant to Bankruptcy Rule 7052, made applicable to this 

proceeding pursuant to Bankruptcy Rule 9014. To the extent that any of the following findings of 

fact constitute conclusions of law, they are adopted as such. To the extent any of the following 

conclusions of law constitute findings of fact, they are adopted as such. 

B. The Bid Procedures attached as Exhibit 1 are fair, reasonable, and appropriate, and 

are designed to promote participation and active bidding and ensure that the highest or otherwise 

best value is generated for the Assets. The Bid Procedures were negotiated at arm’s length, in 

good faith, and without collusion. 

C. The Stalking Horse APA, attached as Exhibit 2, is the result of extensive, goodfaith, arm’s-length negotiations. The approval of the Stalking Horse Bidder as a “stalking-horse” 

bidder and the Stalking Horse APA as a “stalking-horse” sale agreement is in the best interests of 

the Debtors and their estates and creditors, and the Debtors have demonstrated compelling and

sound justifications for such relief. The Stalking Horse APA will enable the Debtors to secure a 

fair baseline price for the Assets and accordingly will provide a clear benefit to the Debtors’ 

estates, their creditors and all other parties in interest. The Bid Protections are justified to retain 

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the Stalking Horse Purchaser’s commitment to the consummation of the Sale Transaction and to 

enable the Debtors to maximize the ultimate purchase price of the Assets. 

D. The Bid Protections, to the extent due and payable under the Stalking Horse APA, 

(i) shall be deemed an actual and necessary cost of preserving the Debtors’ estates within the 

meaning of section 503(b) of the Bankruptcy Code and treated as an allowed superpriority 

administrative expense claim against the Debtors’ estates pursuant to section 503(b) of the 

Bankruptcy Code; (ii) are reasonable and appropriate, including in light of the size and nature of 

the sale of the Assets and the commitments that have been made, and efforts that have been and 

will be expended by, the Stalking Horse Purchaser notwithstanding that the proposed transaction 

may be subject to better and higher offers; (iii) have been negotiated by the parties and their 

respective advisors at arm’s-length and in good faith, and (iv) are necessary to ensure that the 

Stalking Horse Purchaser will continue to pursue the proposed Sale Transaction. The Bid 

Protections under the Stalking Horse APA were a material inducement for, and a condition of the 

Stalking Horse Purchaser’s entry into the Stalking Horse APA. The Stalking Horse Purchaser has 

provided a material benefit to the Debtors and their creditors by increasing the likelihood that the 

best possible purchase price for the Assets will be realized. 

E. The Sale Notice attached as Exhibit 3 and Assignment Notice attached as Exhibit 5

are appropriate and reasonably calculated to provide all interested parties with timely and proper 

notice of the Bid Procedures (including the Bid Deadline, the Auction, and the Sale Hearing), the 

Assumption and Assignment Procedures, the Sale, the Designated Contracts (if any) and related cure 

amounts, and all relevant and important dates and deadlines with respect to the foregoing. No other 

or further notice of the Sale, the Auction, or the assumption and assignment of Designated Contracts 

shall be required. 

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F. The Assumption and Assignment Procedures attached as Exhibit 4 are fair, 

reasonable, and appropriate and comply with the provisions of Bankruptcy Code 365. 

G. The Debtors demonstrated a compelling and sound businessjustification for this Court 

to enter this Order, to approve the Bid Procedures and the Assumption and Assignment Procedures, 

and to establish the dates and deadlines set forth in the Bid Procedures.

IT IS HEREBY ORDERED THAT:

1. The relief requested in this Motion is GRANTED as set forth herein. 

2. Any and all objections to the relief granted that have not been withdrawn with 

prejudice, waived, or settled, and all reservations of rights included in such objections, are 

overruled, and denied on the merits with prejudice. 

3. The Bid Procedures attached hereto as Exhibit 1 are fully incorporated and 

approved in their entirety. All dates and deadlines set forth in the Bid Procedures are hereby 

established. The failure to specifically include or reference a particular provision of the Bid 

Procedures in this Bid Procedures Order shall not diminish or impair the effectiveness of such 

provision. 

4. The Bid Procedures shall govern the submission, receipt, and analysis of all bids 

relating to any proposed sale of the Assets and the conduct of the Auction and sale of the Assets. 

Any party desiring to bid on the Assets shall comply with this Order, including the Bid Procedures. 

The Debtors are authorized to take all actions as are necessary or appropriate to implement the Bid 

Procedures and otherwise effectuate the relief granted in this Order.

5. Credit bids shall be permitted to the extent any such credit bid is permitted the 

Bankruptcy Code and nonbankruptcy law; provided, however, that any credit bid must include a 

cash component equal to or exceeding the amount of the Bid Protections.

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6. The Bid Protections are approved and are justified to retain the Stalking Horse 

Purchaser’s commitment to the consummation of the Sale Transaction enable the Debtors to 

maximize the ultimate purchase price of the Assets. Any amounts that become due and payable, 

pursuant to the Bid Protections in accordance with the Stalking Horse APA and this Order shall 

constitute a superpriority administrative expense of the Debtors’ estates pursuant to section 503(b) 

of the Bankruptcy Code, with priority over any and all administrative expenses of the kind 

specified in section 503(b) of the Bankruptcy Code. For the avoidance of doubt, the Stalking 

Horse Purchaser shall not be required to include an amount in cash necessary to satisfy the Bid 

Protections as part of any Overbid. 

7. Absent further order of the Court, no person or entity, other than the Stalking Horse 

Bidder (solely to the extent set forth in this Order), shall be entitled to any expense reimbursement 

or break-up fee or similar protection by the Debtors for submitting a Bid or in any way participating 

in the sale process for the Assets. 

8. The form of the Sale Notice attached as Exhibit 3 is approved. The failure to 

specifically include a reference to any particular provision of the Bid Procedures in the Sale Notice 

shall not diminish or impair the effectiveness of such provision. The Debtors are authorized to 

serve the Sale Notice on all known parties in interest in the chapter 11 case and post the Sale Notice 

on the Debtors’ claims, noticing, and solicitation agent’s website for the case.

9. Objections to any Sale, including any objection to (a) the Sale of any Assets free 

and clear of all pledges, liens, security interests, encumbrances, claims, charges, options, and 

interests pursuant to Bankruptcy Code section 363(f), (b) the proposed assumption and assignment 

of any executory contract or unexpired lease (including any proposed cure amount), and/or (c) 

entry of any Sale Order, must (x) be in writing and specify the nature of such objection, (y) comply 

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with the Bankruptcy Code, Bankruptcy Rules, Bankruptcy Local Rules and all orders of the Court, 

and (z) be filed with the Court by January 25, 2024, at 4:00 p.m. (prevailing Central Time); 

provided, however that any objections solely on the basis of adequate assurance of further 

performance by the Winning Bidder or Backup Bidder must be filed in the same manner described 

by the foregoing and served on the Objection Notice Parties, as defined in the Assumption and 

Assignment Procedures, no later than January 30, 2024, at 4:00 p.m. (CT). 

10. If any party fails to file an objection by the foregoing deadline, such party shall be 

(a) barred from asserting any objection to the relief requested in the Motion or to the consummation 

of the Sale, including the transfer of the Assets to the Winning Bidder free and clear of all pledges, 

liens, security interests, encumbrances, claims, charges, options, and interests pursuant to 

Bankruptcy Code section 363(f) and (b) deemed to consent to such “free and clear” sale for 

purposes of Bankruptcy Code section 363(f). 

11. The Assumption and Assignment Procedures attached as Exhibit 4 are approved. 

12. As set forth in the Assumption and Assignment Procedures, the Debtors will file 

with the Court and serve the Cure Notice on or before January 5, 2024, (the “Initial Cure Notice 

Deadline”). Any objections to the Initial Cure Notice, including the Cure Amount or the 

assumption and assignment of any contract or lease included on the Cure Notice must be filed and 

served by January 26, 2024, at 4:00 p.m. (prevailing Central Time) (the “Cure Objection 

Deadline”).

13. As set forth in the Assumption and Assignment Procedures, the Debtors may file 

with the Court and serve the Supplemental Cure Notice until such time as the closing of the Sale. 

Any objection to the Supplemental Cure Notice, including the Cure Amount, must be filed within 

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fourteen (14) days following the date of service of such Supplemental Cure Notice (the 

“Supplemental Cure Objection Deadline”).

14. The form of the Assignment Notice attached as Exhibit 5 is approved. The Debtors 

are authorized to serve the Assignment Notice on all non-Debtor counterparties to Designated

Contracts (if any) as soon as reasonably practicable after the Debtors file the Notice of Winning 

Bid. The inclusion of a contract in any list of Designated Contracts or an Assignment Notice,

Cure Notice (as defined in the Assumption and Assignment Procedures), or Supplemental Cure

Notice (as defined in the Assumption and Assignment Procedures) shall not (a) obligate the 

Debtors to assume or assign such contract or (b) constitute any admission or agreement by the 

Debtors that such contract is an executory contract. Only those contracts that are included on a 

schedule of assumed and acquired contracts attached to definitive documentation in the Sale that 

is approved by the Sale Order will be assumed and assigned. 

15. All persons or entities (whether or not a Qualified Bidder) that participate in the 

bidding process shall be deemed to have knowingly and voluntarily (a) consented to the entry of a 

final order by this Court in connection with the Motion to the extent that it is later determined that 

this Court, absent consent of the parties, cannot enter final orders or judgments in connection 

herewith consistent with Article III of the United States Constitution and (b) waived any right to 

jury trial in connection with any disputes relating to the any of the foregoing matters. 

16. Notwithstanding the relief granted herein and any actions taken pursuant to such 

relief, nothing in this Order shall be deemed (a) an admission as to the amount of, basis for, or 

validity of any claim against a Debtor entity under the Bankruptcy Code or other applicable 

nonbankruptcy law; (b) a waiver of the Debtors’ or any party in interest’s rights to dispute any 

claim or interest on any grounds; (c) a promise or requirement to pay any claim; (d) a waiver of 

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the Debtors’ or any other party in interest’s rights under the Bankruptcy Code or any other 

applicable law; (e) an implication or admission that any particular claim is of a type specified or 

defined in this order or any other order granting the relief requested in this motion or a finding that 

any particular claim is an administrative expense claim or other priority claim; (f) an approval to 

assume, adopt, or reject any agreement, contract, program, policy, or lease under section 365 of 

the Bankruptcy Code; or (g) an admission as to the validity, priority, enforceability, or perfection 

of any lien on, security interest in, or other encumbrance on property of the Debtors’ estates. Any 

payment made pursuant to this order is not intended to be nor should it be construed as an 

admission as to the validity of any claim or a waiver of the Debtors’ rights to subsequently dispute 

such claim.

17. Notice of the Motion as provided therein shall be deemed good and sufficient notice 

of such Motion, and the requirements of Bankruptcy Rule 6004(a) and the Bankruptcy Local Rules 

are satisfied by such notice.

18. Notwithstanding Bankruptcy Rule 6004(h), the terms and conditions of this Order

shall be immediately effective and enforceable upon its entry.

19. The Debtors are authorized to take all such reasonable actions necessary to 

effectuate the relief granted in this Order in accordance with the Motion. 

20. This Court retains exclusive jurisdiction with respect to all matters arising from or 

related to the implementation, interpretation, and enforcement of this Order.

# # # END OF ORDER # # #

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Submitted By:

SIDLEY AUSTIN LLP

Samuel A. Newman (admitted pro hac vice)

555 West Fifth Street

Los Angeles, California 90013

Telephone: (213) 896-6000

Facsimile: (213) 896-6600

Email: sam.newman@sidley.com

Rakhee V. Patel (TX Bar No. 00797213)

Nathan C. Elner (admitted pro hac vice)

Parker G. Embry (TX Bar No. 24126826)

Chelsea M. McManus (TX Bar No. 24131499)

2021 McKinney Avenue, Suite 2000

Dallas, Texas 75201

Telephone: (214) 981-3300

Facsimile: (214) 981-3400

Email: rpatel@sidley.com

nelner@sidley.com

parker.embry@sidley.com

cmcmanus@sidley.com

Jackson T. Garvey (admitted pro hac vice)

One South Dearborn

Chicago, IL 60603

Telephone: (312) 853-7000

Facsimile: (312) 853-7036

Email: jgarvey@sidley.com

Proposed Counsel to the Debtors and Debtors 

in Possession

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Exhibit 1 

Bid Procedures 

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IN THE UNITED STATES BANKRUPTCY COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

In re:

IMPEL PHARMACEUTICALS INC., et al.1

 Debtors. 

Chapter 11 

Case No. 23-80016 (SGJ) 

(Jointly Administered) 

BID PROCEDURES

On December 19, 2023 (the “Petition Date”), the debtors and debtors in possession in the 

above-captioned chapter 11 cases (collectively, the “Debtors”) filed voluntary petitions for relief 

under chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”) in the United States 

Bankruptcy Court for the Northern District of Texas (the “Court”). 

On December 20, 2023, the Debtors filed a motion [Docket No. 18] (the “Bid Procedures 

Motion”) with the Court seeking entry of orders, among other things: (i)(a) approving procedures 

for the solicitation of bids in connection with the proposed sale of substantially all of the Debtor’s 

assets, (these “Bid Procedures”), (b) authorizing the Debtors to select JN Bidco LLC as the 

Stalking Horse Purchaser substantially along the terms defined in the Stalking Horse APA and 

approving the Bid Protections, (c) establishing the dates and deadlines set forth in these Bid 

Procedures, including the Bid Deadline, Auction, and Sale Hearing, (d) approving the form of Sale 

Notice, (e) approving the Assumption and Assignment Procedures for the Designated Contracts 

(if any), (f) approving the form of Assignment Notice, and (ii)(a) authorizing the sale of the Assets 

free and clear of all pledges, liens, security interests, encumbrances, claims, charges, options, and 

interests except to the extent otherwise set forth in the purchase agreement executed by the Debtors 

and the Winning Bidder and (b) approving the assumption and assignment of Designated Contracts 

(if any), and (iii) granting related relief. 

On [•], 2024, the Court entered the Order (I)(A) Approving the Bid Procedures; 

(B) Authorizing the Debtors to Selection JN Bidco LLC as the Stalking Horse Purchaser 

Substantially Along the Terms Defined in the Stalking Horse APA and Approving Bid Protections; 

(C) Establishing Bid Deadlines, an Auction, and a Sale Hearing; (D) Approving the Form and 

Manner of Sale Notice; (E) Approving Assignment and Assumption Procedures; (F) Approving the 

Form and Manner of Potential Assumption and Assignment Notice; and (II)(A) Authorizing the 

Sale of Assets Free and Clear; (B) Approving the Assumption and Assignment of Designated 

Contracts; and (III) Granting Related Relief [Docket No. [•]] (the “Bid Procedures Order”),2

1 The Debtors in this chapter 11 case, together with the last four digits of the Debtor’s federal tax identification number, 

are: Impel Pharmaceuticals Inc. (8238); and Impel NeuroPharma Australia Pty Ltd (N/A). The Debtors’ service 

address is 201 Elliot Avenue West, Suite 260, Seattle, WA 98119. 

2 Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Bid Procedures Motion, 

the Bid Procedures, and the Bid Procedures Order, as applicable.

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which approved, among other things, the procedures set forth below pursuant to which the Debtors 

are authorized to sell all of substantially all of the Debtors’ assets (the “Assets”).

The Bid Procedures Order also authorized, among other things, the Debtors’ entry into that 

certain Asset Purchase Agreement, dated as of December 19, 2023 (as amended, supplemented, or 

otherwise modified by the parties thereto, the “Stalking Horse APA”)3 between the Debtors and 

JN Bidco LLC (“JN Bidco” or the “Stalking Horse Purchaser”), pursuant to which, after a 

comprehensive marketing and sale process initiated before the commencement of these chapter 11 

cases, the Stalking Horse Purchaser has agreed to purchase substantially all of the Assets and to 

assume certain liabilities of the Debtors, each as specifically enumerated in the Stalking Horse 

APA and subject to the terms and conditions set forth therein. The Stalking Horse APA shall serve 

as the stalking horse bid (the “Stalking Horse Bid”) for Assets, subject to higher and better bids in 

accordance with the terms and conditions of these Bid Procedures. 

The Debtors are offering interested parties the opportunity to acquire some or all of the 

Debtors’ Assets. The Debtors’ representatives shall oversee the Sale (defined below) process. 

ANY PARTY INTERESTED IN PROPOSING A POTENTIAL TRANSACTION 

SHOULD CONTACT THE DEBTORS’ PROPOSED INVESTMENT BANKER, 

MOELIS & COMPANY LLC, IF THEY HAVE ANY QUESTIONS OR NEED 

ADDITIONAL INFORMATION: 

ASHISH CONTRACTOR (Ashish.Contractor@moelis.com) 

GABOR SZABO (Gabor.Szabo@moelis.com) 

BARAK KLEIN (Barak.Klein@moelis.com) 

ANDREW CARLSON (Andrew.Carlson@moelis.com) 

PETER WITTWER (Peter.Wittwer@moelis.com)

I. KEY DATES

These Bid Procedures provide interested parties with the opportunity to qualify for, and 

participate in, one or more potential Auctions (as defined below) to be conducted by the Debtors 

and to submit competing bids (each, a “Bid”) for some or all the Assets. In accordance with 

these Bid Procedures, the Debtors will (a) coordinate with each Potential Bidder (as defined 

below) regarding the conduct of their respective due diligence, (b) evaluate bids from Potential 

Bidders, (c) negotiate any Bid made, and (d) make such other determinations as are provided for 

in these Bid Procedures (collectively, the “Bidding Process”).

The key dates for the sale process are as follows. The Debtors, after consultation with the 

Consultation Parties, may extend any of the deadlines in these Bid Procedures. 

3 A copy of the Stalking Horse APA is attached to the Bid Procedures Order as Exhibit 2. 

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SALE TRANSACTION MILESTONES

EVENT OR DEADLINE DATE AND TIME

(ALL IN PREVAILING CENTRAL TIME)

Petition Date P = 0 (Tuesday, December 19, 2023)

Bid Procedures Objection Deadline 7 days prior to the hearing to approve the Bid 

Procedures, at 4:00 pm CT

Initial Cure Notice Deadline P + 17 (January 5, 2024)

Bid Procedures Hearing P + 22 (January 10, 2024) at 9:30 am 

Service and Publication of Sale Notice 1 business day after entry of the Bid Procedures 

Order or as soon as reasonably practicable 

thereafter

Bid Deadline4 P + 35 (January 23, 2024) at 4:00 pm

Sale Objection Deadline P + 37 (January 25, 2024) at 4:00 pm

Cure Objection Deadline P + 38 (January 26, 2024) at 4:00 pm

Determination of Qualified Bids As soon as reasonably practicable following the Bid 

Deadline

Auction (if necessary) P + 41 (January 29, 2024) at 9:00 am

Deadline to File Notice of Winning Bed As soon as reasonably practicable following the 

Auction

Post-Auction Objection Deadline P + 42 (January 30, 2024) at 4:00 pm

Sale Hearing P + 44 (February 1, 2024) at 9:30 am

Anticipated Closing Date P + 55 (February 12, 2024)

II. SUBMISSIONS TO THE DEBTORS; CONSULTATION PARTIES

All submissions to the Debtors required or permitted to be made under these Bid 

Procedures must be directed to each of the following persons or entities unless otherwise provided 

(collectively, the “Notice Parties”):

A. Debtors: Impel Pharmaceuticals Inc. and Impel NeuroPharma Australia Pty Ltd

(attn: Brandon Smith (brandon.smith@teneo.com)).

B. Debtors’ Proposed Counsel: Sidley Austin LLP (attn: Rakhee Patel 

(rpatel@sidley.com) and Jackson T. Garvey (jgarvey@sidley.com)); 

C. Debtors’ Proposed Special Corporate Counsel: Fenwick & West LLP (attn: Alan 

Smith (acsmith@fenwick.com), Ethan Skerry (eskerry@fenwick.com), and 

Matthew McCabe (mmccabe@fenwick.com)); 

D. Debtors’ Proposed Investment Banker: Moelis & Company LLC (attn: Ashish 

Contractor (Ashish.Contractor@moelis.com), Gabor Szabo

(Gabor.Szabo@moelis.com), Andrew Carlson (Andrew.Carlson@moelis.com), 

and Peter Wittwer (Peter.Wittwer@moelis.com); and

4 The Debtors reserve their right, in their own discretion, to move the deadline for the submission of qualified bids.

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E. Debtors’ Interim Management Personnel: Brandon Smith of Teneo Capital LLC 

(attn: Nathan Cook (nathan.cook@teneo.com); Jeremy Burr 

(jeremy.burr@teneo.com)). 

The “Consultation Parties” as used in these Bid Procedures are: (A) Oaktree Fund 

Administration, LLC, in its capacity as administrative agent under the Senior Secured Credit 

Agreement (as defined in the First Day Declaration) (the “Administrative Agent”) and its advisors, 

including Sullivan & Cromwell LLP (the “Secured Creditor Advisors”), so long as no prepetition 

secured party has become a bidder in the sale process, and (B) advisors to the Official Committee 

of Unsecured Creditors, if any (the “Committee Advisors”)

If a Consultation Party, in its capacity as such, receives material information in connection 

with Bids or bidders in a Sale Transaction process, which information is not provided to all 

Potential Bidders in such Sale Transaction process, such party shall be prohibited from being 

deemed a Qualified Bidder in connection with such Sale Transaction process, unless such 

information is provided to all other Potential Bidders in such Sale Transaction process by the 

applicable bid deadline or promptly following receipt of such information by such party. 

In the event that any Consultation Party or an affiliate of the foregoing submits a bid that 

is a Qualified Bid, any obligation of the Debtors to consult with the bidding party or its affiliates 

established under these Bid Procedures will be waived, discharged, and released without further 

action; provided that the bidding party will have the same rights as any other Qualified Bidder set 

forth above. 

III. MARKETING PROCESS 

To facilitate a value-maximizing exit from these chapter 11 cases, the Debtors are 

conducting a marketing process for the sale or disposition of all or any portion of the Assets under 

section 363 of the Bankruptcy Code (the “Sale”). The Debtors retained Moelis & Company LLC 

(“Moelis”), a leading international investment banking and financial advisory firm, in September 

2023 to serve as its proposed investment banker. After conducting initial due diligence, the 

Debtors, in consultation with Moelis, conducted an extensive prepetition marketing process for 

sale of the Debtors’ Assets, as more fully described in the Contractor Declaration. 

Moelis continues to engage with additional potential bidders, and will continue to do so 

until a Sale Transaction is approved by this Court. The Debtors may distribute (if not already 

distributed) to a person or entity (other than the Stalking Horse Bidder) interested in purchasing 

any or all of the Assets (a “Potential Bidder”) an “Information Package” consisting of: 

a. a copy of the Bid Procedures, the Bid Procedures Order, and the Bid Procedures 

Motion; 

b. a form of non-disclosure agreement (“NDA”), substantially in the form attached as 

Schedule 1, and acceptable to the Debtors; and 

c. any other materials appropriate under the circumstances.

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IV. OVERVIEW

The Debtors seek to sell substantially all of the Debtors’ Assets. Except as otherwise 

provided in any Winning Bidder’s purchase agreement, all of the Debtors’ right, title, and interest 

in and to the Assets shall be sold free and clear of all liens, claims, encumbrances and interests 

(collectively, the “Encumbrances”) to the maximum extent permitted by section 363 of the 

Bankruptcy Code (other than Permitted Liens and Assumed Liabilities), with these Encumbrances 

to attach to the proceeds of the Sale with the same validity and priority as such Encumbrances 

applied against the Assets.

V. POTENTIAL BIDDER REQUIREMENTS

To receive due diligence information, including full access to the Debtors’ electronic data 

room and to additional non-public information regarding the Debtors, or otherwise participate in 

the bidding process or be considered for any purpose under the Bidding Procedures, a Potential 

Bidder must deliver the following documents (collectively, the “Preliminary Bid Documents”) by 

email to the Notice Parties (unless the Debtors, in their business judgment and in consultation with 

the Consultation Parties, choose to waive any of the following requirements for any Potential 

Bidder): 

a. an executed NDA on terms acceptable to the Debtors;

b. identity of the Potential Bidder, including its legal name, jurisdiction and form of 

organization, and details regarding the ownership and capital structure of the 

Potential Bidder, including details related to the Potential Bidder’s beneficial 

owners, ultimate beneficial owners, and controlling entities, and any of the 

principals, corporate officers, or other representatives that are authorized to appear 

for and act on behalf of the Potential Bidder with respect to the contemplated 

transaction; and description of the nature and extent of any due diligence the 

Potential Bidder wishes to conduct; and 

c. a description of the due diligence the Potential Bidder seeks to conduct; 

d. sufficient information, as reasonably determined by the Debtors, in consultation 

with the Consultation Parties, that the Potential Bidder (i) has or may reasonably 

obtain the financial capacity to close the Sale (including current audited or verified 

financial statements of, or verified financial commitments obtained by, the 

Potential Bidder (or, if the Potential Bidder is an entity formed for the purpose of 

acquiring the property to be sold, the party that will bear liability for a breach) as 

well as an overview of any recent transactions), the adequacy of which must be 

acceptable to the Debtors; and

e. sufficient information, as reasonably determined by the Debtors, that the Potential 

Bidder has the ability to receive any and all necessary governmental, licensing, 

regulatory, and other approvals. 

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Promptly after a Potential Bidder delivers Preliminary Bid Documents, the Debtors shall 

(i) determine and notify each Potential Bidder as to whether such Potential Bidder has submitted 

acceptable Preliminary Bid Documents, (ii) provide copies of any such notices to the Notice Parties 

and the Stalking Horse Purchaser, and (iii) provide copies of any such Preliminary Bid Documents 

to the Consultation Parties. Only those Potential Bidders that have submitted acceptable 

preliminary documentation (each, an “Acceptable Bidder”) to the reasonable satisfaction of the 

Debtors and their advisors, in consultation with the Consultation Parties, may submit bids to 

purchase the Assets.

VI. DUE DILIGENCE

The Debtors will provide instructions to Acceptable Bidders for accessing the virtual data 

room established by Moelis in connection with the Sale Transaction process (the “Data Room”). 

The Debtors will address all reasonable requests for additional information and due diligence 

access. The Debtors may refuse any party access to due diligence information, including access 

to the Data Room, in whole or in part and at any time, if the Debtors determine in their reasonable

business judgment after consultation with counsel that (i) access by such party may be harmful to 

the Debtors or their estates or (ii) such party has not established that it intends or has the capacity 

to consummate a Sale Transaction for the Assets in good faith. 

The due diligence period and the Data Room shall be open until the Bid Deadline (as 

defined below). After the Bid Deadline, the Debtors shall have no obligation to furnish due 

diligence information. The Debtors may, in the exercise of their reasonable business judgment 

and in consultation with their counsel and the Consultation Parties, extend a party’s time to conduct 

due diligence. 

The Debtors make no representation or warranty as to the information provided through 

this due diligence process or otherwise, including the documents in the Data Room, except as set 

forth in any executed definitive documents for the Sale. 

Each Acceptable Bidder and Bidder (as defined below) shall comply with all reasonable 

requests with respect to information and due diligence access by the Debtors or their advisors 

regarding such Acceptable Bidder or Bidder, as applicable, and its contemplated Sale Transaction.

II. NO COMMUNICATIONS AMONG BIDDERS

There shall be no communications regarding potential Bids, a potential Sale Transaction, 

or another potential transaction between or among any bidders, including the Stalking Horse 

Purchaser, unless the Debtors have previously authorized such communication in writing (such 

authorization, for the avoidance of doubt, email from the Debtors’ counsel being sufficient). 

The Debtors reserve the right, in their reasonable business judgment, to disqualify any bidder that 

the Debtors believe in their reasonable judgment has communicated with another bidder in 

violation of these Bid Procedures. 

For the avoidance of doubt, the joining of Bids between Potential Bidders or Acceptable 

Bidders is permitted; provided that, if any Potential Bidders or Acceptable Bidders are interested 

in joining Bids, the Debtors’ advisors will facilitate the communications between such parties and 

the potential joining of Bids. 

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VII. INDICATIONS OF INTEREST

The Debtors reserve the right to require Acceptable Bidders to submit written indications 

of interest prior to the Bid Deadline specifying, among other things, the Assets proposed to be 

acquired, the amount and type of consideration to be offered, and any other material terms to be 

included in a bid by such party; provided that the Consultation Parties shall have the right to review 

any indications of interest received by the Debtors. If an Acceptable Bidder fails to comply with 

any such request by the Debtors, the Debtors may deny such Acceptable Bidder further diligence 

access or deny such Acceptable Bidder further participation in the Auction process. The Debtors 

also reserve the right to exclude any Acceptable Bidder (prior to its submission of a Qualified Bid) 

from continuing in the Auction process if the Debtors determine that the consideration proposed 

to be paid by such Acceptable Bidder is insufficient. 

VIII. BID DEADLINES

Bids (including all requirements to be considered a Qualified Bid (defined below)) must 

be submitted in writing to the Notice Parties so as to be actually received by no later than January 

23, 2024 at 4:00 pm (prevailing Central Time) (the “Bid Deadline”).

IX. QUALIFIED BID REQUIREMENTS 

Only bids (“Bids”) and bidders that satisfy the following conditions will be considered or 

permitted to participate in the bidding, Auction, or Sale (each, a “Qualified Bid”) and the bidder(s) 

submitting a Qualified Bid, a “Qualified Bidder”):

a. Timeliness. The Bid must be in writing and timely and properly submitted in 

accordance with the Bid submission process set forth below, including successful 

and timely delivery of the Good Faith Deposit (defined below). 

b. Identity of Bidder. The Bid must fully disclose the identity of each person or 

entity that is participating in the Bid (and the complete terms of such participation)

and each such person or entity shall have delivered an executed NDA to the Debtors 

in accordance with the instructions set forth above. “Participation” in a Bid 

includes persons or entities that are equity holders in an entity specially formed 

for the purpose of effectuating a Sale Transaction for the Assets.

c. Proposed Transaction Perimeter and Purchase Price. The Bid must propose a 

Sale Transaction for substantially all of the Debtors’ Assets or identify with the 

precision customary for a sale of this type the Assets included in such Bid and 

identify (a) the cash consideration to be paid (or the amount of any credit bid as 

allowed herein) for the Assets included in the Bid and (b) any liabilities to be 

assumed as part of the proposed acquisition, including a reasonable estimate of 

the cash value thereof (clauses (a) and (b) together, the “Proposed Purchase

Price”).

d. Proposed APA. The Bid must state that the bidder is prepared to consummate the 

transaction promptly following entry of an order approving the Sale and be 

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accompanied by (a) a purchase and sale agreement executed by the bidder (the 

“Proposed APA”), a form of which will be available in the Data Room (the “Form

APA”), (b) a redline of the Proposed APA against the Form APA, and (c) evidence 

of authorization and approval from the board (or comparable governing body) of 

each person or entity participating in the Bid with respect to the submission, 

execution, delivery, and performance of the Bid and Proposed APA. 

e. Lack of Contingencies; Binding Bid. The Bid must be (a) unqualified and not 

subject to any contingencies or conditions (including any further due diligence,

material financing conditions, internal approval (such as but not limited to board 

approval)) and (b) include a written commitment by the applicable Potential 

Bidder to serve as Backup Bidder in the event that such Bid is not selected as the 

Winning Bid and will be binding and irrevocable until (i) if such bid is the Winning 

Bid or a Backup Bid, the earlier of (x) the closing of the Sale or (y) 45 days after 

the conclusion of the Auction (or, if no Auction is held, 45 days after the date on 

which the Debtors file a notice of cancellation of Auction) or (ii) two (2) business 

days after entry of an order approving the Winning Bid and (if applicable) the 

Backup Bid for the applicable Assets (such order, a “Sale Order”). 

f. Regulatory and Third-Party Approvals. The Bid must set forth each regulatory 

and third-party approval required for the bidder to consummate the proposed Sale 

Transaction(s), if any, and the date by which the bidder expects to receive such 

approvals, and those actions the bidder will take to ensure receipt of such 

approvals as promptly as possible. 

g. Adequate Assurance Information. The Bid must include financial and other 

information sufficient for the Debtors, in consultation with the Consultation 

Parties, to make a reasonable determination as to the bidder’s financial and other 

capabilities to consummate the transactions contemplated by the Proposed APA 

by no later than February 12, 2024, including (a) the availability of funds to satisfy 

the Proposed Purchase Price and (b) information constituting adequate assurance

of future performance under contracts and leases to be assumed pursuant to section 

365 of the Bankruptcy Code (if any) (“Adequate Assurance Information”), which 

information the Debtors may request be supplemented or altered such that it can be 

served on counterparties to any contracts or leases to be assumed and assigned in

connection with the Sale that request such information. Provision of the Adequate 

Assurance Information to the Debtors shall, and shall be deemed to, constitute 

consent by the bidder for the Debtors to share such Adequate Assurance 

Information with the counterparties under Potential Assumed Contracts and 

Designated Contracts on a confidential basis; provided that the Debtors shall not 

be required to enter into any nondisclosure or similar agreement with such 

counterparties to provide the Adequate Assurance Information and shall not be 

liable for such counterparties’ failure to abide by the confidentiality of the 

Adequate Assurance Information. 

h. Identification of Assigned Contracts. The Bid must identify any and all 

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executory contracts and unexpired leases to which the Debtors are a party that the

bidder wishes to have assumed and assigned to it in connection with the Sale (if

any). The bidder shall be solely responsible for the payment of any cure costs

required pursuant to section 365 of the Bankruptcy Code.

i. Management and Employee Obligations. Each Bid must indicate whether the 

bidder intends to hire all or some of the employees who are primarily employed in 

connection with the Assets to be included in the proposed Sale Transaction. 

j. As-is, Where-is. Each Bid must include a written acknowledgement and 

representation that the bidder: (1) has had an opportunity to conduct any and all 

due diligence regarding the proposed Sale Transaction(s) prior to making its offer; 

(2) has relied solely upon its own independent review, investigation, or inspection 

of any documents in making its Bid; (3) did not rely upon any written or oral 

statements, representations, promises, warranties, or guaranties whatsoever, 

whether express, implied by operation of law, or otherwise, by the Debtors or their 

advisors or other representatives regarding the Sale Transaction or the 

completeness of any information provided in connection therewith or the Auction 

(if any); and (4) did not engage in any collusive conduct and acted in good faith in 

submitting its Bid.

k. Expected Closing Date. Each Bid must state the Acceptable Bidder’s expected 

date of closing the applicable Sale.

l. Lack of Bid Protections. Unless consented to in writing by the Debtors and

approved by the Court (and excluding the Stalking Horse Bid), the Bid must not 

request or entitle the bidder to any break-up fee, topping fee, expense 

reimbursement, or similar type of payment (and by submitting a bid, a bidder shall

be deemed to have waived its right to pursue a substantial contribution claim under 

section 503 of the Bankruptcy Code in any way related to the submission of its bid 

or these Bid Procedures) or indemnification by the Debtors in favor of the bidder.

m. Bidder’s Contact Information. The Bid must include contact information for 

the specific person(s) the Debtors should contact in the event they have questions 

regarding the bid.

By submitting a Bid, a bidder is deemed to acknowledge (and shall represent in any 

definitive document) that (i) it has had an opportunity to inspect and examine the Assets and to 

conduct any and all due diligence prior to submitting its bid, (ii) it has relied solely upon its own 

independent review, investigation, and/or inspection of the Assets and any documents in 

submitting its bid, (iii) it did not rely upon any written or oral statements, representations, 

promises, warranties, or guaranties whatsoever, whether express or implied by operation of law or 

otherwise, regarding the Debtors’ business, the Assets, or the completeness of any information 

provided in connection with the Bid Procedures or the Sale process.

By submitting a Bid, each bidder is agreeing, and shall be deemed to have agreed, to abide 

by and honor the terms of the Bid Procedures and to refrain from (A) submitting a Bid after 

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conclusion of the Auction (if any) or (B) seeking to reopen the Auction (if any) once closed. The 

submission of a Bid shall constitute a binding and irrevocable offer (a) for the Winning 

Bidder(s), until consummation of the Sale Transaction(s), (b) for the Backup Bidder (if any), 

as provided in these Bid Procedures, as provided herein, and (c) for any Bidder other than 

the Winning Bidder(s) and Backup Bidder, until two (2) business days after entry of an order 

approving the Winning Bid and (if applicable) the Backup Bid for the applicable Assets (such 

order, a “Sale Order”), and each Bid must include a written acknowledgement and 

representation to such effect.

As soon as reasonably practicable following the Bid Deadline, the Debtors, in consultation 

with the Consultation Parties, shall determine which Acceptable Bidders are Qualified Bidders and 

will notify the Acceptable Bidders whether Bids submitted constitute Qualified Bids, which will 

enable such Qualified Bidders to participate in the Auction. Any Bid that is not deemed a Qualified 

Bid shall not be considered by the Debtors; provided that if the Debtors receive a Bid prior to the 

Bid Deadline that does not satisfy the requirements of a Qualified Bid, the Debtors may provide 

the Acceptable Bidder with the opportunity to remedy any deficiencies prior to the Auction. The 

Stalking Horse Purchaser shall be deemed to be a Qualified Bidder, the Stalking Horse Bid shall 

be deemed a Qualified Bid, and the Stalking Horse Purchaser may participate in the Auction with 

respect to the Assets. 

The Debtors and their advisors shall maintain in confidence in accordance with the 

applicable executed NDA any information provided by a bidder that is designated as confidential, 

except as otherwise set forth in these Bid Procedures, and shall use such confidential information 

only in connection with the evaluation of Bids or otherwise in connection with the chapter 11 case 

or in accordance with the executed NDA. Notwithstanding the foregoing and any provisions in an 

executed NDA, the Debtors and Debtors’ advisors may disclose confidential information (i) with 

the prior written consent of the applicable bidder, (ii) to the applicable bidder, and (iii) as otherwise 

required or allowed by any applicable confidentiality agreement with respect to a particular bidder 

or other agreement, law, court, or other governmental order, or regulation, including, as 

appropriate, regulatory agencies. 

X. BID SUBMISSION AND EVALUATION PROCESS; GOOD FAITH DEPOSITS 

Concurrent with the submission of its Bid, and in no event later than the Bid Deadline, a 

bidder must deposit with the Debtors in cash 2.6% of the bidder’s Proposed Purchase Price (the 

“Good Faith Deposit”), which shall be refundable as described below. Bank information for the 

Debtors will be included in the Data Room. The Debtors, in their business judgment, after 

consultation with the Consultation Parties, may elect to waive or modify the requirement of a Good 

Faith Deposit on a case-by-case basis. 

Each bidder shall comply with all reasonable requests by the Debtors for additional 

information and due diligence access regarding the ability of a bidder to consummate the Sale. A 

bidder’s failure to comply with such requests may be a basis for the Debtors to determine such 

bidder is not a Qualified Bidder and the associated Bid is not a Qualified Bid. 

Notwithstanding anything herein to the contrary, the Debtors, in consultation with the 

Consultation Parties, reserve the right to work with (A) Potential Bidders and Acceptable Bidders 

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to aggregate two or more Bids into a single consolidated Bid prior to the applicable Bid Deadline 

and (B) Qualified Bidders to aggregate two or more Qualified Bids into a single Qualified Bid 

prior to the conclusion of the Auction (if any). The Debtors reserve the right to cooperate with 

any Acceptable Bidder to cure any deficiencies in a Bid that is not initially deemed to be a 

Qualified Bid. The Debtors may accept a single Qualified Bid or multiple Bids that, if taken 

together in the aggregate, would otherwise meet the standards for a single Qualified Bid (in which 

event those multiple bidders shall be treated as a single Qualified Bidder and their Bid a single 

Qualified Bid for purposes of the Auction (if any)). 

The Debtors shall determine, in their reasonable business judgment, in consultation with the 

Consultation Parties, (i) which Bids meet the criteria to qualify as a Qualified Bid and (ii) if there 

is more than one Qualified Bid, which Qualified Bid will serve as the baseline Bid at the 

commencement of the Auction to facilitate obtaining the highest and best value for the Debtors’ 

estates. Any Bid that does not meet the criteria for a Qualified Bid set forth above shall be rejected 

as a non-conforming bid. 

The Debtors shall determine, in their reasonable judgment after consultation with the 

Debtors’ financial and legal advisors, and the Committee, if any, and with the Administrative 

Agent’s consent, so long as no prepetition secured party has submitted a Qualified Bid and with 

such consent not to be unreasonably withheld, which of the Qualified Bids is likely to result in the 

highest and best value to the Debtors’ estates (the “Initial Highest Bid”). 

Not later than 24 hours before the commencement of the Auction, to the extent feasible, 

the Debtors will provide to those participating in the Auction (the “Auction Participants”) and the 

Consultation Parties a copy of the Initial Highest Bid. To allow the Auction Participants to 

evaluate the Initial Highest Bid, the Debtors shall use commercially reasonable efforts to disclose 

the value that, in their business judgment, and with the Administrative Agent’s consent, so long as 

no prepetition secured party has submitted a Qualified Bid and with such consent not to be 

unreasonably withheld, and in consultation with the Committee, if any, they place on the Initial 

Highest Bid. The Debtors shall also use commercially reasonable efforts to disclose to each 

Auction Participant the value that, in their business judgment, they place on such Auction 

Participant’s Qualifying Bid.

XI. STALKING HORSE AND BID PROTECTIONS

Notwithstanding anything herein to the contrary, the Stalking Horse Purchaser shall not be 

required to submit an additional Qualified Bid prior to the Auction. To provide the Stalking Horse 

Purchaser with an incentive to participate in a competitive process and to compensate the Stalking 

Horse Purchaser for (i) performing substantial due diligence and incurring the expenses related 

thereto and (ii) entering in the Stalking Horse APA with the knowledge and risk that arises from 

participating in the sale and subsequent bidding process, the Debtors have agreed to, pursuant to 

the terms of the Bid Protections Order and the Stalking Horse APA, (x) a break-up fee (the “BreakUp Fee”) equal to $450,000 and (y) the reimbursement from the Debtors of reasonable, 

documented out of pocket fees, costs and expenses of the Stalking Horse Purchaser incurred in 

connection with the Stalking Horse APA up to an amount equal to $300,000, each as and to the 

extent more fully described in the Stalking Horse APA (the “Expense Reimbursement,” and 

together with the Break-Up Fee, the “Bid Protections”).

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XII. NO QUALIFIED BIDS

If no Qualified Bids other than the Stalking Horse Bid are received by the Bid Deadline, then 

the Debtors shall cancel the Auction and designate the Stalking Horse Bid as the Winning Bid, and 

pursue entry of a Sale Order approving the Sale to the Stalking Horse. If the Debtors make such 

a determination, the Debtors shall file a notice with the Bankruptcy Court within one (1) business 

day of making such determination.

XIII. AUCTION

If the Debtors receive more than one timely Qualified Bid, the Debtors shall conduct an 

auction (the “Auction”) at 9:00 A.M. (prevailing Central Time) on January 29, 2024 (which 

date may be modified by the Debtors in their business judgment with the consent of the 

Administrative Agent) virtually or at such other place as agreed by the Debtors, the Administrative 

Agent, and Committee, or approved by order of the Court, and of which the Debtors will notify 

the Auction Participants. The Auction will be subject to the following rules: 

a. Attendance and Participation. Only Qualified Bidders may participate in or 

make subsequent Bids at the Auction. Only the Debtors, Qualified Bidders,

Consultation Parties, the United States Trustee, and such parties’ representatives 

and advisors may attend the Auction; provided that Qualified Bidders may appear

through a duly authorized representative bearing a valid and enforceable power of 

attorney or other written proof evidencing their ability to bind the applicable 

Qualified Bidder, which document(s) shall be delivered to the Debtors prior to the

commencement of the Auction.

b. Confirmation of Good Faith. Each Qualified Bidder will be required to confirm 

on the record at the Auction that (a) it has not engaged in any collusion with respect 

to the bidding or Sale and (b) its Qualified Bid and any subsequent Bid, is a goodfaith bona fide offer and it intends to consummate the proposed sale if selected as 

a Winning Bidder. 

c. Transcript. The Debtors shall maintain a written transcript of all Bids made and 

announced at the Auction, including the Baseline Bid, all Overbids, and the 

Winning Bid (and Backup Bid, as applicable). 

d. Terms of Overbids. 

a. Minimum Overbid Requirement. The Auction will begin at the Initial 

Highest Bid, and each Qualified Bidder may submit subsequent Bids for the 

Proposed Purchase Price in minimum overbid increments of at least 

$250,000 over the amount of the Proposed Purchase Price in the highest or 

otherwise best Bid at that time (“Overbids”); provided that if the Stalking 

Horse Bid is the Initial Highest Bid, the initial overbid amount shall be also 

include an amount necessary, in the Debtors’ determination, to satisfy the 

Stalking Horse Purchaser’s Bid Protections in cash; and provided furtherthat

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the Debtors, in consultation with their advisors and the Consultation Parties, 

shall retain the right to modify the overbid increment at the Auction without 

any additional or prior notice. 

b. Conclusion of Each Overbid Round. Upon the solicitation of each round of 

Overbids, the Debtors may announce a deadline by which time any 

Overbids must be submitted to the Debtors (an “Overbid Round Deadline”); 

provided that the Debtors, in their reasonable business judgment and in 

consultation with the Consultation Parties, may extend any Overbid Round 

Deadline.

c. Overbid Alterations. An Overbid may contain alterations, modifications, 

additions, or deletions of any terms of the Bid no less favorable in the 

aggregate to the Debtors’ estates than any prior Qualified Bid or Overbid, 

as determined in the Debtors’ business judgment, in consultation with the 

Consultation Parties, but shall otherwise comply with the terms of the Bid 

Procedures. For the avoidance of doubt, the Stalking Horse Purchaser shall 

not be required to include an amount in cash necessary to satisfy the Bid 

Protections as part of any Overbid. 

d. Announcing Highest Bid. Subsequent to each Overbid Round Deadline, the 

Debtors shall announce whether the Debtors, with the Administrative 

Agent’s consent, so long as no prepetition secured party has submitted a 

Qualified Bid and with such consent not to be unreasonably withheld, have 

identified an Overbid as being higher or otherwise better than the Starting 

Bid, in the initial Overbid round, or, in subsequent rounds, the Overbid 

previously designated by the Debtors as the prevailing highest or otherwise 

best Bid (the “Prevailing Highest Bid”). The Debtors shall describe to all 

applicable Qualified Bidders the material terms of any new Overbid 

designated by the Debtors as the Prevailing Highest Bid, as well as the value 

attributable by the Debtors to such Prevailing Highest Bid. 

e. Consideration of Overbids. The Debtors reserve the right, in their business 

judgment, in consultation with the Consultation Parties, to adjourn the Auction one 

or more times, to, among other things (1) facilitate discussions between the Debtors 

and Qualified Bidders, (2) allow Qualified Bidders the opportunity to consider how 

they wish to proceed, and (3) provide Qualified Bidders the opportunity to provide 

the Debtors with such additional evidence as the Debtors, in their business 

judgment, may require, that the Qualified Bidder has sufficient internal resources 

or has received sufficient non-contingent financing commitments to consummate 

the proposed Sale Transaction(s) at the prevailing Overbid amount. 

f. No Round-Skipping. To remain eligible to participate in the Auction, in each 

round of bidding, each Qualified Bidder must submit an Overbid with respect to 

such round of bidding and to the extent a Qualified Bidder fails to submit an 

Overbid with respect to such round of bidding, such Qualified Bidder shall be 

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disqualified from continuing to participate in the Auction; provided that the Debtors 

may waive such requirement in their business judgment. 

g. Reimbursable Expenses for the Stalking Horse Purchaser. For the Auction, the 

Debtors will take into account the Bid Protections in each round of bidding. The 

Bid Protections shall be payable as set forth in the Bid Procedures Order. 

h. Closing the Auction. The Auction shall continue until there is only one Qualified 

Bid that the Debtors determine, in their business judgment and in consultation with 

their advisors and the Committee, if any, and with the consent of the Administrative 

Agent, so long as no prepetition secured party has submitted a Qualified Bid and 

with such consent not to be unreasonably withheld, to be the highest or otherwise 

best Qualified Bid for the applicable Assets. Such Qualified Bid shall be designated 

the “Winning Bid” for such Assets and the Qualified Bidder submitting such 

Qualified Bid shall be designated the “Winning Bidder,” at which time the Auction 

with respect to such Assets shall be closed. The Debtors, in consultation with their 

advisors and the Consultation Parties, may also designate a bid that is the next 

highest or otherwise best after the Winning Bid (the “Backup Bid”) and the Qualified 

Bidder submitting the Backup Bid shall be the backup bidder (the “Backup 

Bidder”). In no case shall such Auction close unless and until all Qualified Bidders 

have been given a reasonable opportunity to submit an Overbid at the Auction to 

the then Prevailing Highest Bid. The Debtors’ designation of a Qualified Bid as a 

Winning Bid (or Backup Bid, as applicable) shall be subject to and conditioned on 

the Bankruptcy Court’s approval of such Winning Bid (or Backup Bid, as 

applicable) and the Sale Transaction(s) contemplated thereby. As soon as 

reasonably practicable after the designation of a Winning Bid (or Backup Bid, as 

applicable), the Debtors shall finalize definitive documentation to implement the 

terms of such Winning Bid (or Backup Bid, as applicable) and cause such definitive 

documentation to be filed with the Bankruptcy Court. 

i. Credit Bidding. Any party that has a valid and perfected lien on any of the Assets 

(a “Secured Creditor”) shall have the right to credit bid all or any portion of the 

Secured Creditor’s claim on a dollar-for-dollar basis pursuant to section 363(k) of 

the Bankruptcy Code; provided that a Secured Creditor shall have the right to credit 

bid its claim only with respect to the collateral by which such Secured Creditor is 

secured and only to the extent such credit bid is permitted under any relevant 

agreements and the Bankruptcy Code; provided further, however, that any credit 

bid must include a cash component equal to or exceeding the amount of the Bid 

Protections. Subject to Section II of these Bid Procedures, any Secured Creditor 

shall be deemed to be a Qualified Bidder, shall be deemed to have submitted a 

Qualified Bid, and may participate in the Auction with respect to the assets, 

provided that no other party other than the Administrative Agent may credit bid on 

the Collateral (as defined in the Cash Collateral Order) unless the entire amount of 

the allowed prepetition term loan secured indebtedness will be paid in full in cash 

on the closing of such credit bid transaction. 

j. Rejection of Bids. The Debtors in their reasonable business judgment, in 

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consultation with the Consultation Parties, may reject, at any time before entry of 

an order of the Bankruptcy Court approving a Successful Bid (or Backup Bid, as 

applicable), any Bid that the Debtors determine is (1) inadequate or insufficient, (2) 

not in conformity with the requirements of the Bankruptcy Code and/or the Bid 

Procedures, or (3) contrary to the best interests of the Debtors, their estates, their 

creditors, and other stakeholders. 

k. Adjustment of Deposit. The Winning Bidder(s) and Backup Bidder(s) shall have 

one (1) business day from the announcement of the Winning Bid and Backup Bid

to deposit with the Debtors in cash an amount sufficient to increase such bidder’s 

Good Faith Deposit to 10% of the Proposed Purchase Price provided for in the 

Winning Bid or Backup Bid, as applicable.

l. Announcement of Winning Bid and Backup Bid. As soon as reasonably 

practicable after conclusion of the Auction, the Debtors shall file with the Court a 

notice of the results of the Auction (the “Notice of Winning Bid”), which shall 

include (i) a copy of the Winning Bid and Backup Bid, (ii) the identities of the 

Winning Bidder(s) and Backup Bidder(s), and (iii) a list of all executory contracts 

and unexpired leases proposed to be assumed and assigned as part of the Sale (if

any) and the cure cost pursuant to section 365(b) associated with each.

The Debtors, in consultation with the Consultation Parties, may adopt such other rules for 

the Auction (including procedural rules and rules that may depart from those set forth herein) that

they reasonably determine will result in the highest or otherwise best value for the Debtors’ estates

and that are not inconsistent with any Court order; provided that any changed or additional rules

of the Auction are not materially inconsistent with these Bid Procedures, do not favor one Qualified

Bidder over another, and are communicated to all participants substantially simultaneously at or 

prior to the Auction. 

XIV. SALE 

A hearing to approve the Sale of the Assets to the Winning Bidder(s) in accordance with 

the terms of the Winning Bid and pursuant to the Proposed APA associated therewith (the “Sale

Hearing”) will take place on February 1, 2024 at 9:30 A.M. (prevailing Central time). 

a. If, for any reason, a Winning Bidder fails to timely consummate the purchase of the 

Assets, the Debtors, in consultation with the Committee, if any, and with the 

Administrative Agent’s consent, not to be unreasonably withheld, may seek to 

consummate a Sale to the Backup Bidder in accordance with the terms of the 

Backup Bid and pursuant to the Proposed APA associated therewith without further 

approval by the Court (in which case the Backup Bidder shall be deemed the 

Winning Bidder). 

b. If a Winning Bidder fails to timely consummate the purchase of the Assets due to 

a breach or failure to perform on the part of the Winning Bidder, the defaulting 

Winning Bidder’s Good Faith Deposit shall be forfeited to the Debtors and the 

Debtors specifically reserve the right to seek all available damages from the 

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defaulting Winning Bidder.

c. The Backup Bid(s) and the obligation of the Backup Bidder(s) to consummate the 

purchase of the Assets shall remain open and in full force, including with respect 

to the Backup Bidder’s Good Faith Deposit, until the earlier of (a) the closing of a 

Sale of the Assets to a Winning Bidder or Backup Bidder or (b) 45 days after the 

conclusion of the Auction (or, if no Auction is held, 45 days after the date on which 

the Debtors file a notice of cancellation of Auction).

d. The Winning Bidder(s) and Backup Bidder(s) shall appear at the Sale Hearing 

personally or through a duly authorized representative who shall be prepared to 

testify in support of the Winning Bid(s) and the Winning Bidder’s, or Backup 

Bid(s) and Backup Bidder’s, ability to close the Sale in a timely manner and provide 

adequate assurance of future performance under any and all executory contracts and

unexpired leases to be assumed and assigned as part of the Sale.

Any objections to the proposed Sale, including objections to the proposed assumption and 

assignment of any executory contract or unexpired lease (including any proposed cure cost), must 

be filed with the Court no later than January 25, 2024 at 4:00 pm (prevailing Central time); 

provided, however that any objections solely on the basis of adequate assurance of future

performance by the Winning Bidder or Backup Bidder must be filed no later than January 30, 

2024, at 4:00 p.m. (CT).

The Debtors and the Winning Bidder(s) shall consummate the Sale no later than February 

12, 2024. At the closing of the Sale, the Winning Bidder(s) will be entitled to a credit for the

amount of its Good Faith Deposit.

XV. RETURN OF GOOD FAITH DEPOSITS 

The Good Faith Deposits shall be held in a non-interest-bearing account established and 

held by, and in the name of, the Debtors. The Good Faith Deposits are not property of the Debtors 

or their estates.

Within five (5) business days of determining a Bid does not qualify as a Qualified Bid, the 

Debtors shall return by check or wire the full amount of the Good Faith Deposit submitted in 

connection with such non-qualified Bid. Within five (5) business days of the conclusion of the 

Auction, the Debtors shall return by check or wire the full amount of each Good Faith Deposit 

submitted by a party that is not selected as the Winning Bidder(s) or Backup Bidder(s).

Unless a Sale is consummated with such bidder or the Good Faith Deposit is forfeited as 

provided above, the full amount of the Winning Bidder’s or Backup Bidder’s Good Faith Deposit, 

as applicable, shall be returned by check or wire within five business days of earlier of (i) the 

closing of the Sale or (ii) 45 days after the conclusion of the Auction (or, if no Auction is held, 45 

days after the date on which the Debtors file a notice of cancellation of Auction).

All Good Faith Deposits shall be returned within five business days of the entry of an order 

dismissing or converting the chapter 11 case under section 1112 of the Bankruptcy Code if such 

dismissal or conversion occurs prior to the consummation of a Sale.

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XVI. BID PROTECTIONS

No bidder, whether or not a Qualified Bidder, shall be entitled to bid protections, other than 

those Bid Protections provided for in the Stalking Horse APA for the Stalking Horse Purchaser,

unless consented to in writing by the Debtors and approved by the Court. The Debtors reserve

the right to seek, in consultation with their advisors and the Consultation Parties, approval of bid 

protections from the Court on emergency notice to the extent the Debtors determine, in their 

business judgment, that such bid protections are necessary or advisable under the circumstances 

to facilitate obtaining the highest and best value for the Debtors’ estates.

XVII. RESERVATION OF RIGHTS

The Debtors reserve their rights to modify these Bid Procedures in their business judgment, 

subject to the consent of the Administrative Agent, not to be unreasonably withheld, and in 

consultation with the Committee, if any, in any manner that will best promote the goals of these

Bid Procedures or impose additional customary terms and conditions on the Sale, including 

extending the deadlines set forth herein, adjourning the Auction or the Sale Hearing, adding 

procedural rules that are reasonably necessary or advisable under the circumstances to conduct the 

Auction, cancelling the Auction, and rejecting any or all Bids or Qualified Bids.

XVIII.CONSENT TO JURISDICTION

All Qualified Bidders at the Auction shall be deemed to have consented to the jurisdiction 

of the Court and waived any right to a jury trial in connection with any disputes relating to the 

Auction or the construction and enforcement of these Bid Procedures.

XIX. FIDUCIARY DUTIES

Notwithstanding anything to the contrary in the Bid Procedures or any document filed with 

or entered by the Bankruptcy Court, nothing in the Bid Procedures or the Bid Procedures Order 

shall require a Debtor or its board of directors, board of managers, or similar governing body to 

take any action or to refrain from taking any action with respect to any Sale Transaction(s) or the 

Bid Procedures to the extent such Debtor or governing body determines in good faith, in 

consultation with counsel, that taking or failing to take such action, as applicable, would be 

inconsistent with applicable law or its fiduciary obligations under applicable law.

Further, notwithstanding anything to the contrary in the Bid Procedures or any document 

filed with or entered by the Bankruptcy Court, until the closing of the Auction (if any), the Debtors 

and their respective directors, managers, officers, employees, investment bankers, attorneys, 

accountants, consultants, and other advisors or representatives shall have the right to: (A) consider, 

respond to, and facilitate unsolicited alternate proposals for sales or other transactions involving 

any or all of the Assets (each, an “Alternate Proposal”); (B) provide access to non-public 

information concerning the Debtors to any entity or enter into reasonable and customary 

confidentiality agreements or nondisclosure agreements with any entity; (C) maintain or continue 

discussions or negotiations with respect to Alternate Proposals; (D) otherwise cooperate with, 

assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiations of Alternate 

Proposals; and (E) enter into or continue discussions or negotiations with any person or entity 

regarding any Alternate Proposals.

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Dated: January 9, 2024

Dallas, Texas SIDLEY AUSTIN LLP

/s/ Rakhee V. Patel 

Samuel A. Newman (admitted pro hac vice)

555 West Fifth Street

Los Angeles, California 90013

Telephone: (213) 896-6000

Facsimile: (213) 896-6600

Email: sam.newman@sidley.com

Rakhee V. Patel (TX Bar No. 00797213)

Nathan C. Elner (admitted pro hac vice)

Parker G. Embry (TX Bar No. 24126826)

Chelsea M. McManus (TX Bar No. 24131499)

2021 McKinney Avenue, Suite 2000

Dallas, Texas 75201

Telephone: (214) 981-3300

Facsimile: (214) 981-3400

Email: rpatel@sidley.com

nelner@sidley.com

parker.embry@sidley.com

cmcmanus@sidley.com

Jackson T. Garvey (admitted pro hac vice)

One South Dearborn

Chicago, IL 60603

Telephone: (312) 853-7000

Facsimile: (312) 853-7036

Email: jgarvey@sidley.com

Proposed Counsel to the Debtors and Debtors in 

Possession

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SCHEDULE 1

Form NDA

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[DATE]

CONFIDENTIAL

[Interested Party] 

[Address Line 1] 

[Address Line 2] 

Ladies and Gentlemen:

In connection with the consideration of a possible negotiated transaction (a “Transaction”) 

between [Interested Party] (“[Name]” or “you”) and Impel Pharmaceuticals, Inc., a Delaware 

corporation (and/or Impel NeuroPharma Australia Pty Ltd (each, a “Debtor,” collectively the 

“Debtors” or the “Company,” and, together with [Name], the “Parties” and each of them, a 

“Party”)), the Company has furnished or may furnish to you certain information that is proprietary, 

non-public and/or confidential concerning it, its affiliates or subsidiaries and/or its business, 

including Confidential Information (as defined below in Section 1). 

1. As a condition to furnishing such information to you, the Company requires that 

you agree to treat, and direct your Representatives (as defined below in this Section 1) to treat, 

confidentially any information, data, forecasts, financial or business plans and affairs, projections, 

products and product development plans, marketing plans, information regarding customers, 

clients, employees, contracts and contract terms, inventions, processes, intellectual property or 

know-how (whether prepared by a party, its affiliates, subsidiaries, agents, advisors or otherwise, 

and whether oral, written or electronic) that the Company or any of its Representatives has 

furnished or may hereafter furnish to you or your Representatives, or is otherwise received by you 

or your Representatives through due diligence investigation or discussions with employees or other 

Representatives of the Company, together with all analyses, summaries, notes, forecasts, studies, 

data and other documents and materials in whatever form maintained, whether prepared by the 

Company or you or their respective Representatives or others, which contain or reflect, or are 

generated from, any such information (being collectively referred to herein as “Confidential 

Information”), and to take or abstain from taking certain other actions set forth herein. As used 

herein, the term “Representative” means, when used with respect to any party, such party’s 

subsidiaries and affiliates and its and its subsidiaries’ and affiliates’ respective directors, officers, 

employees, affiliates, consultants, attorneys, agents, counsel, advisors and other representatives; 

provided that the term “Representative” with respect to you shall not include (a) any potential 

co-investors, equity partners or participants in a Transaction, or any other equity financing sources 

(including any of your investors, equity holders or limited partners), in each case without our prior 

written consent (and, upon such consent, shall be so included), (b) any potential debt financing 

sources without our prior written consent (and, upon such consent, shall be so included) or (c) any 

of your portfolio companies, including the directors, officers or employees of any such portfolio 

companies (in their capacity as such), without our prior written consent (and, upon such consent, 

shall be so included).

2. The term “Confidential Information” does not include information that (a) is 

already in your possession as shown by your files and records immediately prior to the time of 

disclosure; provided that such information is not known by you to be subject to a legal, contractual 

or fiduciary obligation of confidentiality to the Company or any other party with respect to such 

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[Interested Party]

[DATE], 2024 

information, (b) is or becomes generally available to the public other than as a result of a breach of 

the terms hereof by you or your Representatives, (c) is received by you on a non-confidential basis 

from a source other than the Company or its Representatives; provided that such source is not 

known by you to be bound by a legal, contractual or fiduciary obligation of confidentiality to the 

Company or any other party with respect to such information, or (d) is independently developed by 

you or your Representatives without reference to, reliance on or use of any Confidential 

Information. 

3. You hereby agree that the Confidential Information will be used by you and your 

Representatives solely for the purpose of evaluating, proposing or negotiating a possible 

Transaction and for no other purpose, and will be kept confidential by you and your Representatives 

and will not be disclosed to any other person; provided that any of such information may be 

disclosed to your Representatives who need to know such information solely for the purpose of 

evaluating any such possible Transaction and who have been advised of this letter agreement and 

the confidential nature of the Confidential Information and the Transaction Information (as defined 

below in Section 7) and have agreed in writing to comply with the terms hereof (other than 

Section 11) to the same extent as if such Representative were a party hereto. Any action by any of 

your Representatives that would constitute a breach of this letter agreement if taken by you (other 

than Section 11) shall be deemed to constitute a breach of this letter agreement by you. 

Furthermore, you hereby agree, at your sole expense, to take all reasonable measures (including 

court proceedings) to restrain your Representatives from prohibited or unauthorized disclosure or 

use of such Confidential Information. You understand that the Company reserves the right to adopt 

additional specific procedures to protect the confidentiality of the Confidential Information and 

may seek to limit the disclosure or use of, and may establish additional specific procedures with 

respect to the access of, competitively sensitive Confidential Information. The Confidential 

Information shall remain the property of the Company, and disclosure to you shall not confer on 

you any rights (including any intellectual property rights) with respect to such Confidential 

Information, other than limited use rights specifically set forth in this letter agreement. You agree 

that you will take all reasonable measures to protect the secrecy of and avoid disclosure or use of 

Confidential Information in order to prevent it from falling into the public domain or the possession 

of any person or entity other than those persons or entities authorized hereunder to have any such 

information, which measures shall include the highest degree of care that you utilize to protect your 

own Confidential Information of a similar nature. You also agree to notify the Company in writing 

promptly of any unauthorized disclosure, misuse or misappropriation of the Confidential 

Information that comes to your attention. 

4. You hereby acknowledge that you are aware, and that you will advise your 

Representatives who are informed or, to your knowledge, become aware of the matters that are the 

subject of this letter, that the United States securities laws prohibit any person who has received 

from an issuer material, nonpublic information from purchasing or selling securities of such issuer 

or from communicating such information to any other person under circumstances in which it is 

reasonably foreseeable that such person is likely to purchase or sell such securities.

5. In the event that you or any of your Representatives receives a request, or is legally 

required, to disclose all or any part of the information contained in the Confidential Information 

under the terms of a subpoena or order issued by a court or governmental or regulatory body of 

competent jurisdiction or under any applicable law, governmental proceeding or stock exchange 

rule, you agree to (a) except to the extent prohibited by applicable law, immediately notify the 

Company of the existence, terms and circumstances surrounding such a request or requirement so 

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[Interested Party]

[DATE], 2024 

that the Company may, at its expense, seek an appropriate protective order or other remedy and/or 

waive compliance with the applicable provisions of this letter agreement (and, if the Company 

seeks such an order or other remedy, you agree to provide such cooperation as the Company may 

reasonably request at its expense) and (b) if disclosure of such information is legally permitted, 

notify the Company in writing of such information to be disclosed as far in advance of its disclosure 

as practicable, exercise reasonable best efforts to obtain an order or other reliable assurance that 

confidential treatment will be accorded to such of the disclosed information that the Company so 

designates and then disclose only that portion of the Confidential Information that is legally 

required to be disclosed. Without limiting the foregoing, you will not oppose any action by the 

Company to obtain an appropriate protective order or other remedy with respect to such 

information. 

6. Without the prior written consent of the Company, you will not, and will cause 

your Representatives not to, enter into any agreement, arrangement or understanding with any other 

person that limits, restricts or otherwise impairs in any manner, directly or indirectly, such person 

from making a proposal for, or engaging in discussions, conducting due diligence or entering into 

an agreement with respect to, any potential transaction between such person and the Company or 

the provision of financing in connection with a potential transaction involving the Company. You 

represent and warrant that, except as disclosed to the Company or its legal advisors prior to your 

execution of this letter agreement, neither you nor any Representative of yours have, prior to your 

execution of this letter agreement, taken any of the actions referred to in this Section 6; provided 

that, subject to obtaining the Company’s prior written consent with respect to including any 

potential equity or debt financing source as your Representative as provided in Section 1, nothing 

shall prohibit or restrict you from entering into customary “tree” arrangements with such financing 

institutions by which a deal team at each institution works on obtaining or providing potential debt 

financing for you for the Transaction (and is not permitted to work on obtaining or providing 

potential debt financing for any other bidder pursuing the Transaction, but other deal teams at such 

institution may do so).

7. Without the prior written consent of the Company, you will not, and will cause 

your Representatives not to, disclose to any person (other than to your Representatives who need 

to know such information solely for the purpose of a possible Transaction and who have been 

advised of this letter agreement and the confidential nature of such information and have agreed in 

writing to comply with the terms hereof (other than Section 11) to the same extent as if they were 

a party hereto): (a) the fact that investigations, discussions or negotiations between the Parties are 

taking place or have taken place concerning a possible Transaction, (b) any of the terms, conditions 

or other facts with respect to any such possible Transaction, including the status thereof or the other 

Party’s consideration of a possible Transaction, or (in your case) any opinion or view with respect 

to the Confidential Information or the Company, (c) that the Parties or any of their respective 

affiliates or subsidiaries are or have been considering or reviewing a transaction involving or 

relating to the other Party or (d) that this letter agreement exists or that Confidential Information 

has been requested or made available to you or your Representatives (clauses (a) through 

(d) collectively, “Transaction Information”). 

8. This letter agreement does not constitute or create any obligation of the Company 

to provide any information to you. The Company may at any time in its sole discretion decline to 

provide you with any Confidential Information, deny your access to any electronic data room or 

terminate further discussions with you regarding a Transaction. You understand that neither the 

Company nor any of its Representatives have made or make any express or implied representation 

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[Interested Party]

[DATE], 2024 

or warranty as to the accuracy or completeness of any Confidential Information, and agree that 

neither the Company nor its Representatives shall have any liability to you or your Representatives 

or stockholders on any basis (including in contract, tort, under federal or state securities laws or 

otherwise), and neither you nor your Representatives will make any claims whatsoever against such 

other persons, with respect to or arising out of the review of or use or content of any Confidential 

Information or any errors therein or omissions therefrom, or any action taken or any inaction 

occurring in reliance on any Confidential Information, in each case, except as may be expressly 

provided in any definitive agreement with respect to any Transaction. You and your 

Representatives agree not to assert any claim of title or ownership to the Confidential Information, 

nor does this Agreement grant you or your Representatives any licenses in respect of any such 

information. If Confidential Information that is software is provided in object code form, you will 

not, and will not permit your Representatives or any third party to, reverse engineer, decompile, or 

disassemble such object code or take any other steps to derive a source code equivalent thereof. 

You shall be liable for any losses or damages incurred by the Company as a result of a breach or 

violation by you or your Representatives of any export control laws or regulations that apply to any 

of the Confidential Information. 

9. At the request of the Company, you and your Representatives shall promptly, at 

your election, either (a) return to the Company all of the written or electronic Confidential 

Information received from the Company or (b) destroy all of the written or electronic Confidential 

Information then in your or your Representatives’ possession. In either event, you shall also destroy 

all written or electronic data developed or derived from the Confidential Information, and shall 

cause your Representatives to do likewise. All return and/or destruction pursuant to this Section 9 

shall be certified in writing to the Company by an authorized representative supervising such 

destruction. In such event, all of the oral Confidential Information and the Transaction Information 

shall remain subject to the terms of this letter agreement. Notwithstanding anything to the contrary 

in the foregoing, such obligation to return or destroy the Confidential Information shall not cover 

information (1) to the extent required to be retained by a regulator, bank examiner or pursuant to 

applicable law or regulation or (2) that is automatically maintained on routine computer system 

backup tapes, disks or other backup storage devices as long as such backed-up information is not 

used, disclosed, accessed or otherwise recovered from such backup devices; provided that such 

materials referenced in this sentence shall remain indefinitely subject to the terms of this letter 

agreement applicable to Confidential Information (irrespective of the termination of this letter 

agreement). 

10. Neither you nor any of your Representatives will initiate or cause to be initiated 

any (a) communication concerning the Confidential Information, (b) requests for meetings with 

management in connection with a possible Transaction (including, for the avoidance of doubt, any 

equity or employment agreements to be entered into in connection therewith) or (c) any other 

communication relating to the Company (other than in the ordinary course of business) or a possible 

Transaction, in each case with any director, officer or employee of the Company or any of its 

subsidiaries who has not been designated by the Company to receive such communications. Any 

requests for information, meetings or discussions relating to a possible Transaction should be 

directed solely to Moelis & Company, LLC, unless otherwise specified in writing by the Company.

11. You agree that, for a period of 12 months from the date of this letter agreement, 

neither you nor your controlled affiliates will, directly or indirectly, solicit for employment any 

employee of the Company or any of its subsidiaries, or otherwise solicit, induce or encourage any 

such person to discontinue or refrain from entering into any employment or consulting relationship 

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[Interested Party]

[DATE], 2024 

(contractual or otherwise) with the Company or any of its subsidiaries; provided that this sentence 

shall not prohibit (a) general advertising or other general solicitation through newspaper 

advertisements or Internet posting services not targeted at the employees of the Company or its 

subsidiaries or (b) any broad based recruitment efforts conducted by a recruitment agency not 

directed by you or your affiliates at the Company or any of its subsidiaries. 

12. You acknowledge that the Company may be entitled to the protections of the 

attorney work-product doctrine, attorney-client privilege or similar protections or privileges with 

respect to portions of the Confidential Information. The Company is not waiving, and will not be 

deemed to have waived or diminished, any of its attorney work-product protections, attorney-client 

privileges or similar protections or privileges as a result of the disclosure of such Confidential 

Information pursuant to this letter agreement. In furtherance of the foregoing, you will not claim 

or contend, in proceedings involving either Party, that the Company waived the protections of the 

attorney work-product doctrine, attorney-client privilege or similar protections or privileges as a 

result of the disclosure of such Confidential Information pursuant to this letter agreement.

13. You acknowledge and agree that the Confidential Information has competitive 

value and is of a confidential and proprietary nature. Furthermore, you acknowledge and agree that 

the Company would be irreparably injured by a breach of this letter agreement by you or your 

Representatives and that money damages are an inadequate remedy for an actual or threatened 

breach of this letter agreement because of the difficulty of ascertaining the amount of damage that 

will be suffered by the Company in the event that this letter agreement is breached. Therefore, you 

agree to the granting of specific performance of this letter agreement and injunctive or other 

equitable relief in favor of the Company as a remedy for any such breach, without proof of actual 

damages. You further waive any requirement for the securing or posting of any bond in connection 

with any such remedy. Such remedy shall not be deemed to be the exclusive remedy for your 

breach of this letter agreement, but shall be in addition to all other remedies available at law or 

equity to the other Party. In the event of an order by a court of competent jurisdiction relating to a 

breach of this letter agreement, the non-prevailing Party shall reimburse the prevailing Party for all 

reasonable attorneys’ fees incurred by the prevailing Party incurred in connection with any 

litigation relating to such breach. 

14. No failure or delay by either Party in exercising any right, power or privilege under 

this letter agreement shall operate as a waiver thereof, and no single or partial exercise thereof shall 

preclude any other or further exercise thereof or the exercise of any right, power or privilege 

hereunder. 

15. No contract or agreement providing for a Transaction shall be deemed to exist 

unless and until a definitive agreement has been executed and delivered by each of the parties 

thereto. Accordingly, each Party agrees that unless and until any definitive agreement with respect 

to a Transaction has been executed and delivered by the Parties, neither of the Parties nor any of 

their affiliates or subsidiaries will be under any legal obligation of any kind whatsoever with respect 

to such a Transaction by virtue of this or any written or oral expression with respect to such 

Transaction by any of its directors, officers, employees, agents or any other Representatives, except 

for the matters specifically agreed in this letter agreement and as may be set forth in any such 

definitive agreement. Each Party further acknowledges and agrees that (a) the other Party shall 

have no obligation to authorize or pursue with it any Transaction, (b) it understands that the other 

Party has not, as of the date hereof, authorized or made any decision to pursue any such Transaction 

and (c) the Company reserves the right, in its sole and absolute discretion and without giving any 

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[Interested Party]

[DATE], 2024

reason therefor, to reject all proposals and to terminate discussions, negotiations and access to the 

Confidential Information, in each case at any time. For purposes of this letter agreement, the term 

“definitive agreement” does not include an executed letter of intent, this letter agreement or any 

other preliminary written agreement, nor does it include any written or oral offer or bid or any 

written or oral acceptance thereof. 

16. This letter agreement shall inure to the benefit of and be binding upon the Parties 

and their respective successors and assigns, or to the extent applicable, such Party as debtor-inpossession or reorganized debtor in connection with a bankruptcy or insolvency proceeding of such 

Party, or the purchaser of such Party. This letter agreement contains the entire agreement between 

the Parties concerning the subject matter hereof and supersedes all previous agreements, written or 

oral, between the Parties or their respective affiliates, relating to the subject matter hereof. No 

waiver of the terms and conditions hereof will be binding unless approved in writing by the Party 

against whom such waiver is sought to be enforced. No amendment of this letter agreement will 

be binding unless approved in writing by both Parties. You will not assign or transfer any rights or 

obligations under this Agreement without the prior written consent of the Company and any 

attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null 

and void (without limiting this Section 16). 

17. If any term, provision, covenant or restriction of this letter agreement is held by a 

court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, 

provisions, covenants and restrictions of this letter agreement shall remain in full force and effect 

to the fullest extent permitted by law and shall in no way be affected, impaired or invalidated. 

18. This letter agreement shall be governed by and construed in accordance with the 

laws of the State of Delaware applicable to agreements entered into and performed solely within 

the State of Delaware, without regard to any principles of conflicts of law that would refer a matter 

to another jurisdiction. EACH PARTY ALSO HEREBY IRREVOCABLY AND 

UNCONDITIONALLY CONSENTS TO SUBMIT TO THE JURISDICTION OF THE 

CHANCERY COURT OF THE STATE OF DELAWARE LOCATED IN WILMINGTON, 

DELAWARE, AND RELATED APPELLATE COURTS, AND OF THE UNITED STATES OF 

AMERICA LOCATED IN DELAWARE, for any actions, suits or proceedings arising out of, or 

relating to, this letter agreement or the transactions contemplated hereby, and each Party agrees not 

to commence any action, suits or proceeding relating thereto except in such courts; provided that 

to the extent the Company is a debtor in a bankruptcy or insolvency proceeding, such court shall 

have exclusive jurisdiction over this letter agreement to the fullest extent of applicable law. Each 

Party further agrees that service of any process, summons, notices or documents by U.S. registered 

mail, postage prepaid, to its address set forth in this letter agreement shall be effective service for 

process for any action, suit or proceeding brought against such Party in any such court. Each Party 

irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or 

proceeding arising out of this letter agreement or the transactions contemplated hereby, in the courts 

of the State of Delaware or the United States of America located in the State of Delaware or the 

bankruptcy court or other court of competent jurisdiction overseeing the Company’s bankruptcy or 

insolvency proceeding, as applicable. Each Party hereby further irrevocably and unconditionally 

waives any right to trial by jury and waives and agrees not to plead or claim in any such court that 

any such action, suit or proceeding brought in any such court has been brought in an inconvenient 

forum.

19. For purposes of this letter agreement, (a) the term “person” means any individual, 

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[Interested Party]

[DATE], 2024 

corporation, partnership, limited liability company, firm, joint venture, association, joint-stock 

company, trust, unincorporated organization, governmental or regulatory body or other entity; 

(b) the term “affiliate” means, when used with respect to any party, a person that directly or 

indirectly, through one or more intermediaries, controls, is controlled by or is under common 

control with such party; (c) the term “subsidiary” means, when used with respect to any party, (i) a 

person that is directly or indirectly controlled by such party, (ii) a person of which such party 

beneficially owns, either directly or indirectly, more than 50% of the total combined voting power 

of all classes of voting securities of such person, the total combined equity interests of such person 

or the capital or profit interests, in the case of a partnership or (iii) a person of which such party has 

the power to vote, either directly or indirectly, sufficient securities to elect a majority of the board 

of directors or similar governing body of such person and; (d) the term “control” means, when used 

with respect to any specified person, the possession, directly or indirectly, of the power to direct or 

cause the direction of the management and policies of such person, whether through the ownership 

of voting securities or other interests, by contract, agreement or otherwise. 

20. This letter agreement may be executed in counterparts, each of which shall be 

deemed to be an original, but both of which shall constitute the same agreement. Signatures to this 

letter agreement transmitted by facsimile transmission, by electronic mail in “portable document 

format” (.pdf) form, or by any other electronic means intended to preserve the original graphic and 

pictorial appearance of a document, will have the same effect as physical delivery of the paper 

document bearing the original signature. 

21. Except as otherwise explicitly stated above, your obligations under this letter 

agreement shall terminate three years after the date of this letter agreement, except such obligations 

under Sections 8, 9 and 12 through 18, which shall have no expiration period. The termination of 

this letter agreement shall not relieve you from your responsibilities in respect of any breach of this 

letter agreement prior to such termination.

[Signature Page Follows] 

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[Interested Party]

[DATE], 2024 

If you are in agreement with the foregoing, please so indicate by signing and returning one copy of 

this letter agreement, which will constitute our agreement with respect to the matters set forth herein. 

Very truly yours, 

IMPEL PHARMACEUTICALS, INC.

By: 

 

Name: 

Title: 

Accepted, Confirmed and Agreed:

[Interested Party] 

By: 

Name: 

Title: 

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Exhibit 2 

Stalking Horse APA

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Execution Version 

50307134.17 

ASSET PURCHASE AGREEMENT 

by and between 

JN BIDCO LLC, as Purchaser, 

and 

IMPEL PHARMACEUTICALS INC., as Seller 

Dated as of December 18, 2023 

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Table of Contents 

Page 

ARTICLE 1. DEFINED TERMS ............................................................................................2

1.1 Defined Terms ........................................................................................................2

1.2 Other Definitional and Interpretive Matters ....................................................13

ARTICLE 2. THE PURCHASE AND SALE; CLOSING ....................................................15

2.1 Purchase and Sale ................................................................................................15

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

2.3 Assumption of Liabilities .....................................................................................18

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

2.5 Excluded Contracts ..............................................................................................19

2.6 Nontransferable Assets and Liabilities ..............................................................19

2.7 Closing ...................................................................................................................20

2.8 Closing Deliveries of the Parties .........................................................................20

2.9 Purchase Price; Assumed Liabilities; Deposits .................................................21

2.10 Transfer Taxes .....................................................................................................22

2.11 Allocation of Purchase Price ...............................................................................22

2.12 Escrow Accounts ..................................................................................................23

2.13 Additional Consideration. ...................................................................................23

ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF THE SELLER .................26

3.1 Organization, Good Standing and Other Matters; Subsidiaries .....................26

3.2 Authority and Enforceability ..............................................................................26

3.3 No Conflict; Required Filings and Consents .....................................................26

3.4 Compliance With Laws .......................................................................................27

3.5 Permits ..................................................................................................................27

3.6 Litigation ...............................................................................................................28

3.7 Real Property; Personal Property ......................................................................28

3.8 Assigned Contracts ..............................................................................................28

3.9 Financial Statements. . ........................................................................................28

3.10 Absence of Material Developments. ...................................................................29

3.11 Customers and Suppliers. . .................................................................................29

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3.12 Intellectual Property ............................................................................................29

3.13 Inventories.. ..........................................................................................................31

3.14 Taxes......................................................................................................................31

3.15 Product Liability ..................................................................................................31

3.16 Product Warranties; Product Return ................................................................31

3.17 Accounts Payable .................................................................................................31

3.18 Brokers and Finders ............................................................................................31

3.19 No Other Representations or Warranties..........................................................32

ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF PURCHASER .................32

4.1 Organization, Good Standing and Other Matters ............................................32

4.2 Authority and Enforceability ..............................................................................32

4.3 No Conflict: Required Filings and Consents .....................................................33

4.4 Financing ..............................................................................................................33

4.5 Solvency ................................................................................................................33

4.6 Litigation ...............................................................................................................33

4.7 Brokers and Finders ............................................................................................33

4.8 Investigation and Agreement by Purchaser; Non-Reliance of 

Purchaser; No Other Representations and Warranties ...................................34

4.9 No Other Representations or Warranties..........................................................35

ARTICLE 5. BANKRUPTCY COURT MATTERS ............................................................35

5.1 Competing Transaction .......................................................................................35

5.2 Bankruptcy Court Filings ...................................................................................35

5.3 Assumption of Assigned Contracts.....................................................................37

ARTICLE 6. PRE-CLOSING COVENANTS ......................................................................38

6.1 Conduct of Business .............................................................................................38

6.2 Access to Information; Confidentiality ..............................................................39

6.3 Efforts to Consummate........................................................................................40

6.4 Notices and Consents ...........................................................................................40

6.5 Regulatory Matters ..............................................................................................41

6.6 Public Announcements ........................................................................................41

6.7 Update of Schedules; Knowledge of Breach ......................................................41

ARTICLE 7. POST-CLOSING COVENANTS ....................................................................42

7.1 Access to Information; Books and Records .......................................................42

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7.2 Post-Closing Receipt and Possession of Assets ..................................................42

7.3 Tax Matters ..........................................................................................................43

ARTICLE 8. CONDITIONS PRECEDENT .........................................................................45

8.1 Conditions to Each Party’s Obligation ..............................................................45

8.2 Conditions to Obligation of Purchaser ..............................................................45

8.3 Conditions to Obligations of the Seller ..............................................................46

8.4 Waiver of Condition; Frustration of Conditions ..............................................46

ARTICLE 9. TERMINATION ..............................................................................................46

9.1 Events of Termination .........................................................................................46

9.2 Effect of Termination ..........................................................................................48

9.3 Termination Fee and Expense Reimbursement ................................................48

ARTICLE 10. GENERAL PROVISIONS ..............................................................................49

10.1 Survival of Representations, Warranties and Covenants ................................50

10.2 Entire Agreement .................................................................................................50

10.3 Amendment; No Waiver......................................................................................50

10.4 Severability; Specific Versus General Provisions .............................................51

10.5 Expenses and Obligations ...................................................................................51

10.6 Notices ...................................................................................................................51

10.7 Counterparts ........................................................................................................53

10.8 Governing Law .....................................................................................................53

10.9 Submission to Jurisdiction; Consent to Service of Process ..............................53

10.10 Waiver of Jury Trial ............................................................................................53

10.11 Rights Cumulative ...............................................................................................54

10.12 Assignment............................................................................................................54

10.13 Specific Enforcement; Remedies ........................................................................55

10.14 Third-Party Beneficiaries ....................................................................................55

10.15 No Personal Liability of Directors, Officers and Owners ................................55

10.16 General Release ....................................................................................................56

10.17 Legal Representation ...........................................................................................57

SCHEDULES 

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Schedule A Subsidiaries 

EXHIBITS 

Exhibit A Form of Escrow Agreement 

Exhibit B Form of Bill of Sale and Assignment and Assumption 

Agreement 

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ASSET PURCHASE AGREEMENT 

THIS ASSET PURCHASE AGREEMENT (this “Agreement”), dated as of December 18, 

2023 (the “Agreement Date”) is entered into by and between JN Bidco LLC, a Puerto Rico limited 

liability company (“Purchaser”) and Impel Pharmaceuticals Inc., a Delaware corporation (the

“Seller”). 

RECITALS 

WHEREAS, on or about December 20, 2023 (the “Petition Date”) the Seller and the 

Subsidiary intend to file voluntary petitions for relief under chapter 11 of title 11 of the United 

States Code (the “Bankruptcy Code”) in the United States Bankruptcy Court for the Northern 

District of Texas (the “Bankruptcy Court”), thereby commencing chapter 11 cases (collectively, 

the “Bankruptcy Cases”); 

WHEREAS, the Seller is a debtor-in-possession under the Bankruptcy Code and manages 

its properties and assets pursuant to Sections 1107(a) and 1108 of the Bankruptcy Code; 

WHEREAS, the Seller is engaged in the Business and owns, directly or indirectly, all of 

the Transferred Assets; 

WHEREAS, the Seller desires to sell (or cause to be sold) to Purchaser, and Purchaser 

desires to purchase from the Seller, all of the Transferred Assets Free and Clear, and the Seller 

desires Purchaser to assume, and Purchaser desires to assume from the Seller, all of the Assumed 

Liabilities, in each case upon the terms and subject to the conditions hereof, pursuant to a Sale 

Order and Sections 105(a), 363 and 365 of the Bankruptcy Code and Rules 6004 and 6006 of the 

Federal Rules of Bankruptcy Procedure; 

WHEREAS, the Transactions contemplated by this Agreement are subject to approval by 

the Bankruptcy Court and will only be consummated pursuant, among other things, to the Sale 

Order to be entered in the Bankruptcy Cases; and 

WHEREAS, concurrently with the execution of this Agreement, Purchaser shall deposit 

(or cause to be deposited) an aggregate amount equal to the Deposit Escrow Amount into an escrow 

account (the “Deposit Escrow Account”) to be established and maintained by Escrow Agent 

pursuant to the Escrow Agreement. 

WHEREAS, concurrently with the execution of this Agreement, an affiliate of Purchaser 

(the “Guarantor”) will enter into that certain letter agreement pursuant to which the Guarantor 

will guarantee the payment and performance obligations of Purchaser under this Agreement. 

NOW, THEREFORE, in consideration of the premises and the mutual representations, 

warranties, covenants, agreements and conditions set forth herein, and for other good and valuable 

consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, 

intending to be legally bound, hereby agree as follows: 

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ARTICLE 1.

DEFINED TERMS 

1.1 Defined Terms. The following terms shall have the following meanings in this 

Agreement: 

“Action” means any action, proceeding, arbitration or litigation (whether civil, criminal or 

administrative) commenced, brought, conducted or heard by or before any Governmental 

Authority or arbitrator. 

“Affiliate” of any particular Person means any other Person, directly or indirectly, 

controlling, controlled by, or under common control with, such particular Person. For the purposes 

of this definition, “control” (including, with correlative meaning, the terms “controlled by” and 

“under common control with”) means the possession, directly or indirectly, of the power to direct 

or cause the direction of the management and policies of a Person, whether through ownership of 

voting securities, by contract or otherwise. 

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

“Agreement Date” has the meaning set forth in the preamble. 

“Allocation Schedule” has the meaning set forth in Section 2.11(a). 

“Alternate Transaction” has the meaning set forth in Section 9.1(b). 

“Applicable Law” means, with respect to any Person, any federal, provincial, state, local 

law, ordinance, principle of common law, code, regulation or statute applicable to such Person or 

such Person’s subsidiaries or to any of their respective securities, assets, properties or businesses. 

“Asset Tax Return” means any Tax Return relating to Asset Taxes. 

 “Asset Taxes” means any Taxes with respect to the ownership or operation of the 

Transferred Assets other than (a) Taxes based on net or gross income, and (b) Transfer Taxes. 

“Assigned Contracts” has the meaning set forth in Section 2.1(e). 

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

“Assumption Notice” has the meaning set forth in Section 5.3(a). 

“Attorney-Client Information” has the meaning set forth in Section 10.17. 

“Auction” has the meaning set forth in Section 5.2(i). 

“Avoidance Actions” means any and all avoidance, recovery, subordination, or other 

claims, actions, rights, or remedies that may be brought by or on behalf of the Seller or its estate 

or other authorized parties in interest under the Bankruptcy Code or applicable non-bankruptcy 

law, including, but not limited to, actions or remedies under sections 510, 542, 543, 544, 545, and 

547 through and including 553 of the Bankruptcy Code. 

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“Back-Up Bid” means the second highest or otherwise best bid if the successful bidder 

fails to consummate its bid in accordance with the Bid Procedures. 

“Back-up Termination Date” means the first to occur of (a) thirty (30) days after the entry 

of the Sale Order, (b) consummation of the Transactions with the winning bidder at the Auction, 

(c) Purchaser’s receipt of notice from the Seller of the release by the Seller of Purchaser’s

obligations under Section 5.2(i) and (d) March 13, 2024.

“Bankruptcy Cases” has the meaning set forth in the Recitals. 

“Bankruptcy Code” has the meaning set forth in the Recitals. 

“Bankruptcy Court” has the meaning set forth in the Recitals. 

“Bid Procedures” means those certain bidding procedures for the Sale of the Seller’s 

assets approved by the Bankruptcy Court. 

“Bid Procedures Motion” means a motion filed by Seller with the Bankruptcy Court to 

seek approval of the Bid Procedures. 

“Bid Procedures Order” means an Order of the Bankruptcy Court approving the Bid 

Procedures. 

“Bill of Sale and Assignment and Assumption Agreement” means the bill of sale and 

assignment and assumption agreement, dated as of the Closing Date, by and between the Seller 

and Purchaser, substantially in the form attached hereto as Exhibit B. 

“Business” means the business as presently conducted of the Seller Group related to (i) the 

development, manufacture, sale, maintenance, and commercialization of the Trudhesa drug 

product, the Trudhesa I123 POD device, and the Trudhesa Assets and (ii) the development, 

manufacture, sale, maintenance, and commercialization of the INP105 drug product, the POD 

devices, and the POD Technology Assets. 

“Business Day” means any day other than (a) a Saturday, Sunday or federal holiday or 

(b) a day on which commercial banks in Seattle, Washington are authorized or required to be

closed.

“Business Intellectual Property” means all Owned Intellectual Property Assets together 

with all other Intellectual Property used in, held for use in, or necessary for the conduct of the 

Business. 

“Buyer’s FDA Transfer Letters” means the letter to FDA in form and substance 

reasonably agreed by Purchaser and the Seller, accepting the transfer of rights to the NDA issued 

by FDA for Product from Seller. 

 “Closing” has the meaning set forth in Section 2.7. 

“Closing Date” has the meaning set forth in Section 2.7. 

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“Code” means the Internal Revenue Code of 1986, as amended, or any successor law. 

 “Competing Bid” has the meaning set forth in Section 5.1. 

“Confidentiality Agreement” means that certain Confidentiality Agreement, dated as of 

October 17, 2023 by and between the Seller and Purchaser. 

“Consent” means any consent, approval, authorization, waiver or license. 

“Contract” means any written agreement, mortgage, indenture, lease (whether for real or 

personal property), contract or subcontract. 

“Contracting Parties” has the meaning set forth in Section 10.15 

“Cure Costs” means any and all costs, expenses or actions that Purchaser is required to 

pay or perform to assume any of the Assigned Contracts pursuant to section 365(b)(1)(A) and (B) 

of the Bankruptcy Code. 

“Deposit Escrow Account” has the meaning set forth in the Recitals. 

“Deposit Escrow Amount” means $1,500,000. 

“Designated Contracts” has the meaning set forth in Section 5.3(b). 

“Designation Deadline” has the meaning set forth in Section 5.3(b). 

“Determined Cure Costs” means all Cure Costs for Assigned Contracts, as determined 

by a final order of the Bankruptcy Court. 

“Enforceability Exceptions” means applicable bankruptcy, insolvency, reorganization, 

moratorium, receivership and similar Applicable Laws affecting the enforcement of creditors’ 

rights generally and general equitable principles. 

“Environmental Laws” means any Applicable Law relating to pollution or protection of 

the environment or worker health and safety (in respect of exposure to Hazardous Substances), 

including such Applicable Laws relating to the use, treatment, storage, disposal, Release or 

transportation of Hazardous Substances. 

“Escrow Agent” means PNC Bank, National Association. 

“Escrow Agreement” means the escrow agreement, dated as of the Agreement Date, by 

and among Purchaser, the Seller and the Escrow Agent in substantially the form attached hereto 

as Exhibit A. 

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

“Excluded Books and Records” means the following originals and copies of those books 

and records, documents, data and information (in whatever form maintained) of the Seller Group 

and the Business: (i) all corporate minute books (and other similar corporate records) and stock 

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records of the Seller Group, (ii) any books and records relating to the Excluded Assets or (iii) any 

books, records or other materials that any member of the Seller Group (x) is required by Applicable 

Law to retain (copies of which, to the extent permitted by Applicable Law, will be made available 

to Purchaser upon Purchaser’s reasonable request), (y) reasonably believes is necessary to enable 

it to prepare and/or file Tax Returns (copies of which will be made available to Purchaser upon 

Purchaser’s reasonable request) or (z) are prohibited by Applicable Law from delivering to 

Purchaser. 

“Excluded Contracts” has the meaning set forth in Section 2.5. 

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

“Expense Reimbursement” means the reimbursement by the Seller of Purchaser’s actual 

and reasonable out-of-pocket legal, accounting, and other third-party advisory or service costs and 

expenses incurred in connection with the Transactions, as evidenced by invoice(s) provided to the 

Seller, on the terms and subject to the conditions of Section 9.3. 

“FDA” means the United States Food and Drug Administration. 

“Final Order” means an Order, judgment or other decree of the Bankruptcy Court or any 

other Governmental Authority of competent jurisdiction that has not been reversed, vacated, 

modified or amended, is not stayed and remains in full force and effect; provided, that such Order 

shall be considered a Final Order only after the time period for third parties seeking appeal has 

expired without the filing of any appeal or motion for reconsideration. 

“Free and Clear” means free and clear of all Liens (other than the Permitted Liens and the 

Assumed Liabilities) to the maximum extent permitted by Section 363(f) of the Bankruptcy Code. 

“GAAP” means generally accepted accounting principles in the United States as of the 

Agreement Date. 

“Governmental Authority” means any domestic or foreign national, provincial, state, 

multi-state or municipal or other local government, any subdivision, agency, commission or 

authority thereof, any court (including the Bankruptcy Court) or tribunal or any quasigovernmental or private body exercising any regulatory or taxing authority thereunder (including 

the IRS and the FDA). 

“Hazardous Substances” means any substances, materials or wastes which are defined as 

or included in the definition of “hazardous substances”, “hazardous wastes”, “hazardous 

materials”, “toxic substances”, “pollutants” or “contaminants” under any Environmental Law, 

including any petroleum or refined petroleum products, radioactive materials, friable asbestos or 

polychlorinated biphenyls. 

“Intellectual Property” means any and all intellectual property and proprietary rights in 

any jurisdiction throughout the world, including rights arising from the following: (i) patents and 

patent applications, design rights, industrial design registrations and applications therefor, 

divisions, continuations, continuations-in-part, reissues, substitutes, renewals, registrations, 

confirmations, reexaminations, extensions and any provisional applications, and any foreign or 

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international equivalent of any of the foregoing; (ii) trademarks (whether registered, unregistered 

or applied for), service marks, trade dress, service names, trade names, brand names, product 

names, slogans, logos, business names, corporate names, and other source or business identifiers, 

all registrations and applications for registration thereof, and, in each case, together with all of the 

goodwill associated therewith; (iii) works of authorship, copyrights and all registrations and 

applications for registration thereof; (iv) trade secrets and know-how; (v) rights in formulae, 

methods, techniques, processes, assembly procedures, software, software code (in any form, 

including source code and executable or object code), subroutines, test results, test vectors, user 

interfaces, protocols, schematics, specifications, drawings, prototypes, molds and models, and 

other forms of technology (whether or not embodied in any tangible form and including all tangible 

embodiments of the foregoing), and (vi) social media accounts, social media identifiers, internet 

domain name registrations. 

“Intellectual Property Assignment Agreement” means the assignment agreement 

assigning the Intellectual Property to Purchaser, in a form reasonably acceptable to Purchaser and 

the Seller and executed and delivered at Closing. 

“Intellectual Property Registrations” means, as to any Owned Intellectual Property 

Assets, any issuance, registration, application or other filing by, to or with any Governmental 

Authority or authorized private registrar in any jurisdiction, including domain names, registered 

trademarks and copyrights, issued and reissued patents and pending applications for any of the 

foregoing. 

 “IRS” means the United States Internal Revenue Service. 

“Knowledge” means (a) with regard to the Seller, the actual knowledge, without any 

implication of verification or investigation concerning such knowledge, of Len Paolillo, Michael 

Kalb and John Hoekman, in each case as of the Agreement Date (or, with respect to a certificate 

delivered pursuant to this Agreement, as of the date of delivery of such certificate) and (b) with 

regard to Purchaser, the actual knowledge, without any implication of verification or investigation 

concerning such knowledge, of David Risk, Ray Canole and Nirav Patel as of the Agreement Date 

(or, with respect to a certificate delivered pursuant to this Agreement, as of the date of delivery of 

such certificate). 

“Law Firms” means Fenwick & West LLP, Sidley Austin LLP and each of their respective 

successors. 

“Liabilities” shall mean debts, liabilities, duties, obligations or commitments of any nature 

whatsoever, whether direct or indirect, asserted or unasserted, known or unknown, absolute or 

contingent, accrued or unaccrued, matured or unmatured or otherwise, whenever or however 

arising (including whether arising out of any Contract or in a tort claim based on negligence or 

strict liability). 

“Lien” means all forms of lien (including mechanic’s, contractor’s or other similar liens 

arising under or relating to the provision of goods or services on or to any Transferred Assets, and 

liens arising under the Bankruptcy Code), encumbrance, defect or irregularity in title, pledge, 

mortgage, deed of trust, deed to secure debt, security interest, charge, transfer restriction or similar 

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agreement or encumbrance, including any dedication under any gathering, transportation, treating, 

processing, fractionating, purchase, sale or similar agreements, or any other rights granted or 

consensual as or against any Transferred Assets including but not limited to easements, 

encroachments, rights of first refusal, options, or any other interest or right in property that 

constitutes a lien or interest within the definition or adjudication of such terms under Section 

101(37) of the Bankruptcy Code. 

“Material Adverse Effect” means a material adverse effect on the business, financial 

condition or results of operations of the Business (including the Transferred Assets and Assumed 

Liabilities) taken as a whole; provided, however, that none of the following shall be deemed (either 

alone or in combination) to constitute, and none of the following shall be taken into account in 

determining whether there has been or may be, a Material Adverse Effect: (a) any change in, or 

effects arising from or relating to, general business or economic conditions affecting any industry 

in which the Business operates; (b) any change in, or effects arising from or relating to, the United 

States or foreign economies, or securities, banking or financial markets in general, or other general 

business, banking, financial or economic conditions (including (i) any disruption in any of the 

foregoing markets, (ii) debt defaults or other restructuring events of any country with respect to 

which bondholders take a discount to the debt of any country or any increases in the interest rates 

for any country’s debt, (iii) any change in currency exchange rates, (iv) any decline or rise in the 

price of any security, commodity, contract or index and (v) any increased cost, or decreased 

availability, of capital or pricing or terms related to any financing for the Transactions); (c) any 

change from, or effects arising from or relating to, the occurrence, escalation or material worsening 

of any act of God or other calamity, natural disaster, pandemic or disease, outbreak, hostility, act 

of war, sabotage, cyber-attack or terrorism or military action; (d) any action taken by Purchaser or 

its Affiliates with respect to the Transactions or with respect to the Business; (e) any action taken, 

or failed to be taken, by the Seller at the request of or with the consent of Purchaser or otherwise 

in compliance with the terms of this Agreement or any change from, or effects arising from or 

relating to, Purchaser’s failure to consent to any action restricted by Section 6.1; (f) any change in, 

or effects arising from or relating to changes in, Applicable Law or accounting rules (including 

GAAP) or any interpretation thereof; (g) the failure of the Business to meet any of its projections, 

forecasts, estimates, plans, predictions, performance metrics or operating statistics or the inputs 

into such items (whether or not shared with Purchaser or its Affiliates or representatives); 

(h) national or international political, labor or social conditions; (i) the public announcement of, 

entry into or pendency of, actions required or contemplated by or performance of obligations 

under, this Agreement and the Transactions or the identity of the parties to this Agreement, 

including any termination of, reduction in or similar adverse impact on relationships, contractual 

or otherwise, with any customers, suppliers, financing sources, licensors, licensees, distributors, 

partners, employees or others having relationships with the Business; (j) the sale of any assets 

other than the Transferred Assets to any third parties by a member of the Seller Group or any of 

their Affiliates; (k) any effect arising or resulting from or related to the filing of the Bankruptcy 

Cases; (l) any action required to be taken under any Applicable Law or Order or any existing 

Contract by which any member of the Seller Group’s (or any of their properties) are bound; (m) 

seasonal changes in the results of operations of the Seller Group; (n) any epidemic, pandemic, 

outbreak of disease or other public health emergency (including COVID-19) or any escalation or 

worsening of any such conditions or (o) any objections made in the Bankruptcy Court to this 

Agreement, the Transactions, the Sale Order or the reorganization, any orders of the Bankruptcy 

Court and any actions or omissions of the Seller in compliance with any order of the Bankruptcy 

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Court and the assumption or rejection of any Assigned Contract; except in the cause of clauses (a) 

through (c), (h) and (n), to the extent such conditions, events, changes, crises and disasters, as 

applicable, do not have a material and disproportionate impact on the Business, taken as a whole, 

compared to other industry participants (in which case, only the extent of such disproportionate 

effect shall be taken into account when determining whether there is a Material Adverse Effect). 

“New Drug Application” or “NDA” means new drug application as approved by the FDA. 

“Nitrosamine Liabilities” means those Liabilities resulting from nitrosamine impurities 

as discussed in the FDA’s February 2021 Guidance on Control of Nitrosamine Impurities in 

Human Drugs with respect to the Trudhesa drug product. 

“Non-Transferred Asset” has the meaning set forth in Section 2.6(a). 

“Nonparty Affiliates” has the meaning set forth in Section 10.14. 

“Open Source Software” means any software that is licensed pursuant to a license approved 

by the Open Source Initiative and listed at http://www.opensource.org/licenses/alphabetical or that 

is considered “free” or “open source software” by the Free Software Foundation. 

“Order” means any award, decision, injunction, judgment, ruling or verdict entered, 

issued, made or rendered by any Governmental Authority or arbitrator. 

“Organizational Documents” means (a) the articles or certificates of incorporation and 

the by-laws of a corporation, (b) the partnership agreement and any statement of partnership of a 

general partnership, (c) the limited partnership agreement and the certificate of limited partnership 

of a limited partnership, (d) the operating or limited liability company agreement and the certificate 

of formation of a limited liability company, (e) any charter, joint venture agreement or similar 

document adopted or filed in connection with the creation, formation or organization of a Person 

not described in clauses (a) through (d), and (f) any amendment to or equivalent of any of the 

foregoing. 

“Outside Date” has the meaning set forth in Section 9.1(i). 

“Owned Intellectual Property Assets” means the Intellectual Property owned or 

purported to be owned by any of member of the Seller Group that is used in, held for use in, or 

related to, the conduct of the Business as currently conducted or proposed to be conducted. 

“Parent” has the meaning set forth in the preamble. 

“Permit” means all permits, authorizations, certificates, franchises, consents and other 

approvals from any Governmental Authority. 

“Permitted Liens” means (a) Liens for Taxes, assessments or other governmental charges 

not yet due and payable or being contested in good faith by appropriate proceedings as set forth 

on Schedule 1.1(a); (b) mechanics’, carriers’, workers’, repairers’ and other similar Liens arising 

or incurred in the ordinary course of business for obligations that are not overdue or are being 

contested in good faith by appropriate proceedings; (c) zoning, entitlement and building 

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regulations and land use restrictions; (d) purchase money Liens and Liens securing rental payments 

under capital lease arrangements; (e) Liens arising under leases of property or equipment in favor 

of the owner thereof; (f) pledges or deposits made in the ordinary course of business in connection 

with workers’ compensation, unemployment insurance and other types of social security; 

(g) deposits to secure the performance of bids, Contracts (other than for borrowed money), leases, 

statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like 

nature incurred in the ordinary course of business; (h) licenses of Intellectual Property granted in 

the ordinary course of business; (i) gaps in the chain of title of Intellectual Property applications 

or registrations that are evident from the records of the relevant Governmental Authority 

maintaining such applications or registrations; (j) Liens arising under or created by this Agreement 

or any of the Related Documents; (k) Liens arising in the ordinary course of business which would 

not reasonably be expected to have a Material Adverse Effect; and (l) Liens set forth on 

Schedule 1.1(b). 

“Person” means any individual, corporation (including any non-profit corporation), 

partnership, limited liability company, joint venture, estate, trust, association, organization, labor 

union or any other entity or Governmental Authority. 

“Personal Information” means any information in the possession or control of the Seller 

Group (solely as related to the Business) about an identifiable individual other than the name, title 

or business address, business email address or telephone number of any employee of the Seller 

Group. 

“Petition Date” has the meaning set forth in the Recitals. 

“POD Technology Assets” means (a) all Intellectual Property, Technology, and knowhow related to manufacturing and development for the POD devices and INP105 drug product, (b) 

all clinical, non-clinical and combination product testing datasets related to the development stage 

POD devices and INP105 drug product, (c) device manufacturing and fill-and-finish equipment 

related to the development stage POD technology and (d) current inventory of preclinical POD 

devices and associated production equipment and know-how. 

“POD Technology Licensing Revenue” means the total amount generated, if any, by the 

Purchaser in a fiscal year from licensing or sales or other transfers or dispositions of the POD 

Technology Assets to any third party. 

 “Pre-Closing Tax Period” means any taxable period ending on or prior to the Closing 

Date and the portion of any Straddle Period through the Closing Date. 

“Product” means the pharmaceutical product currently approved, marketed, distributed 

and/or sold in the Territory as Trudhesa (dihydroergotamine mesylate) under New Drug 

Application No. 213436 filed with the FDA, including any supplements, amendments or 

modifications submitted to or required by the FDA or any successor application 

“Product Net Sales” means the total gross amount invoiced on sales of any product sold, 

disposed of or distributed by through the operation of the Transferred Assets (other than the POD 

Technology Assets), which shall be deemed to include, milestones, upfronts and other similar 

payments, (the “Items”), less, without duplication, the following deductions to the extent actually 

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incurred or allowed or accrued and not otherwise recovered or reimbursed to Purchaser: (a) 

actually given rebates, allowance, customary discounts in the trade for quantity purchased, for 

prompt payment or for wholesalers and distributors, (b) credits or refunds for claims or returns that 

do not exceed the original invoice amount, and (c) sales, value added, consumption, excise and 

use taxes and other fees imposed by a Governmental Authority, each to the extent actually paid 

and borne by Purchaser or its Affiliates, to the extent such items are included in the gross invoice 

price of the Items and actually borne by Purchaser without reimbursement from a third party. 

Product Net Sales shall include the amount or fair market value of all other consideration received 

by Purchaser in respect of the Products, whether such consideration is in cash, payment in kind, 

exchange or other form. For purposes of this definition, “sale” shall include any transfer or other 

disposition of the Items other than transfers or other dispositions of the Items, at no charge or at a 

nominal charge, for pre-clinical, clinical or regulatory purposes or to physicians or hospitals for 

promotional purposes, provided such transfer, distribution or disposition is not made in exchange 

for lower prices on other products sold by or on behalf of Purchaser or its Affiliates, as applicable, 

or for other noncash consideration. Product Net Sales shall be calculated in accordance with 

GAAP. 

If any Item is sold in the form of a combination product (whether co-formulated or 

copackaged) with another product or therapy that is not an Item (each a “Combination Product”), 

then the Product Net Sales for any such Combination Product shall be calculated by multiplying 

actual Product Net Sales of such Combination Product by the fraction A/(A+B) where “A” is the 

weighted average invoice price of the Item, as applicable, when sold separately during the 

applicable accounting period in which the sales of the Combination Product were made, and “B” 

is the combined weighted average invoice prices of all of the active ingredients and delivery 

technologies and systems other than price of the Product contained in such Combination Product 

sold separately during such same accounting period. If the Product contained in such Combination 

Product is not sold separately in finished form, the Company and Seller shall mutually determine 

on Product Net Sales for the Product based on the relative contribution of the Product in good faith 

and shall take into account in good faith any applicable allocations and calculations that may have 

been made for the same period in other countries. If the Company or any of its Affiliates recover 

monetary damages, settlement amounts or other monetary recovery with respect to the Product 

from a Third Party in a Claim brought for infringement, misappropriation or other violation of any 

Intellectual Property relating to the Product, (A) such damages will be allocated first to the 

reimbursement of any expenses incurred by the Company or such Affiliates, as applicable, for 

bringing such action (including reasonable attorney’s fees) not already reimbursed from other 

damages awarded under the same action, and (B) any remaining amount of such damages will be 

reduced, if and to the extent applicable, to allocate recovered damages to Third Party licensors of 

such Intellectual Property (other than damages for lost royalties), only as legally required under 

pre-existing Contract with such Licensor, then any remaining amount of such damages, settlement 

amounts or other monetary recovery after application of (A) and (B) will be included as Product 

Net Sales. 

“Public Health Measures” means any closures, “shelter-in-place,” “stay at home,” 

workforce reduction, social distancing, shut down, closure, curfew or other restrictions or any other 

Applicable Law, Orders, directives, guidelines or recommendations issued by any Governmental 

Authority, the Centers for Disease Control and Prevention, the World Health Organization, or any 

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industry group in connection with COVID-19 or any other epidemic, pandemic, or outbreak of 

disease, or in connection with or in response to any other public health conditions. 

“Purchase Price” means $17,500,000. 

“Purchaser” has the meaning set forth in the preamble. 

“Purchaser Group Members” has the meaning set forth in Section 10.17. 

“Purchaser Releasing Party” has the meaning set forth in Section 10.16(b). 

“Purchaser Schedules” has the meaning set forth in ARTICLE 4. 

“Related Claims” means all claims or causes of action (whether in contract or tort, in law 

or in equity, or granted by statute or otherwise) that may be based upon, arise out of or relate to 

this Agreement, the Related Documents and any other document or instrument delivered pursuant 

to this Agreement or the Related Documents, or the negotiation, execution, termination, validity, 

interpretation, construction, enforcement, performance or nonperformance of this Agreement or 

the Related Documents or otherwise arising from the Transactions or the relationship between the 

parties (including any claim or cause of action based upon, arising out of or related to any 

representation or warranty made in or in connection with, or as an inducement to enter into, this 

Agreement or the Related Documents). 

“Related Documents” means the Escrow Agreement, the Bill of Sale and Assignment and 

Assumption Agreement and Intellectual Property Assignment Agreement; provided, however, that 

the Escrow Agreement and the Bill of Sale and Assignment and Assumption Agreement and 

Intellectual Property Assignment Agreement shall not be a Related Document solely for purposes 

of applying the provisions in ARTICLE 10 to the extent, and only to the extent, that any such 

document expressly conflicts with ARTICLE 10. 

“Release” means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, 

injecting, escaping, leaching, dumping, or disposing into the environment of any Hazardous 

Substances. 

“Sale Motion” means the motion of the Seller seeking entry of the Sale Order approving 

the terms herein, to be filed on or about December 20, 2023 in the Bankruptcy Cases. 

“Sale Order” means an Order of the Bankruptcy Court issued pursuant to sections 105(a), 

363 and 365 of the Bankruptcy Code in form and substance acceptable to Purchaser and the Seller, 

in each party’s commercially reasonable discretion, approving this Agreement and all of the terms 

and conditions hereof and approving and authorizing the Seller to consummate the Transactions 

contemplated hereby Free and Clear and containing a finding that Purchaser has acted in “good 

faith” within the meaning of Section 363(m) of the Bankruptcy Code. 

“Schedules” has the meaning set forth in ARTICLE 3. 

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

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“Seller Group” means the Seller and each of its Subsidiaries. 

“Seller Group Members” has the meaning set forth in Section 10.17. 

“Seller Group Taxes” means any (i) Liability of Seller Group for Taxes other than Asset 

Taxes for the portion of any Straddle Period beginning after the Closing Date, (ii) any Liability for 

Asset Taxes attributable to any Pre-Closing Tax Period, and (iii) any Liability of Seller Group for 

the unpaid Taxes of any Person under Treasury Regulation §1.1502-6 (or any similar provision of 

state, local, or non-U.S. law), as a transferee or successor, by contract, or otherwise. 

“Seller Permits” has the meaning set forth in Section 3.5(a). 

“Seller Releasing Party” has the meaning set forth in Section 10.16(a) 

“Seller Tax Claim” has the meaning set forth in Section 7.3(e). 

“Solvent” when used with respect to any Person, means that, as of any date of 

determination, (a) the fair salable value (determined on a going concern basis) of its assets and 

property will, as of such date, exceed the amounts required to pay its debts as they become absolute 

and mature, as of such date, (b) such Person will have adequate capital to carry on its business and 

(c) such Person will be able to pay its debts as they become absolute and mature, in the ordinary 

course of business, taking into account the timing of and amounts of cash to be received by it and 

the timing of and amounts of cash to be payable on or in respect of its indebtedness. 

“Subsidiaries” means the entities listed on Schedule A. 

 “Tax” means any tax of any kind whatsoever (including any income tax, franchise tax, 

branch profits tax, capital gains tax, value-added tax, unclaimed property, escheat, sales tax, use 

tax, property tax, transfer tax, payroll tax, social security tax or withholding tax), and any related 

fine, penalty, interest, or addition to tax with respect thereto, imposed, assessed or collected by or 

under the authority of any Governmental Authority. 

“Tax Return” means any return (including any information return), report, statement, 

schedule, notice, form, or other document or information (whether in tangible, electronic or other 

form), including any amendments, schedules attachments, supplements, appendices and exhibits 

thereto, filed with or submitted to, or required to be filed with or submitted to, any Governmental 

Authority in connection with the determination, assessment, collection, or payment, of any Tax. 

“Technology” means algorithms, applied programming interfaces, apparatus, designs, 

drawings, data collections, diagrams, systems, procedures, processes, methods, methodologies, 

models, formulas, inventions (whether or not patentable), discoveries, improvements, know-how, 

methods, network configurations and architectures, processes, proprietary information, protocols, 

schematics, specifications, software, software code (in any form, including source code and 

executable or object code), subroutines, techniques, tools, user interfaces, technical engineering 

and manufacturing information and materials including engineering plans and bills of materials, 

web sites, works of authorship and other forms of technology (whether or not embodied in any 

tangible form and including all tangible embodiments of the foregoing, such as instruction 

manuals, laboratory notebooks, prototypes, samples, studies and summaries). 

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“Termination Fee” means a fee equal to $450,000. 

“Territory” means the United States of America, including the states, territories, 

possessions and protectorates thereof, the District of Columbia and the Commonwealth of Puerto 

Rico. 

“Transactions” means the transactions contemplated by this Agreement and the Related 

Documents. 

“Transfer Taxes” has the meaning set forth in Section 2.10. 

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

“Trudhesa Assets” means (a) all Intellectual Property, Technology, and know-how related 

to manufacturing processes for the Trudhesa drug product and Trudhesa I123 POD devise, (b) all 

marketing Permits gained from any Governmental Authority for Trudhesa including the NDA for 

Trudhesa obtained from FDA along with any and all permits, licenses, certifications, registrations, 

qualifications, authorizations, consents or approvals of the FDA or any other Governmental 

Authority, currently used in, necessary for and material to the operation of sale of the Product, and 

(c) all clinical, non-clinical and combination product testing datasets related to Trudhesa. 

 “Used in the Business” has the meaning set forth in Section 2.1. 

1.2 Other Definitional and Interpretive Matters. 

(a) Unless otherwise expressly provided, for purposes of this Agreement and 

the Related Documents, the following rules of interpretation shall apply: 

(i) Calculation of Time Period. All references to a day or days shall be 

deemed to refer to a calendar day or days, as applicable, unless otherwise specifically 

provided. When calculating the period of time before which, within which or following 

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

reference date in calculating such period shall be excluded. If the last day of such period is 

a non-Business Day, the period in question shall end on the next succeeding Business Day. 

(ii) Dollars. Any reference to $ shall mean U.S. dollars, which is the 

currency used for all purposes in this Agreement and the Related Documents. The 

specification of any dollar amount in the representations and warranties or otherwise in this 

Agreement, the Related Documents or the Schedules is not intended and shall not be 

deemed to be an admission or acknowledgement of the materiality of such amounts or 

items, nor shall the same be used in any dispute or controversy between the parties hereto 

to determine whether any obligation, item or matter (whether or not described herein or 

included in any schedule) is or is not material for purposes of this Agreement, the Related 

Documents or the Schedules. 

(iii) Exhibits/Schedules. The Exhibits and Schedules to this Agreement 

are an integral part of this Agreement. All Exhibits and Schedules annexed hereto or 

referred to herein are hereby incorporated in and made a part of this Agreement as if set 

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forth in full herein. Any matter or item disclosed on one Schedule shall be deemed to have 

been disclosed on each other Schedule. Disclosure of any item on any Schedule shall not 

constitute an admission or indication that any such item is required to be disclosed, or that 

such item or matter is material or has resulted in or will result in a Material Adverse Effect 

or that the included items or actions are not in the ordinary course of business. No 

disclosure on a Schedule relating to a possible breach or violation of any Contract, 

Applicable Law or Order shall be construed as an admission or indication that a breach or 

violation exists or has actually occurred. Any capitalized terms used in any Schedule or 

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

(iv) Gender and Number. Any reference to gender shall include all 

genders, and words imparting the singular number only shall include the plural and vice 

versa. 

(v) Headings. The provision of a table of contents, the division of this 

Agreement or Related Documents into articles, sections and other subdivisions and the 

insertion of headings are for convenience of reference only and shall not affect or be 

utilized in construing or interpreting this Agreement or Related Document, as applicable. 

Unless otherwise specified, all references in this Agreement to any “Section” or other 

subdivision are to the corresponding section or subdivision of this Agreement, and all 

references in a Related Document to any “Section” or other subdivision are to the 

corresponding section or subdivision of such Related Document. 

(vi) Herein. The words such as “herein,” “hereinafter,” “hereof” and 

“hereunder” that are used in this Agreement refer to this Agreement as a whole and not 

merely to a subdivision in which such words appear unless the context otherwise requires. 

Uses of such words in the Related Documents shall refer to such Related Document as a 

whole and not merely to a subdivision in which such words appear unless the context 

otherwise requires. 

(vii) Or. The word “or” shall be construed in the inclusive sense of 

“and/or” unless otherwise specified. 

(viii) Including. The word “including” or any variation thereof means 

(unless the context of its usage otherwise requires) “including, without limitation” and shall 

not be construed to limit any general statement that it follows to the specific or similar 

items or matters immediately following it. 

(ix) Successors. A reference to any party to this Agreement, any 

Related Document or any other agreement or document shall include such party’s 

successors and permitted assigns. 

(x) Legislation. A reference to any legislation or to any provision of 

any legislation shall include any amendment thereto, and any modification or re-enactment 

thereof, any legislative provision substituted therefor and all regulations and statutory 

instruments issued thereunder or pursuant thereto. 

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(xi) Reflected On or Set Forth In. An item arising with respect to a

specific representation or warranty shall be deemed to be “reflected on” or “set forth in” a 

balance sheet or financial statement, to the extent any such phrase appears in such 

representation or warranty, if (a) there is a reserve, accrual or other similar item underlying 

a number on such balance sheet or financial statement that relates to the subject matter of 

such representation, (b) such item is otherwise specifically set forth on the balance sheet 

or financial statement or (c) such item is set forth in the notes to the balance sheet or 

financial statement. 

(xii) Made Available. Any reference in this Agreement to “made

available” means a document or other item of information that was provided or made 

available to Purchaser or its representatives in any “data rooms,” “virtual data rooms,” 

management presentations or in any other form in expectation of, or in connection with, 

the Transactions. 

(b) All representations and warranties set forth in this Agreement or the

Related Documents are contractual in nature only and subject to the sole and exclusive remedies 

set forth herein. No Person is asserting the truth of any representation and warranty set forth in this 

Agreement or the Related Documents; rather, the parties have agreed that should any 

representations and warranties of any party prove untrue, the other parties shall have the specific 

rights and remedies herein specified as the exclusive remedy therefor, but that no other rights, 

remedies or causes of action (whether in law or in equity or whether in contract or in tort or 

otherwise) are permitted to any party hereto as a result of the untruth of any such representation 

and warranty. The phrase “to Seller’s Knowledge” and phrases of similar import or effect are used 

herein to qualify and limit the scope of any representation or warranty in which they appear and 

are not affirmations of any Person’s “superior knowledge” that the representation or warranty in 

which they are used is true. 

(c) The parties hereto have participated jointly in the negotiation and

drafting of this Agreement and the Related Documents and, in the event an ambiguity or question 

of intent or interpretation arises, this Agreement and the Related Documents shall be construed as 

jointly drafted by the parties hereto and no presumption or burden of proof shall arise favoring or 

disfavoring any party by virtue of the authorship of any provision of this Agreement and the 

Related Documents. The parties hereto agree that changes from earlier drafts to the final version 

of this Agreement do not necessarily imply that the party agreeing to such change is agreeing to a 

change in meaning (as the party agreeing to such change may believe the change is stylistic and 

non-substantive); consequently, no presumption should exist by virtue of a change from a prior 

draft. 

ARTICLE 2.

THE PURCHASE AND SALE; CLOSING 

2.1 Purchase and Sale. Upon the terms and subject to the conditions set forth in this 

Agreement and the Sale Order, at the Closing, in exchange for an aggregate payment from 

Purchaser to the Seller equal to the Purchase Price, Purchaser shall purchase, assume and accept 

from the Seller, and the Seller shall sell, transfer, assign, convey and deliver (or shall cause the 

sale, transfer, assignment, conveyance and delivery) to Purchaser, Free and Clear (except for 

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Permitted Liens), all of the rights, title and interests in, to and under the following assets and 

interests used in the Business (“Used in the Business”) as the same shall exist on the Closing Date 

(collectively, the “Transferred Assets”): 

(a) the Trudhesa Assets;

(b) the POD Technology Assets;

(c) all supplies and other inventories Used in the Business;

(d) to the extent transferable, the Seller Permits (including any applications that

are in process) Used in the Business; 

(e) all Contracts to which a member of the Seller Group is a party and which

are Used in the Business, all of which are listed on Schedule 2.1(e), excluding Contracts that expire 

or are terminated prior to the Closing and all Designated Contracts that Purchaser elects to assume 

pursuant to Section 5.3(b) (collectively, the “Assigned Contracts”); 

(f) all material original books and records, documents, data and information of

the Seller Group solely related to the Business, other than the Excluded Books and Records; 

provided, however, that the Seller Group shall be entitled to retain copies of any such materials; 

(g) all rights to receive mail and other correspondences and communications

(including electronic mail) addressed to Seller relating solely to the Product (including any such 

mail and other correspondence and communications (including electronic mail) from the FDA or 

any other Governmental Authority, customers, advertisers, suppliers, distributors, agents and 

others and payments with respect to the Product); 

(h) the Owned Intellectual Property Assets, including that Intellectual Property

set forth on Schedule 2.1(h) and all (i) royalties, fees, income, payments, and other proceeds now 

or hereafter due or payable to any member of the Seller Group with respect to such Intellectual 

Property, and (ii) claims and causes of action with respect to such Intellectual Property, whether 

accruing before, on, or after the Agreement Date, including all rights to and claims for damages, 

restitution, and injunctive and other legal or equitable relief for past, present, or future 

infringement, misappropriation, or other violation thereof; 

(i) all equipment, and other tangible personal property, including carts, dollies,

office furniture and fixtures, computers, security systems, telephone and internet equipment and 

maintenance equipment and supplies, Used in the Business and owned by the Seller Group listed 

on Schedule 2.1(i); 

(j) all of the Seller Group’s rights, claims or causes of action against third

parties relating to the assets, properties, business or operations of the Seller Group with respect to 

the Business, the Transferred Assets and the Assumed Liabilities (including all guaranties, 

warranties, indemnities and similar rights in favor of the Seller Group or any their Affiliates to the 

extent solely related to the Transferred Assets or the Assumed Liabilities), in each case, whether 

arising by way of counterclaim or otherwise, and whether arising out of transactions occurring 

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prior to, on or after the Closing Date, except for such rights, claims and causes of related to the

Excluded Assets or Excluded Liabilities; 

(k) all prepaid expenses, claims, deposits, prepayments, refunds, causes of

action, demands, actions, suits, choses in action, rights of recovery, rights under guarantees, 

warranties, indemnities and all similar rights against third parties, rights of setoff and rights of 

recoupment, in each case, to the extent used in or held for use for the Transferred Assets listed in 

clauses (a) through (j) above or the Assumed Liabilities; 

(l) all accounts receivable, intercompany obligations and other amounts

receivable by the Seller Group (the “Receivables”); and 

(m) all inventory of the Seller Group.

2.2 Excluded Assets. Notwithstanding the provisions of Section 2.1 or anything to the 

contrary herein, any and all assets, rights and properties of the Seller Group that are not specifically 

identified in Section 2.1 as Transferred Assets, including the following (collectively, the 

“Excluded Assets”), shall be retained by the Seller Group, and Purchaser and its designees shall 

acquire no right, title or interest in the Excluded Assets in connection with the Transaction: 

(a) all (i) cash and cash equivalents, wherever located, including bank balances

and bank accounts or safe deposit boxes, monies in the possession of any banks, savings and loans 

or trust companies and similar cash items, (ii) escrow monies and deposits in the possession of 

landlords and utility companies, and (iii) investment securities and other short- and medium-term 

investments; 

(b) all records, documents or other information exclusively relating to current

or former employees of the Seller Group that are not hired by Purchaser, and any materials to the 

extent containing information about any employee, disclosure of which would violate Applicable 

Law or such employee’s reasonable expectation of privacy; 

(c) any interest of the Seller Group under this Agreement or the Related

Documents, including the right to receive the Purchase Price and to enforce the Seller’s rights and 

remedies thereunder; 

(d) all Excluded Contracts (including all prepaid assets relating to the Excluded

Contracts), other than the Assigned Contracts, to which any member of the Seller Group or any of 

their respective Affiliates is a party; 

(e) any (i) Attorney-Client Information arising from communications prior to

the Closing Date between a member of the Seller Group (including any one or more officers, 

directors or stockholders of such Seller Group member), on the one hand, and its counsel, on the 

other hand, and (ii) claims under any director and officer, errors and omissions, fiduciary and 

commercial crime insurance policies; and 

(f) any rights of the Seller Group to Asset Tax refunds (or credits for overpayment 

of Taxes in lieu of a refund) attributable to any Pre-Closing Tax Period; 

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(g) all Permits (including applications therefor and any trade or import/export

Permits) that (i) are not materially related to the Business or (ii) are not transferable to Purchaser 

under Applicable Law;

(h) the Excluded Books and Records;

(i) any assets not otherwise designated as Transferred Assets or from time to

time designated by the parties hereto as Excluded Assets; 

(j) the Avoidance Actions;

(k) all of the Seller Group’s rights, claims or causes of action against third

parties relating to the assets, properties, business or operations of the Seller Group (including all 

guaranties, warranties, indemnities and similar rights in favor of the Sellers Group or any of their 

Affiliates) to the extent arising under the Bankruptcy Code or relating to any of the Excluded 

Assets or Excluded Liabilities, in each case, whether arising by way of counterclaim or otherwise, 

and whether arising out of transactions occurring prior to, on or after the Closing Date; 

(l) all of the Seller Group’s right, title and interest to any the assets set forth on

Schedule 2.2(n); and 

(m) all prepaid expenses, claims, deposits, prepayments, refunds, causes of

action, demands, actions, suits, rights of recovery, rights under guarantees, warranties, indemnities 

and all similar rights against third parties, rights of setoff and rights of recoupment, in each case, 

to the extent exclusively related to or exclusively used in or held for use for the Excluded Assets 

listed in clauses (a) through (m) above. 

Notwithstanding anything to the contrary contained in this Agreement or any of the other Related 

Documents, Purchaser acknowledges and agrees that all of the following are also Excluded Assets, 

and all right, title and interest in and to all Excluded Assets shall be retained by the Seller Group 

and shall remain the property of the Seller Group (and shall expressly be excluded from the sale, 

transfer, assignment and conveyance to Purchaser hereunder), and neither Purchaser nor any of its 

Affiliates shall have any interest therein: (x) all records and reports prepared or received by the 

Seller Group or any of their Affiliates in connection with the sale of the Business and the 

Transactions, including all analyses relating to the Business or Purchaser so prepared or received; 

and (y) all confidentiality agreements with prospective purchasers of the Business or any portion 

thereof and all bids and expressions of interest received from third parties with respect thereto. 

2.3 Assumption of Liabilities. On the terms and subject to the conditions set forth in 

this Agreement, Purchaser shall, effective as of the Closing, assume and agree to pay, discharge 

and perform in accordance with their terms all Liabilities of the Seller Group arising from or related 

to the Business or the Transferred Assets as the same shall exist on the Closing Date and 

irrespective of whether the same shall arise prior to, on or after the Closing Date (collectively, the 

“Assumed Liabilities”), including: 

(a) all Liabilities relating to the Transferred Assets, whether incurred or arising

prior to, at or after the Closing (other than those Liabilities relating to any breach, tort including 

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any tort based on a failure to warn, failure to comply with law, failure to comply with industry 

standards, Nitrosamine Liabilities, or other wrongful conduct); 

(b) subject to Section 2.4, all Liabilities arising under the Assigned Contracts, 

whether incurred or arising prior to, at or after the Closing (other than those Liabilities relating to 

any breach, tort including any tort based on a failure to warn, failure to comply with law, failure 

to comply with industry standards, Nitrosamine Liabilities, or other wrongful conduct), and all of 

the Determined Cure Costs; 

(c) all Taxes for which Purchaser is liable pursuant to this Agreement; 

(d) all accounts payable and other intercompany obligations of the Seller Group 

to the extent related to the Business and arising following the Petition Date; and 

(e) other Liabilities that are listed on Schedule 2.3(d). 

2.4 Excluded Liabilities. Notwithstanding Section 2.3, Purchaser is assuming only the 

Assumed Liabilities of the Seller Group and will not assume or be liable for any Excluded 

Liabilities (including Seller Group Taxes), and the Seller Group shall retain and shall be 

responsible for, all Liabilities of that are not Assumed Liabilities, including all Liabilities related 

to Excluded Assets or any other liabilities of the Business (all such Liabilities not being assumed 

herein referred to as the “Excluded Liabilities”). 

2.5 Excluded Contracts. Pursuant to Section 5.3(b), Purchaser shall be entitled, in its 

sole discretion, by written notice to the Seller up to three Business Days prior to the Closing Date, 

to elect not to purchase or assume one or more Assigned Contract, in which case, notwithstanding 

anything in this Agreement or any Related Document to the contrary, such Assigned Contract shall 

be considered an excluded contract (“Excluded Contract”) (and shall constitute an Excluded 

Asset and not be included in the Transferred Assets) for all purposes of this Agreement and 

Purchaser shall not have any obligation to satisfy or pay any Cure Costs or other Liabilities with 

respect to such Excluded Contract. Each assignable Assigned Contract that Purchaser does not 

elect to remove from the list of Assigned Contracts pursuant to Section 5.3(b) shall be an Assigned 

Contract. 

2.6 Nontransferable Assets and Liabilities. 

(a) Notwithstanding any other provision of this Agreement to the contrary, this 

Agreement shall not constitute an agreement to assign or transfer any Transferred Asset or any 

claim, right or benefit arising thereunder or resulting therefrom if an attempted assignment or 

transfer thereof, without the Consent of a third party (including any Governmental Authority) 

(after giving effect to the Sale Order or any other applicable order of the Bankruptcy Court that 

effects such transfer without any required Consents), would constitute a breach or other 

contravention thereof or a violation of Applicable Law (each, a “Non-Transferred Asset”). 

(b) If, on the Closing Date, any third-party Consent is not obtained for a NonTransferred Asset, or if an attempted transfer or assignment thereof would be ineffective or a 

violation of Applicable Law, then, until any requisite consent is obtained therefor and the same is 

transferred and assigned to Purchaser or its designee, each such Non-Transferred Asset shall be 

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held by the Seller as agent for the Purchaser, and the Seller shall, to the extent permitted by 

Applicable Law, provide to Purchaser the benefits and Purchaser shall assume the obligations and 

bear the economic burdens associated with such Non-Transferred Asset. The Seller and Purchaser 

shall use commercially reasonable efforts to enter into agreements (including subcontracting, 

sublicensing or subleasing, if permitted) by which (i) the Seller shall, at Purchaser’s sole expense, 

without interruption of the Business, provide Purchaser with the economic and operational 

equivalent of obtaining the requisite third-party Consent and assigning the applicable NonTransferred Asset to Purchaser (including, with the prior written consent of Purchaser, enforcing 

for the benefit of Purchaser, and at Purchaser’s sole expense, all claims or rights arising thereunder) 

and (ii) Purchaser shall perform, at its sole expense, the obligations and assume the economic 

burdens of the Seller or its Affiliates to be performed after the Closing with respect to such NonTransferred Asset. Purchaser shall promptly, upon receipt of a written request therefor from the 

Seller, reimburse the Seller for all monies paid by the Seller on Purchaser’s behalf in connection 

with any Assumed Liability not assigned or transferred to Purchaser pursuant to this Section 2.6. 

2.7 Closing. The closing of the Transactions (the “Closing”) will take place remotely 

by electronic exchange of documents on the date (the “Closing Date”) that is the second (2nd) 

Business Day after the date on which all of the conditions set forth in ARTICLE 8 (excluding 

conditions that, by their terms, are to be satisfied at the Closing, but subject to the satisfaction or 

waiver of all such conditions at the Closing), have been satisfied or waived by the party hereto 

entitled the benefit of the same, unless another time or date is agreed to in writing by the parties 

hereto. Except as otherwise set forth herein, all proceedings to be taken and all documents to be 

executed and delivered by all parties hereto at the Closing will be deemed to have been taken and 

executed simultaneously and no proceedings will be deemed to have been taken nor documents 

executed or delivered until all have been taken, executed and delivered. 

2.8 Closing Deliveries of the Parties. At or prior to the Closing: 

(a) Purchaser and the Seller shall execute and deliver the Bill of Sale and 

Assignment and Assumption Agreement; 

(b) Purchaser and the Seller shall execute and deliver the Intellectual Property 

Assignment Agreement, in a form reasonably acceptable to Purchaser and the Seller; 

(c) Escrow Agent, Purchaser and the Seller shall execute and deliver the 

Escrow Agreement; 

(d) On the Closing Date, each Party shall transmit the Buyer’s FDA Transfer 

Letters to the FDA and shall take any other actions reasonably necessary to effect the transfer of 

the Product from the Seller to Purchaser. 

(e) Purchaser shall deliver, or cause to be delivered, to the Seller or the 

applicable Person each of the following: 

(i) a certificate, dated as of the Closing Date, executed by or on behalf 

of Purchaser as to the satisfaction of the conditions set forth in Section 8.3(a) and Section 

8.3(b); and 

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(ii) payment of the closing payments set forth in Section 2.9. 

(f) the Seller shall deliver, or cause to be delivered, to Purchaser or the 

applicable Person each of the following: 

(i) a certificate, dated as of the Closing Date, executed by or on behalf 

of the Seller as to the satisfaction of the conditions set forth in Section 8.2(a) and Section 

8.2(b); and 

(ii) an IRS Form W-9 with respect to the Seller, duly completed and 

executed, dated as of the Closing Date. 

2.9 Purchase Price; Assumed Liabilities; Deposits. 

(a) At the Closing, upon the terms and subject to the conditions set forth herein, 

in full consideration for the sale, transfer, conveyance, assignment and delivery of the Transferred 

Assets to Purchaser and assumption of the Assumed Liabilities by Purchaser, Purchaser shall 

(i) pay to the Seller an aggregate amount equal to the Purchase Price minus the Deposit Escrow 

Amount, which shall be released to the Seller by the Escrow Agent pursuant to Section 2.9(c), by 

irrevocable wire transfer of immediately available funds in accordance with payment instructions 

delivered by the Seller to Purchaser prior to the Closing; and (ii) assume the Assumed Liabilities. 

(b) At the Closing, on the terms and subject to the conditions set forth in this 

Agreement, Purchaser will assume and become responsible for the Assumed Liabilities. Purchaser 

agrees to pay, perform, honor, and discharge, or cause to be paid, performed, honored and 

discharged, all Assumed Liabilities in a timely manner in accordance with the terms hereof, 

including paying or causing to be paid, at or prior to the Closing, all Determined Cure Costs. 

(c) The Deposit Escrow Amount shall be distributed as follows: 

 (i) if the Closing shall occur, (A) the Seller and Purchaser shall deliver a joint 

written instruction to the Escrow Agent in accordance with the Escrow Agreement instructing the 

Escrow Agent to release from the Deposit Escrow Account the entire Deposit Escrow Amount to 

the Seller, by irrevocable wire transfer of immediately available funds, to an account designated 

by the Seller to the Escrow Agent, and (B) the Deposit Escrow Amount shall be delivered to the 

Seller at Closing and credited against the amount required to be paid by Purchaser to the Seller at 

Closing in accordance with Section 2.9(a); 

 (ii) if this Agreement is terminated by the Seller pursuant to Section 9.1(g), (A) 

the Seller and Purchaser shall deliver a joint written instruction to the Escrow Agent in accordance 

with the Escrow Agreement instructing the Escrow Agent to release from the Deposit Escrow 

Account the entire Deposit Escrow Amount to the Seller, by irrevocable wire transfer of 

immediately available funds, to an account designated by the Seller to the Escrow Agent and (B) 

the Deposit Escrow Amount, which shall constitute liquidated damages (and not a penalty), shall 

be delivered to the Seller within two Business Days following delivery of such joint written 

instruction; or 

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 (iii) if this Agreement is validly terminated for any reason in accordance with 

the terms of this Agreement other than by the Seller pursuant to Section 9.1(g) or Purchaser forfeits 

the Deposit Escrow Amount to the Seller pursuant to Section 8.5, (A) the Seller and Purchaser 

shall deliver a joint written instruction to the Escrow Agent in accordance with the Escrow 

Agreement instructing the Escrow Agent to release from the Deposit Escrow Account the entire 

Deposit Escrow Amount to Purchaser, by irrevocable wire transfer of immediately available funds, 

to an account designated by Purchaser to the Escrow Agent, and (B) the Deposit Escrow Amount 

shall be delivered to Purchaser within two Business Days following delivery of such joint written 

instruction. 

Any issue regarding the entitlement to the Deposit Escrow Amount shall be determined by the 

Bankruptcy Court, and Purchaser consents to the jurisdiction of the Bankruptcy Court for any issue 

related to this Agreement. 

2.10 Transfer Taxes. Purchaser shall be solely responsible for, and shall indemnify, 

defend, and hold harmless the Seller Group for, any transfer, documentary, sales, use, excise, stock 

transfer, value-added, stamp, recording, registration and other similar taxes, levies and fees 

(including any penalties, fines and interest), together with any conveyance fees, recording charges 

and other similar fees and charges, incurred in connection with this Agreement and the 

Transactions (collectively, “Transfer Taxes”). Purchaser and the Seller shall cooperate in good 

faith to minimize, to the extent permissible under Applicable Law, the amount of any Transfer 

Taxes due with respect to the Transactions. 

2.11 Allocation of Purchase Price. 

(a) The Purchase Price (including all other amounts treated as consideration for 

U.S. federal income tax purposes, including the Earn-out Payment) and Assumed Liabilities shall 

be allocated as set forth on Schedule 2.11 (the “Preliminary Allocation Schedule”). Within 90 

days following the final determination of the Purchase Price, Purchaser shall deliver to the Seller 

a schedule allocating the Purchase Price (and all other amounts treated as consideration for U.S. 

federal income tax purposes) among the Transferred Assets (the “Allocation Schedule”). The 

Allocation Schedule shall be reasonable and shall be prepared in accordance with the Preliminary 

Allocation Schedule, and Purchaser and the Seller shall negotiate in good faith to resolve disputed 

items, if any, in the Allocation Schedule as promptly as practicable. If Purchaser and the Seller are 

unable to reach agreement with respect to the Allocation Schedule within 30 days after the delivery 

of the Allocation Schedule by Purchaser to the Seller, the parties shall be entitled to use their own 

Purchase Price allocations for Tax reporting purposes. 

(b) To the extent Purchaser and the Seller agree on the Allocation Schedule 

pursuant to Section 2.11(a), Purchaser and the Seller shall (i) timely file all Tax Returns required 

to be filed in connection with the Allocation Schedule, and (ii) prepare and file all Tax Returns 

and determine all Taxes in a manner consistent with the Allocation Schedule, except as may be 

required by Applicable Law and except as may be necessary to reflect adjustments to the 

Allocation Schedule resulting from post-Closing payments or events. Purchaser, on the one hand, 

and the Seller, on the other hand, shall notify the other if it receives notice that any Governmental 

Authority proposes any allocation different from Allocation Schedule. 

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2.12 Escrow Accounts. At the Closing, the Deposit Escrow Amount shall be used to 

satisfy a portion of the payment obligations of Purchaser pursuant to Section 2.9(c), otherwise the 

Deposit Escrow Amount shall be released to Purchaser or the Seller pursuant to Section 2.9(c). 

Upon the final release of all of the Deposit Escrow Amount pursuant to the terms of this Agreement 

and the Escrow Agreement, the Escrow Agreement shall automatically terminate. Any fees owed 

to the Escrow Agent and obligations under the Escrow Agreement shall be borne by Purchaser. 

The Deposit Escrow Amount shall be held in trust for the benefit of the Seller and shall not be 

subject to any encumbrance, attachment, trustee process or any other judicial process of any 

creditor of any party hereto, and shall be held and disbursed solely for the purposes of and in 

accordance with the terms of this Agreement and the Escrow Agreement. 

2.13 Additional Consideration. 

(a) Earn-out Payments. As additional consideration for the Transferred 

Assets, during the period beginning on the first date on which Purchaser or any of its Affiliates, 

licensees or sublicensees generates any Product Net Sales (the “Purchaser Product Launch 

Date”) and continuing for eight (8) full fiscal years thereafter (the “Earn-out Period”), Purchaser 

shall pay Seller: 

(i) Ten percent (10%) of the amount, if any, by which the annual 

Product Net Sales for each fiscal year exceeds $20,000,000 but are less than or equal to 

$45,000,000 during each fiscal year of the Earn-out Period (each such payment, a “First 

Tier Earn-out Payment”); 

(ii) Fifteen percent (15%) of the amount, if any, by which the annual 

Product Net Sales for each fiscal year exceeds $45,000,000 during each fiscal year of the 

Earn-out Period (each such payment, a “Second Tier Earn-out Payment”); 

(iii) A $4,000,0000 one-time payment when the annual Product Net 

Sales equal or exceed $65,000,000 for a fiscal year during the Earn-out Period (the “Third 

Tier Earn-out Payment”); 

(iv) A $8,000,000 one-time payment when the annual Product Net 

Sales equal or exceed $100,000,000 for a fiscal year during the Earn-out Period (the “Final 

Tier Earn-out Payment” and together with the First Tier Earn-out Payments, the Second 

Tier Earn-Out Payments and the Third Tier Earn-out Payment, the “Earn-out Payments”, 

and each such payment, an “Earn-out Payment”). 

(b) Licensing Payments. During the Earn-out Period, Purchaser shall pay Seller 

thirty-three percent (33%) of the annual POD Technology Licensing Revenue (the “POD 

Licensing Share”) generated during each fiscal year. 

(c) Payment Procedures. Within ninety (90) calendar days of the end of each 

fiscal year during the Earn-out Period, Purchaser shall deliver to Seller (i) a statement (each, an 

“Earn-out Statement”) setting forth the Product Net Sales for such fiscal year and the Earn-out 

Payment, if any, payable with respect to such period, (ii) a statement (each a “Licensing 

Statement”) setting for the POD Technology Licensing Revenue for such fiscal year and the POD 

Licensing Share, if any, payable with respect to such period, (iii) the aggregate Earn-out Payment, 

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in cash by wire transfer of immediately available funds and (iv) the POD Licensing Share, in cash 

by wire transfer of immediately available funds. 

(d) Earn-Out Covenants. During the Earn-Out Period, Purchaser and its

Affiliates shall (i) use commercially reasonable efforts to maximize the Earn-Out Payments and 

the POD Technology Licensing Revenue and (ii) not intentionally act in bad faith with the sole 

purpose of frustrating achievement of the Earn-out Payments or maximizing the POD Technology 

Licensing Revenue. 

(e) Asset Sale. If, at any time during the Earn-Out Period, Purchaser (i) sells,

transfers, assigns or otherwise disposes of more than 50% the assets of the Business by value to a 

third party or substantially all of the Trudhesa Assets or (ii) enters into any exclusive licensing 

deal with respect to any of the foregoing, Purchaser shall cause such subsequent acquirer or 

licensor of said assets to assume the obligations set forth in this Section 2.13. 

(f) Information Rights. During the Earn-Out Period, Purchaser will provide the

Seller with a written report within 60 days after the conclusion of each fiscal year setting forth the 

Product Net Sales during the preceding fiscal year (the “Net Sales Report”). If Purchaser 

determines that an Earn-Out Payment has been achieved during any fiscal year, Purchaser shall 

include a notice in the Net Sales Report that such Earn-Out Payment has been achieved. Purchaser 

shall keep, for so long as required under Purchaser’s internal records retention policies, books and 

records pertaining to the Product Net Sales of the Products with respect to each fiscal year. 

(g) Dispute Resolution.

(i) In the event that the Seller disputes the purported occurrence or

non-occurrence of any Earn-Out Payment or Purchaser’s compliance with Section 2.13, 

then the Seller shall provide written notice to Purchaser (the “Dispute Notice”) specifying 

the amount disputed and the basis for the dispute, together with supporting documentation 

reflecting the analysis and justification thereof. Purchaser and the Seller shall thereafter 

attempt to resolve the dispute as set forth in this Section 2.13(g). 

(ii) The Seller and Purchaser shall attempt to resolve any dispute set

forth in a Dispute Notice promptly by negotiation in good faith between the Seller and an 

officer of Purchaser who has authority to settle the dispute. Each Party shall give the other

Party involved written notice of any dispute not so resolved within 30 days following the 

Seller’s delivery of the Dispute Notice. Within 15 Business Days following delivery of 

such notice, the Party receiving notice shall submit to the other a written response thereto. 

The notice and the response shall include a statement of each Party’s position(s) regarding 

the matter(s) in dispute and a summary of arguments in support thereof. 

(iii) Within 10 Business Days following delivery of the notice delivered

pursuant to Section 2.13(g)(ii), the designated officer of Purchaser and the Seller shall meet 

at a mutually agreed time and place, and thereafter, as often as they reasonably deem 

necessary, to attempt to resolve the dispute. All negotiations conducted pursuant to this 

Section 2.13(g) (and any of the Parties’ submissions in contemplation hereof) shall be 

kept confidential by the Parties and shall be treated by the Parties and their 

representatives as 

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compromise and settlement negotiations under the Federal Rules of Evidence and any

similar state rules.

(iv) In the event that the Seller and Purchaser are unable to resolve any

dispute arising out of this Agreement in accordance with provisions (i), (ii) and (iii) of this 

Section 2.13(g) within 60 days after delivery of any Dispute Notice, Purchaser and the 

Seller agree to appoint a neutral, independent accountant who is mutually agreed upon by 

both parties. This accountant shall have the authority to examine all relevant 

documents, records, and financial statements and make a binding determination regarding 

the dispute. The decision of the neutral accountant shall be final and binding on both 

parties, subject only to manifest error. 

(v) The costs for the services of the neutral accountant shall be borne

equally by the Seller and Purchaser, unless the neutral accountant determines that one 

party's position was substantially unjustified, in which case that party shall bear the full 

cost. 

(h) Earn-Out Termination.

(i) At any time between the second and the third anniversaries of

Closing, Purchaser, at its sole discretion, shall be entitled to pay Seller an amount equal to 

the Earn-out Termination Amount, and upon payment of such Earn-out Termination 

Amount, all Earn-out Payments payable pursuant to Section 2.13(a) shall be terminated. 

The “Earn-out Termination Amount” shall be equal to:

The greater of:

(X) $5,000,0000, and

(Y) The product of a) annualized Product Net Sales for the highest quarter of the

four trailing quarters, b) the applicable First Tier Earnout Payment and Second

Tier Earn-out Payments, and c) the remaining Earn-out Period, plus the Third Tier

Earn-out Payment and the Fourth Tier Earn-out Payment, to the extent that

annualized Product Net Sales are above those thresholds.

For example, if Purchaser exercises this right on the second anniversary of 

Closing and the highest trailing quarterly Net Sales are $17 million, the buyout 

amount would equal: $17M x 4 = $68M annualized Product Net Sales. First Tier 

Earn-out = $2.5M, Second Tier Earn-out = $3.45M. $5.95M total x 6 (remaining 

term) = $35.7M, plus Third Tier Earnout of $4M. Total Earn-Out Termination 

Amount of $39.7M. 

(ii) Upon Seller’s receipt of the Earn-Out Termination Amount,

Purchaser shall be released from any further obligations related to Earn-out Payments 

under this Agreement, and the Seller shall not be entitled to any additional payments 

beyond the Earn-Out Termination Amount for the Earn-Out Period. 

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(iii) Upon written notice to Seller that the Earn-Out Termination

Amount is being paid, Purchaser shall have thirty (30) days to make the payment in cash 

by wire transfer of immediately available funds. 

ARTICLE 3.

REPRESENTATIONS AND WARRANTIES OF THE SELLER 

Except as disclosed in a document herewith delivered by the Seller to Purchaser (the “Schedules”), 

the Seller hereby makes the representations and warranties contained in this ARTICLE 3 to 

Purchaser. 

3.1 Organization, Good Standing and Other Matters; Subsidiaries. Each member 

of the Seller Group is duly organized, validly existing and in good standing under the Applicable 

Laws of its jurisdiction of organization and has, subject to the necessary authority of the 

Bankruptcy Court, the requisite corporate power and authority to operate the Business and 

necessary to own, lease or operate the properties and assets owned, leased or operated by it to carry 

on the Business as now being conducted, except where the failure to be so duly organized, validly 

existing and in good standing, or to have such power and authority, would not, individually or in 

the aggregate, have a Material Adverse Effect. Each member of the Seller Group is duly qualified 

to do business as a foreign company in each jurisdiction in which the nature of the Business as 

currently conducted by it or the property owned or leased by it makes such qualification necessary, 

except where the failure to be so qualified would not, individually or in the aggregate, have a 

Material Adverse Effect. 

3.2 Authority and Enforceability. Subject to Bankruptcy Court approval, the Seller 

has all requisite power and authority to execute and deliver this Agreement and each of the Related 

Documents to which it is (or at Closing, will be) a party and to perform its obligations hereunder 

and thereunder and to consummate the Transactions. The execution, delivery and performance of 

this Agreement and the each of the Related Documents to which the Seller is (or at Closing, will 

be) a party thereto, and the consummation by the Seller of the Transactions, has been duly 

authorized and approved by all necessary limited liability company action on the part of the Seller 

and are subject to the approval of the Bankruptcy Court. This Agreement has been, and each 

Related Document will be, at or prior to the Closing, duly executed and delivered by the Seller 

and, assuming the due execution and delivery by the other parties hereto or thereto, and subject to 

the approval of the Bankruptcy Court, constitutes a valid and binding obligation of the Seller, 

enforceable against it in accordance with its respective terms, except to the extent that such 

enforceability may be subject to, and limited by, the Enforceability Exceptions. 

3.3 No Conflict; Required Filings and Consents. Except (a) such filings as may be 

required in connection with the Transfer Taxes described in Section 2.10 and (b) as otherwise set 

forth on Schedule 3.3, the execution and delivery of this Agreement by the Seller does not and the 

execution and delivery of the Related Documents by the Seller will not, and the consummation of 

the Transactions hereby and thereby will not (i) violate the provisions of the Organizational 

Documents of any member of the Seller Group, (ii) subject to the entry of the Sale Order, violate 

any Applicable Law or Order to which any member of the Seller Group is subject or by which its 

properties or assets are bound, (iii) require any member of the Seller Group to obtain any Consent, 

or give any notice to, or make any filing with, any Governmental Authority on or prior to the 

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Closing Date (except as required by the Bankruptcy Code or the Sale Order), (iv) subject to the 

entry of the Sale Order, result in a breach of or constitute a default (with or without due notice or 

lapse of time or both), give rise to any right of termination, cancellation or acceleration under, or 

require the Consent of any third party to, any Assigned Contract or (v) subject to the entry of the 

Sale Order, result in the imposition or creation of any Lien upon or with respect to any of the assets 

or properties of the Seller Group; excluding from the foregoing clauses (ii) through (v) any 

Consents, approvals, notices and filings the absence of which, and violations, breaches, defaults, 

rights of acceleration, cancellation or termination, and Liens, the existence of which would not, 

individually or in the aggregate, have a Material Adverse Effect. 

3.4 Compliance With Laws. To the Seller’s Knowledge, (i) the Seller Group is 

conducting the Business in compliance in all material respects with all material Applicable Laws 

applicable to the Business and (ii) no member of the Seller Group has received any written notice 

since the Petition Date of any material violations of any material Applicable Law applicable to 

their conduct of the Business. As of the Agreement Date, the Seller has and, to the Seller’s 

knowledge, has obtained all permits, licenses, certifications, registrations, qualifications, 

authorizations, consents or approvals of the FDA or any other Governmental Authority, currently 

used in, necessary for and material to the operation of sale of the Product as presently conducted, 

all such permits, licenses, certifications, registrations, qualifications, authorizations, consents or 

approvals are included in the Trudhesa Assets and Seller has made available to Purchaser true and 

complete copies of all such permits, licenses, certifications, registrations, qualifications, 

authorizations, consents or approvals. As of the Agreement Date, neither Seller nor, to the Seller’s 

knowledge, any other Person has received any communication from any Governmental Authority 

that threatens to withdraw or suspend any such permits, licenses, certifications, registrations, 

qualifications, authorizations, consents or approvals. Seller has filed with the applicable 

Regulatory Authorities all required filings, declarations, listings, registrations, reports or 

submissions, including adverse event reports, necessary for and material to the operation of sale 

of the Product as presently conducted. All relevant filings, declarations, listings, registrations, 

reports or submissions were in material compliance with Applicable Law when filed, and no 

deficiencies have been asserted by any Governmental Authority with respect to any such filings, 

declarations, listing, registrations, reports or submissions. As of the Agreement Date, the Seller 

has not received or been subject to: (1) any FDA Form 483s directly relating to the Product; (2) 

any FDA notices of adverse findings relating to the Product; or (3) any warning letters or other 

correspondence from the FDA or any other Governmental Authority in which the FDA or such 

other Governmental Authority asserted that the actions of Seller, with respect to the Product, were 

not in compliance with Applicable Laws. There has not been any occurrence of any product recall, 

market withdrawal or replacement, or post-sale warning conducted by or on behalf of the Seller 

concerning the Product or, to the Seller’s Knowledge, any product recall, market withdrawal or 

replacement conducted by or on behalf of any entity as a result of any alleged defect in the Product. 

3.5 Permits. To the Seller’s Knowledge, (i) the Seller Group possess all material 

Permits required for the operation of the Business as currently conducted (the “Seller Permits”) 

and (ii) no member of the Seller Group has received as of the Agreement Date any written notice 

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of any cancellation, suspension, revocation, invalidation or non-renewal of any Permit since the 

Petition Date. 

3.6 Litigation. As of the Agreement Date, there is no Action pending or, to the Seller’s 

Knowledge, formally threatened in writing, against any member of the Seller Group before any 

Governmental Authority that would have a Material Adverse Effect or affect the Transferred 

Assets in any material respect after the entry of the Sale Order, if determined adversely and after 

taking into effect applicable insurance coverage. 

3.7 Real Property; Personal Property. 

(a) The Seller Group does not own any real property.

(b) Schedule 3.6(b) sets forth each parcel of real property leased by the Seller 

Group. 

(c) Schedule 3.7(b) sets forth a list of all leases of tangible assets and other 

personal property of the Seller Group as of the Agreement Date involving annual payments in 

excess of $50,000. Each member of the Seller Group has good and valid title to, or in the case of 

leased tangible assets and other personal property, a valid leasehold interest in (or other right to 

use), all of the material tangible assets and other personal property that are necessary for such 

member of the Seller Group to conduct the Business, in each case, free and clear of all Liens to 

the maximum extent permitted by Section 363(f) of the Bankruptcy Code (other than Permitted 

Liens). All such material tangible assets and other personal property are in good condition and 

repair, normal wear and tear excepted. 

3.8 Assigned Contracts. With respect to the Assigned Contracts, (i) except as a result 

of, or arising in connection with, the filing of the Bankruptcy Cases, no member of the Seller 

Group has received any written notice of any default or event that (with due notice or lapse of time 

or both) would constitute a default by the applicable member of the Seller Group under any 

Assigned Contract, other than defaults that have been cured or waived in writing or would not 

reasonably be expected to have a Material Adverse Effect, (ii) to the Seller’s Knowledge, each 

Assigned Contract is a legal, valid and binding obligation of the applicable member of the Seller 

Group and is in full force and effect (except to the extent subject to, and limited by, the 

Enforceability Exceptions), (iii) to the Seller’s Knowledge, no other party to any Assigned 

Contract is (with or without the lapse of time or the giving of notice, or both) in material breach 

of or in material default under any Assigned Contract and (iv) to the Seller’s Knowledge, no 

member of the Seller Group has provided or received any notice of any intention to terminate any 

Assigned Contract. The Seller has made available to Purchaser true, correct and complete copies 

of each of the Assigned Contracts listed on Schedule 3.8, together with all amendments thereto. 

3.9 Financial Statements. Schedule 3.9 sets forth the Seller’s (i) balance sheet and 

the related financial statements of revenue, expenses, retained earnings, and cash flow for the fiscal 

year ending on December 31, 2022, (ii) balance sheet and the related financial statements of 

revenue, expenses, retained earnings, and cash flow for the quarter ending on September 30, 2022 

and (iii) the Seller’s internally prepared statements of revenue, expenses, retained earnings, and 

cash flow for the months ending October 31, 2023 (collectively, the “Seller Financial 

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Statements”). The Seller Financial Statements have been prepared in accordance with GAAP 

(except as may be indicated in the notes to such financial statements or, in the case of unaudited 

financial statements, except as permitted by the SEC on Form 10-Q under the Exchange Act, and 

except that the unaudited financial statements may not contain footnotes and are subject to normal 

and recurring year-end adjustments), have been prepared on a consistent basis throughout the 

periods covered thereby and presents fairly in all respects the financial condition of the Seller as 

of such dates and the results of operations of Seller for such periods, and are consistent with the 

books and records of Seller (which books and records are correct and complete in all material 

respects). 

3.10 Absence of Material Developments. Except as disclosed on Schedule 3.10, since 

the Petition Date, there has occurred no fact, event, condition, change or circumstance which has 

had or would reasonably be expected to have a Material Adverse Effect. 

3.11 Customers and Suppliers. Except as disclosed on Schedule 3.11(a), to the 

Knowledge of the Seller, since the Petition Date, no customer has or has threatened to stop or 

decrease the rate of, or as a result of the Bankruptcy Cases or the Transactions, purchasing 

materials, products or services from the Business. Except as disclosed on Schedule 3.11(b), to the 

Knowledge of the Seller, no supplier has or has threatened to stop or decrease the rate of, or as a 

result of the Bankruptcy Cases or the Transactions. supplying materials, products or services to 

the Business. 

3.12 Intellectual Property. 

(a) A true, correct and complete list of all Intellectual Property Registrations, 

material unregistered trademarks, and all material software included in the Owned Intellectual 

Property Assets is set forth on Schedule 3.12(b). 

(b) The Seller Group exclusively owns all Owned Intellectual Property Assets 

and, pursuant to an Assigned Contract as of the Agreement Date, has valid and enforceable rights 

to use all material Business Intellectual Property that is not an Owned Intellectual Property Asset. 

Except as set forth on Schedule 3.12(b), no member of the Seller Group is a party to, or bound by, 

(i) any license, royalty agreement, or other agreement relating to the use of any material Business 

Intellectual Property (other than non-exclusive licenses grant to a member of the Seller Group for 

commercially available, unmodified, off-the-shelf software licensed for aggregate annual fees of 

less than $50,000), and (ii) agreements pursuant to which a member of the Seller Group settled 

any action, litigation, suit or other judicial or administrative proceeding, claim, assertion, or threat 

with respect to Intellectual Property, including settlement agreements, coexistence agreements, 

and consent agreements. 

(c) Other than with respect to Excluded Contracts or Assigned Contracts that 

Purchaser does not ultimately assume, no current or former Affiliate, partner, director, stockholder, 

officer, member, manager, employee, consultant or contractor of the Seller Group will, after giving 

effect to the Transactions, own, license or retain any Business Intellectual Property. 

(d) All material Intellectual Property Registrations remain pending or in full 

force and effect and have not expired or been abandoned or cancelled. The material Intellectual 

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Property Registrations are subsisting, valid and, to the to the Seller’s Knowledge, enforceable. 

With respect to each item of the material Intellectual Property Registrations, all registration, 

issuance, renewal, maintenance and other payments that are or have become due with respect 

thereto have been timely paid by or on behalf of the Seller Group. No interference, opposition, 

reissue, reexamination, or other proceeding is or has been pending or, to Seller’s Knowledge, 

threatened, in which the scope, validity, or enforceability of any material Owned Intellectual 

Property Assets is being, has been, or could reasonably be expected to be contested or challenged. 

To the Seller’s Knowledge, there is no basis for a claim that any of the Owned Intellectual Property 

Assets is invalid or unenforceable. 

(e) To the Knowledge of the Seller, the conduct of the Business does not 

infringe, misappropriate or otherwise violate (and, since January 1, 2021 has not infringed, 

misappropriated or otherwise violated) in any material respect any Person’s Intellectual Property, 

and no member of the Seller Group has received written notice of any claim or demand since 

January 1, 2021 alleging any such infringement, misappropriation or other violation. 

(f) To the Knowledge of the Seller’s, no Person is currently infringing, 

misappropriating or otherwise violating any material Owned Intellectual Property Assets. No 

claim of such infringement, misappropriation or other violation of any material Owned Intellectual 

Property Assets has been asserted or threatened in writing against any Person since January 1, 

2021 by any member of the Seller Group. 

(g) The Seller Group has taken commercially reasonable steps to safeguard and 

maintain the confidentiality of all trade secrets that constitute Owned Intellectual Property Assets, 

including by using good faith efforts to require all Persons having access thereto to execute written 

non-disclosure agreements. To the Knowledge of the Seller, there has not been unauthorized 

disclosure of material trade secrets by any member of the Seller Group that has resulted or is 

reasonably likely to result in the loss of trade secret or other rights in and to such information. 

(h) Each member of the Seller Group is in material compliance with the terms 

and conditions of all Contracts pursuant to which such member obtains or uses any Open Source 

Software in the Business and (ii) no member of the Seller Group has (A) incorporated Open Source 

Software into, or combined Open Source Software with, any material Technology included in the 

Owned Intellectual Property Assets; (B) distributed Open Source Software in conjunction with 

any such Technology; or (C) used Open Source Software, in each case ((A)-(C)), in such a way 

that requires any such Technology to be (1) disclosed or distributed in source code form, (2) 

licensed for the purpose of making derivative works or (3) redistributable at no charge. 

(i) Except as would not have a material impact on the Transferred Assets, the 

information technology systems used by, or on behalf of, the Seller Group are each in good 

working condition and are adequate for the operation of the Business. The Seller Group undertakes 

commercially reasonable efforts to maintain the security and integrity of its information 

technology systems. The Seller Group complies, and since January 1, 2021 has complied in all 

material respects, with all applicable Laws, internal policies and contractual obligations relating 

to privacy, data protection and cybersecurity. Since January 1, 2021, there have not been any 

security breaches in any information technology systems used by, or on behalf of, any member of 

the Seller Group or with respect to personally identifiable information contained therein, in each 

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case, relating to the Transferred Assets, for which notice to any Governmental Authority or 

individual was given or required to be given.

3.13 Inventories. Except as disclosed on Schedule 3.13, all inventories of each member 

of the Seller Group (whether or not reflected on the Seller Financial Statements) consist of a quality 

and quantity usable and, with respect to finished goods, saleable, in the ordinary course of business. 

No member of the Seller Group is in possession of any goods or inventory not owned by a member 

of the Seller Group, and the inventories (other than goods in transit) of a member of the Seller 

Group are located on the premises of the Seller Group. The reserve for obsolescence with respect 

to inventories is adequate and calculated consistent with past practice. Inventories that were 

purchased after the date of the balance sheet included in the Seller Financial Statements were 

purchased in the ordinary course of business at a cost not exceeding market prices prevailing at 

the time of purchase for items of similar quality and quantity. The quantities of each item of 

inventory are not excessive, but are reasonable for the continued operation of each member of the 

Seller Group in the ordinary course of business. 

3.14 Taxes. The Seller Group has timely filed all Tax Returns that it was required to file 

with respect to Transferred Assets. All such Tax Returns were correct and complete in all material 

respects. All Taxes owed by the Seller Group (whether or not shown or required to be shown on 

any Tax Return) with respect to Transferred Assets have been paid. There are no liens on any of 

the Transferred Assets that arose in connection with any failure (or alleged failure) to pay any Tax. 

There is no dispute, examination, judicial proceeding or claim concerning any Taxes of the Seller 

Group with respect to the Transferred Assets. 

3.15 Product Liability. Except as disclosed on Schedule 3.15, within the three (3) year 

period prior to the Closing Date there has not been any, and as of the Closing Date there is no 

pending, material litigation commenced against any member of the Seller Group relating to the 

sale, distribution or use of any item sold or used in the Business (the “Goods”), including litigation 

with respect to product liability or recall claims. 

3.16 Product Warranties; Product Returns. Except for warranties arising solely 

pursuant to Applicable Law or in the ordinary course of business, (a) no member of the Seller 

Group has made any material warranties, express or implied, written or oral, to any third party 

with respect to any of the Goods within the three (3) year period prior to the Closing Date, and (b) 

there is no, and within the three (3) year period prior to the Closing Date there has not been any, 

material litigation pending or, to the Seller’s Knowledge, threatened with respect to any such 

warranty. 

3.17 Accounts Payable. The Seller has fully paid all accounts payable and related 

intercompany obligations of the Seller Group associated with the Business, incurred up to the 

Petition Date with respect to the suppliers or vendors set forth on Schedule 3.17. 

3.18 Brokers and Finders. Except for Moelis & Company LLC, the Seller has not, 

directly or indirectly, entered into any agreement with any Person that would obligate the Seller to 

pay any commission, brokerage fee or “finder’s fee” in connection with the Transactions. 

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3.19 No Other Representations or Warranties. Except for the representations and 

warranties contained in this ARTICLE 3, the Seller does not, nor do any other Persons on behalf 

of the Seller, make any other express or implied representation or warranty with respect to itself, 

the Business, the Transferred Assets or the Assumed Liabilities, or with respect to any other 

information provided to Purchaser or its representatives, and the Seller disclaims any other 

representations or warranties, whether made by or on behalf of the Seller or any other Person. The 

Seller will not, and no other Persons will, have or be subject to any Liability to Purchaser or any 

other Person resulting from the distribution to Purchaser, or Purchaser’s use of, any such 

information, including any information, documents, projections, forecasts or other material made 

available to Purchaser or its representatives in any “data rooms,” “virtual data rooms,” 

management presentations or in any other form in expectation of, or in connection with, the 

Transactions, or in respect of any other matter or thing whatsoever (electronic or otherwise) or 

otherwise in expectation of the Transactions. 

ARTICLE 4.

REPRESENTATIONS AND WARRANTIES OF PURCHASER 

Except as disclosed in a document herewith delivered by Purchaser to the Seller (the “Purchaser 

Schedules”), Purchaser hereby makes the representations and warranties contained in this 

ARTICLE 4 to the Seller. 

4.1 Organization, Good Standing and Other Matters. Purchaser is duly organized, 

validly existing and in good standing under the Applicable Laws of its jurisdiction of organization 

and has all requisite corporate power or other entity power and authority to own its properties and 

to carry on its business as now being conducted. Purchaser is duly qualified or licensed to conduct 

its business as currently conducted and is in good standing in each jurisdiction in which the location 

of the property owned, leased or operated by it or the nature of its business makes such 

qualification necessary, except where the failure to be so qualified or licensed would not, 

individually or in the aggregate, materially impair or delay Purchaser’s ability to consummate the 

Transactions. 

4.2 Authority and Enforceability. Purchaser has all requisite corporate power or other 

entity power and authority to execute and deliver this Agreement and each of the Related 

Documents to which it is (or at Closing, will be) a party and to perform its obligations hereunder 

and thereunder and to consummate the Transactions. The execution, delivery and performance of 

this Agreement and each of the Related Documents to which it is (or at Closing, will be) a party, 

and the consummation of the Transactions, have been duly authorized and approved by its board 

of directors (or equivalent governing body) and no other action on the part of Purchaser or its 

members is necessary to authorize the execution, delivery and performance of this Agreement and 

the Related Documents by Purchaser and the consummation of the Transactions. This Agreement 

has been, and each Related Document will be at or prior to Closing, duly executed and delivered 

by Purchaser and, assuming the due execution and delivery by the other parties hereto or thereto, 

constitutes a valid and binding obligation of Purchaser enforceable against it in accordance with 

its respective terms, except to the extent that such enforceability may be subject to, and limited by, 

the Enforceability Exceptions. 

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4.3 No Conflict: Required Filings and Consents. Except (a) such filings as may be 

required in connection with the Transfer Taxes described in Section 2.10 and (b) as set forth on 

Schedule 4.3, the execution and delivery of this Agreement and of the Related Documents and the 

consummation of the Transactions by Purchaser will not (i) violate the provisions of its 

Organizational Documents, (ii) violate any Applicable Law or Order to which it is subject or by 

which any of its properties or assets are bound, (iii) require it to obtain any Consent, or give any 

notice to, or make any filing with, any Governmental Authority on or prior to the Closing Date, 

(iv) result in a material breach of or constitute a default (with or without due notice or lapse of 

time or both), give rise to any right of termination, cancellation or acceleration under, or require 

the Consent of any third party to, any material Contract to which it is a party or (v) result in the 

imposition or creation of any Lien upon or with respect to any of its assets or properties; excluding 

from the foregoing clauses (ii) through (v) Consents, approvals, notices and filings the absence of 

which, and violations, breaches, defaults, rights of acceleration, cancellation or termination, and 

Liens, the existence of which would not, individually or in the aggregate, (A) have a material 

adverse effect on the ability of Purchaser to perform its obligations under this Agreement or 

(B) otherwise prevent, hinder or delay the consummation of the Transactions. 

4.4 Financing. Purchaser has, and at the Closing will have, (a) sufficient internal funds 

(without giving effect to any unfunded financing regardless of whether any such financing is 

committed) available to pay the Purchase Price in accordance with the terms hereof and any other 

payments required hereunder and any expenses incurred or required to be paid by Purchaser in 

connection with the Transactions, and (b) the resources and capabilities (financial or otherwise) to 

perform its obligations hereunder and under the Related Documents. Purchaser has not incurred 

any obligation, commitment, restriction or Liability of any kind, which would impair or adversely 

affect such resources and capabilities. 

4.5 Solvency. Purchaser is not entering into this Agreement with the intent to hinder, 

delay or defraud either present or future creditors. Immediately after giving effect to all of the 

Transactions, including the making of the payments contemplated by Section 2.9, and assuming 

satisfaction of the conditions to Purchaser’s obligation to consummate the Transactions as set forth 

herein, the accuracy of the representations and warranties of Purchaser set forth herein and the 

performance by Purchaser of its obligations hereunder in all material respects, Purchaser will be 

Solvent. 

4.6 Litigation. There is no Action pending or, to Purchaser’s Knowledge, formally 

threatened against Purchaser or involving any of its properties or assets that would be reasonably 

be expected to (a) have a material adverse effect on the ability of Purchaser to perform its 

obligations under this Agreement or (b) otherwise prevent, hinder or delay the consummation of 

the Transactions. 

4.7 Brokers and Finders. None of Purchaser or its Affiliates have, directly or 

indirectly, entered into any agreement with any Person that would obligate the Seller to pay any 

commission, brokerage fee or “finder’s fee” in connection with the Transactions. 

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4.8 Investigation and Agreement by Purchaser; Non-Reliance of Purchaser; No 

Other Representations and Warranties. 

(a) Purchaser acknowledges that it and its representatives have received 

access to such books and records, facilities, equipment, contracts and other assets of the Business 

which it and its representatives have desired or requested to review. Purchaser acknowledges and 

agrees that it has made its own inquiry and investigation into, and, based thereon, have formed an 

independent judgment concerning the Seller Group, the Business, the Transferred Assets and the 

Assumed Liabilities. 

(b) Except for the specific representations and warranties expressly 

made by the Seller in ARTICLE 3 as further limited by the specifically bargained-for exclusive 

remedies as set forth in ARTICLE 9 of this Agreement, Purchaser acknowledges and agrees that 

(i) the Seller is not making and have not made any representation or warranty, expressed or 

implied, at law or in equity, in respect of the Business, the Transferred Assets, the Assumed 

Liabilities, or any of its operations, prospects or condition (financial or otherwise), including with 

respect to merchantability or fitness for any particular purpose of any assets, the nature or extent 

of any Liabilities, the prospects of the Business, the effectiveness or the success of any operations, 

or the accuracy or completeness of any confidential information memoranda, documents, 

projections, material or other information (financial or otherwise) regarding the Business furnished 

to Purchaser or its representatives or made available to Purchaser and its representatives in any 

“data rooms,” “virtual data rooms,” management presentations or in any other form in expectation 

of, or in connection with, the Transactions, or in respect of any other matter or thing whatsoever, 

and (ii) no officer, director, manager, stockholder, agent, Affiliate, advisor, representative or 

employee of the Seller Group has any authority, express or implied, to make any representations, 

warranties or agreements not specifically set forth in ARTICLE 3 and subject to the limited 

remedies herein provided. 

(c) Other than the specific representations and warranties expressly set 

forth in ARTICLE 3 3 as further limited by the specifically bargained-for exclusive remedies as 

set forth in ARTICLE 9 of this Agreement, Purchaser specifically disclaims that it is relying upon 

or has relied upon any such other representations or warranties that may have been made by any 

Person, and acknowledges and agrees that the Seller and the Seller’s Affiliates have specifically 

disclaimed and do hereby specifically disclaim, and shall not have or be subject to any Liability 

for reliance on any such other representation or warranty made by any Person. Purchaser 

specifically waives any obligation or duty by the Seller or the Seller’s Affiliates to make any 

disclosures of fact not required to be disclosed pursuant to the specific representations and 

warranties expressly set forth in ARTICLE 3 and disclaim reliance on any information not 

specifically required to be provided or disclosed pursuant to the specific representations and 

warranties set forth in ARTICLE 3.

(d) Purchaser is acquiring the Business, the Transferred Assets and the 

Assumed Liabilities subject only to the specific representations and warranties expressly set forth 

in ARTICLE 3 as further limited by the specifically bargained-for exclusive remedies as set forth 

in Section 9 of this Agreement. 

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4.9 No Other Representations or Warranties. Except for the representations and 

warranties contained in this ARTICLE 4, neither Purchaser nor any other Person on behalf of 

Purchaser makes any other express or implied representation or warranty with respect to Purchaser 

or with respect to any other information provided to the Seller or its representatives, and Purchaser 

disclaims any other representations or warranties, whether made by Purchaser or any of its 

Affiliates, officers, directors, employees, agents or representatives. 

ARTICLE 5.

BANKRUPTCY COURT MATTERS 

5.1 Competing Transaction. This Agreement is subject to approval by the Bankruptcy 

Court and the consideration by the Seller of higher or better competing bids in respect of all or any 

part of the Transferred Assets (whether in combination with other assets of the Seller Group or 

otherwise) in accordance with the terms of the Bid Procedures Order (each, a “Competing Bid”). 

From the Agreement Date (and any prior time) and until the Closing, the Seller is permitted to, 

and to cause its representatives to, initiate contact with, solicit or encourage submission of any 

inquiries, proposals or offers by, any Person (in addition to Purchaser and its Affiliates and 

representatives) in connection with any sale or other disposition of the Transferred Assets. In 

addition, the Seller shall have the authority to respond to any inquiries or offers to purchase all or 

any part of the Transferred Assets (whether in combination with other assets of the Seller Group 

or otherwise) and perform any and all other acts related thereto which are required under the 

Bankruptcy Code, the Bid Procedures Order or other Applicable Law, including supplying 

information relating to the Business and the assets of the Seller Group to prospective purchasers. 

5.2 Bankruptcy Court Filings. 

(a) Subject to its right to pursue a Competing Bid in accordance with the Bid 

Procedures Order, the Seller shall diligently pursue the entry by the Bankruptcy Court of the Sale 

Order, which Sale Order shall provide for the transfer of the Transferred Assets and the Assumed 

Liabilities to Purchaser free from all successor or transferee Liability to the fullest extent permitted 

by Section 363 of the Bankruptcy Code. The Seller shall comply (or obtain an Order from the 

Bankruptcy Court waiving compliance) with all requirements under the applicable provisions of 

the Bankruptcy Code, the Federal Rules of Bankruptcy Procedure, and the Local Bankruptcy Rules 

for the Bankruptcy Court in obtaining the entry of the Sale Order. The Seller further covenants and 

agrees that, after entry by the Bankruptcy Court of the Sale Order, and provided, that the Sale 

Order becomes a Final Order, the terms of any other proposed order submitted by the Seller to the 

Bankruptcy Court shall not conflict with, supersede, abrogate, nullify or restrict the terms of this 

Agreement, or in any way prevent or interfere with the consummation or performance of the 

Transactions. Purchaser agrees that it will promptly take such actions as are reasonably requested 

by the Seller to assist in obtaining entry of the Sale Order, including by furnishing affidavits or 

other documents or information for filing with the Bankruptcy Court for the purposes, among 

others, of providing necessary assurances of performance by Purchaser under this Agreement and 

demonstrating that Purchaser is a “good faith” purchaser under Section 363(m) of the Bankruptcy 

Code. In the event, if the entry of the Sale Order shall be appealed, the Seller and Purchaser shall 

use their respective commercially reasonable efforts to defend such appeal. 

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(b) Within five (5) days after the Petition Date, Seller will file the Bid 

Procedures Motion seeking the Bankruptcy Court’s entry of the Bid Procedures Order substantially 

in the form and substance reasonably agreed to by the Buyer and Seller, among other things, (A) 

establishing the Bid Procedures, (B) approving payment of the Termination Fee and the Expense 

Reimbursement, to the extent payable by the terms of this Agreement and the Bid Procedures 

Order, and (C) providing that the Termination Fee and the Expense Reimbursement shall constitute 

superpriorirty administrative expenses of the Seller with priority over any and all administrative 

expenses pursuant to section 503(b) of the Bankruptcy Code.

(c) Seller shall use commercially reasonable efforts to provide Purchaser with 

a reasonable opportunity to review and comment upon all motions, applications, and supporting 

papers relating to the transactions contemplated by this Agreement prepared by Seller or any 

Affiliates (including forms of orders and notices to interested parties) prior to the filing thereof in 

the Bankruptcy Cases; provided that the foregoing shall not require the Seller to take any action 

that would, in Seller’s reasonable business judgment, threaten to harm the overall value to be 

produced by the Seller’s in-court sale process. 

(d) The form of Bid Procedures Order and form of Sale Order submitted by the 

Seller to the Bankruptcy Court for approval must be reasonably satisfactory in form and substance 

to the Purchaser; provided that an order approving the form of Bid Procedures Order is, and shall 

be deemed to be, acceptable to Purchaser. 

(e) Seller shall not seek any modification to the Bid Procedures, Bid Procedures 

Order, or Sale Order by the Bankruptcy Court that are materially adverse to the Purchaser without 

the prior written consent of Purchaser, which such consent shall not be unreasonably withheld. 

(f) Each of Purchaser and Seller will promptly take such actions as are 

reasonably requested by the other party to assist in obtaining entry of the Bid Procedures Order 

and, subject to the Bid Procedures Order, the Sale Order, including furnishing affidavits or other 

documents or information for filing with the Bankruptcy Court for purposes, among others, of 

providing necessary assurances of performance by Seller of its obligations under this Agreement 

and demonstrating that Purchaser is a good faith buyer under section 363(m) of the Bankruptcy 

Code. 

(g) Seller shall use commercially reasonable efforts to provide appropriate 

notice of the hearings on the Sale Motion to all Persons entitled to notice, including, but not limited 

to, all Persons that have asserted Liens on the Transferred Assets, all parties to the Assigned 

Contracts and all taxing authorities in jurisdictions applicable to Seller and as otherwise required 

by the Bankruptcy Code and bankruptcy rules. 

(h) Within five (5) Business Days of the Auction (subject to the Bankruptcy 

Court’s availability), if Purchaser is the successful bidder at the Auction (or if there is no Auction), 

Seller will seek entry of the Sale Order by the Bankruptcy Court. 

(i) The Seller and Purchaser agree that, in the event that Purchaser is not the 

winning bidder at an auction undertaken pursuant to the Bid Procedures Order (the “Auction”), 

and (i) Purchaser submits the Back-Up Bid at the Auction or (ii) the terms of this Agreement are 

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deemed to constitute a Back-Up Bid, then Purchaser shall be obligated to promptly consummate 

the Transactions upon the terms and conditions as set forth herein, including the payment of the 

Purchase Price as the same may be increased by Purchaser at the Auction; provided that, the Seller 

gives written notice to Purchaser on or before the Back-up Termination Date, stating that the Seller 

(A) failed to consummate the sale of the Transferred Assets with the winning bidder, and (B) 

terminated the purchase agreement with the winning bidder. 

5.3 Assumption of Assigned Contracts. 

(a) On or before the date that is five Business Days following the date on which 

the Bid Procedures Order is entered by the Bankruptcy Court, the Seller shall file (or cause to be 

filed) a notice of assumption (the “Assumption Notice”) with the Bankruptcy Court and serve 

such notice on each counterparty to an Assigned Contract listed thereon. The Assumption Notice 

shall identify all Assigned Contracts that the Seller and Purchaser believe may be assumed and 

assigned in connection with the sale of the Transferred Assets and set forth a good faith estimate 

of the amount of Cure Costs applicable to each such Assigned Contract (and if no Cure Cost is 

estimated to be applicable with respect to any particular Assigned Contract, the amount of such 

Cure Cost designated for such Assigned Contract shall be “$0.00”). In accordance with the Bid 

Procedures Order, the Seller reserves the right to supplement such list of Assigned Contracts and 

provide additional notice of assumption, and to remove an Assigned Contract from the list of 

Assigned Contracts, up to five days prior to the hearing by the Bankruptcy Court with respect to 

the Sale Motion. 

(b) On or before the date that is five Business Days before the Closing Date 

(the “Designation Deadline”), Purchaser shall provide to the Seller a list of those Assigned 

Contracts that it elects to have assumed and assigned to Purchaser on the Closing Date 

(the “Designated Contracts”). Purchaser shall be entitled to remove certain Assigned Contracts 

from the list of Designated Contracts at any time prior to the Designation Deadline by providing 

the Seller written notice of such removal. In the event that Purchaser removes any of such Assigned 

Contracts from such list, the Seller will provide the relevant counterparty written notice that the 

applicable Assigned Contract is no longer identified as a Designated Contract. For the avoidance 

of doubt, only those executory Assigned Contracts that remain identified as Designated Contracts 

as of the Closing Date will constitute Assigned Contracts and will be assumed by the Seller and 

assigned to Purchaser pursuant to the Sale Order. The Seller shall file such motions or pleadings 

as may be appropriate or necessary to assume and assign the Assigned Contracts and to determine 

the amount of the Cure Costs; provided, that nothing herein shall preclude the Seller from filing 

one or more motion to reject any Contracts that are not Assigned Contracts. 

(c) Notwithstanding any provision in this Agreement to the contrary, a Contract 

shall not be a Designated Contract hereunder and shall not be assigned to, or assumed by, Purchaser 

to the extent that such Contract is (i) deemed rejected under Section 365 of the Bankruptcy Code, 

(ii) the subject of an objection to assignment or assumption or requires the consent of any 

Governmental Authority or other third party (other than, and in addition to, the Bankruptcy Court) 

in order to permit the assumption and assignment by the applicable Seller to Purchaser of such 

Contract pursuant to Section 365 of the Bankruptcy Code, and such objection has not been resolved 

or such consent has not been obtained prior to the thirtieth day following the Closing Date (as such 

period may be extended by mutual agreement of Seller and Purchaser), or (iii) is terminated by 

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any party thereto other than Seller, or terminates or expires by its terms, on or prior to such time 

as it is to be assumed by Purchaser as a Designated Contract hereunder and is not continued or 

otherwise extended upon assumption. In no event shall the failure to assign to Purchaser any 

Contract in accordance with subsections (i) through (iii) above reduce the Purchase Price payable 

to Seller or constitute a failure to satisfy the conditions precedent of Seller under Section 8.3. 

(d) Subject to the terms of Section 2.5, Section 2.8, Section 5.3(a) and Section 

5.3(b), Purchaser shall make provision for the payment of the Determined Cure Costs in cash at 

Closing in accordance with the Sale Order. 

(e) Notwithstanding any provision in this Agreement to the contrary, from and 

after the date of the Assumption Notice through the Closing Date, the Seller will not reject or take 

any action (or fail to take any action that would result in rejection by operation of Applicable Law) 

to reject, withdraw, repudiate or disclaim any Assigned Contract unless (i) Purchaser has provided 

its prior written consent or (ii) Purchaser has removed such Assigned Contract from the list of 

Designated Contracts. 

ARTICLE 6.

PRE-CLOSING COVENANTS

6.1 Conduct of Business. Except (i) as set forth on Schedule 6.1, (ii) as may be 

approved by Purchaser (which approval will not be unreasonably withheld, delayed or conditioned; 

provided, however, that the consent of Purchaser shall be deemed to have been given if Purchaser 

does not object within 48 hours after written request for such consent is provided by the Seller to 

Purchaser), (iii) for actions taken or omitted to be taken by any member of the Seller Group in 

response to any Public Health Measure, or (iv) as is otherwise permitted, contemplated or required 

by this Agreement, any Assigned Contract, by Applicable Laws or by order of the Bankruptcy 

Court, from the Agreement Date through the earlier of the Closing Date or the termination of this 

Agreement in accordance with its terms: 

(a) The Seller Group shall use their commercially reasonable efforts to carry 

on the Business in all material respects in the ordinary course of business as it has been conducted 

since the Petition Date; and 

(b) The Seller shall not, and shall cause its Subsidiaries not to: 

(i) sell, license, abandon or otherwise dispose of any material asset or 

property constituting Transferred Assets other than, in each case, in the ordinary course of 

business or for the purpose of disposing of obsolete or worthless assets; 

(ii) except in the ordinary course of business, acquire by merging or 

consolidating with, or by purchasing a substantial portion of the assets of any business or 

any corporation, partnership or other business organization or otherwise acquire any assets 

(except inventory), that as of the Closing would constitute Transferred Assets, except for 

the acquisition of assets in the ordinary course of business; 

(iii) change its present accounting methods or principles in any 

material respect, except as required by GAAP or Applicable Law; or 

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(iv) make or change any Tax election, change an annual accounting 

period, adopt or change any Tax accounting method, file any amended Tax Return, enter 

into any closing agreement, settle any material Tax claim or assessment or surrender any 

right to claim a refund of Taxes, other than in the ordinary course of business or as required 

by the Code or Applicable Law, and in each case that could have a material effect on the 

amount of Taxes due from the Business or due as a result of the Transferred Assets for a 

taxable period (or portion thereof) beginning after the Closing Date. 

(c) Notwithstanding anything to the contrary, nothing contained in this 

Agreement shall give Purchaser or any of its Affiliates, directly or indirectly, any right to control 

or direct the Business, assets and operations prior to the Closing. Prior to the Closing, the Seller 

shall exercise, consistent with the terms and conditions of this Agreement, complete control and 

supervision over its Business, assets and operations. 

6.2 Access to Information; Confidentiality. 

(a) From the Agreement Date until the earlier of the Closing Date and the 

termination of this Agreement, the Seller shall grant Purchaser and its representatives (at 

Purchaser’s sole cost and expense) reasonable access, during normal business hours and upon 

reasonable notice (and in the event of a facility visit request, at least 48 hours prior notice), and 

subject to any limitations resulting from any Public Health Measures, to the personnel, facilities, 

book and records of the Seller Group related to the Business or the Transferred Assets that are in 

the possession or under the control of the Seller Group; provided, however, that (i) all requests for 

access shall be directed to such other person(s) as the Seller may designate in writing from time to 

time (the “Seller Access Contact”), (ii) such activities do not unreasonably interfere with the 

ongoing business or operations of the Seller Group, (iii) the Seller shall have the right to have one 

or more of its representatives present at all times during any visits, examinations, discussions or 

contacts contemplated by this Section 6.2(a), (iv) Purchaser shall have no right to perform invasive 

or subsurface investigations or conduct any sampling or analysis of environmental media of the 

nature commonly referred to as a “Phase II Environmental Investigation,” such as any soil or 

groundwater testing, (v) such access or related activities would not cause a violation of any 

agreement to which any Seller is a party, (vi) no Personal Information shall be disclosed or used 

other than in compliance with applicable privacy law and (vii) nothing herein shall require any 

member of the Seller Group or their representatives to furnish to Purchaser or provide Purchaser 

with access to information that (A) is subject to an attorney-client or an attorney work-product 

privilege, (B) legal counsel for the Seller Group reasonably concludes may give rise to antitrust or 

competition law issues or violate a protective order or otherwise may not be disclosed pursuant to 

Applicable Law (including any Public Health Measure) or (C) would cause significant competitive 

harm to the Seller Group if the Transactions are not consummated. 

(b) Notwithstanding anything to the contrary contained in this Agreement, from 

the Agreement Date until the Closing Date, Purchaser shall not, and shall cause its representatives 

not to, have any contact or discussions concerning any member of the Seller Group, the Business, 

the Transaction or any other matters with any lender, borrower, creditor, guarantor, business 

partner, bank, landlord, tenant, supplier, customer, employee, manager, franchisee, distributer, 

noteholder, independent contractor, consultant or other material business relation of any Seller, in 

each case, without the prior written consent of the Seller Access Contact (which consent may be 

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withheld in the Seller’s sole discretion and, if given, may be conditioned on the Seller Access 

Contact or his or her designee having the right to participate in any meeting or discussion). 

(c) Any information provided to or obtained by Purchaser or its representatives, 

including pursuant to this Section 6.2 is confidential information and subject to the terms of, and 

the restrictions contained in, the Confidentiality Agreement. Purchaser agrees to be bound by and 

comply with the provisions set forth in the Confidentiality Agreement as if such provisions were 

set forth herein, and such provisions are hereby incorporated herein by reference. Effective upon 

(and only upon) the Closing, the Confidentiality Agreement shall automatically terminate and none 

of the parties thereto shall have any further Liability or obligation thereunder except with respect 

to any confidential information provided to or obtained by Purchaser or its representatives 

concerning the Seller Group, which information shall remain subject to the terms and conditions 

of the Confidentiality Agreement after the Closing Date. If this Agreement is terminated prior to 

Closing for any reason, the duration of the confidentiality of the Confidentiality Agreement shall 

be deemed extended, without any further action by the parties, for a period of time equal to the 

period of time elapsed between the date such Confidentiality Agreement was initially signed and 

the date of termination of this Agreement. 

6.3 Efforts to Consummate. Except as otherwise provided in this Agreement, each of 

the parties hereto agrees to use its commercially reasonable efforts to cause the Closing to occur 

as soon as possible after the Agreement Date, including satisfying the conditions precedent set 

forth in ARTICLE 8 applicable to such party including (a) defending against any Actions, judicial 

or administrative, challenging this Agreement or the consummation of the Transactions, (b) 

seeking to have any preliminary injunction, temporary restraining order, stay or other legal 

restraint or prohibition entered or imposed by any court or other Governmental Authority that is 

not yet final and nonappealable vacated or reversed, and (c) and executing any additional 

instruments reasonably requested by another party hereto (without cost or expense to the executing 

party) necessary to carry out the Transactions and to fully carry out the purposes of this Agreement; 

provided, however, that, for purposes of “commercially reasonable efforts” standard as required 

by this Section 6.3, Section 6.4 or Section 6.5, neither the Seller nor its Affiliates or representatives 

shall be required to offer or grant any accommodation or concession (financial or otherwise) to 

any third party or to otherwise expend any money or suffer any detriment, to expend any money 

to remedy any breach of any representation or warranty hereunder, to commence any Action, to 

waive or surrender any right, to modify any agreement (including any Assigned Contract) or to 

provide financing to Purchaser for the consummation of the Transactions. 

6.4 Notices and Consents. Reasonably promptly following the execution of this 

Agreement, the Seller will give, or cause to be given, applicable notices to third parties and 

thereafter will use commercially reasonable efforts (as limited by Section 6.3) to obtain the thirdparty consents set forth on Schedule 6.4; provided, however, that no representation, warranty, 

covenant or agreement of the Seller shall be breached or deemed breached, and no condition shall 

be deemed not satisfied, as a result of (a) the failure to obtain any such third-party consent, (b) any 

termination of a Contract as a result of the failure to obtain such third-party consent or (c) any 

Action commenced or threatened by or on behalf of any Person arising out of or relating to the 

failure to obtain any such consent or any such termination; provided, further, that nothing in this 

Section 6.4 shall require the Seller to expend any money or grant any concessions to obtain any 

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such third-party consent (unless Purchaser provides the funds for or reimburses the Seller for such 

payment). 

6.5 Regulatory Matters. 

(a) Purchaser and the Seller will establish a mutually acceptable and prompt 

communication and interaction process to ensure the orderly transfer of the NDA for the Product. 

Promptly after Closing, the Parties shall file with the FDA, and any other relevant Governmental 

Authority all information required in order to transfer the NDA from the Seller to Purchaser, 

including the information required pursuant to 21 C.F.R. § 314.72, or any successor regulation 

thereto, any authorization letters or notices, and letters of acceptance. Seller shall file the 

information required of a former owner, and Purchaser shall file the information required of a new 

owner, at each Party’s own expense. Both Purchaser and the Seller also agree to use all 

commercially reasonable efforts to take any actions required by the Governmental Authority or 

other government/health agencies to effect the transfer of the NDAs from the Seller to Purchaser, 

and hereby further agree to cooperate with each other in order to effectuate the foregoing transfer 

of the Product. The Parties agree to use all commercially reasonable efforts to complete the filing 

of the transfer of the NDAs within ten (10) days from the Closing Date. The Seller may retain an 

archival copy of the NDAs, including supplements and records that are required to be kept under 

21 C.F.R. § 314.81. 

(b) From and after the Closing Date until the Seller is dissolved, the Seller shall 

cooperate with Purchaser in preparing, disclosing and providing any relevant records, reports, 

responses or any other documentation that are required to be made, maintained and reported 

pursuant to the Governmental Authority in the Territory. The Parties agree to use their 

commercially reasonable efforts to take any other actions required by the FDA or any other 

Governmental Authority to effect the transaction. 

(c) Until the completion of the transfer of the Product to Purchaser, the Seller 

shall take all reasonably necessary or advisable actions to maintain the relevant NDA. 

6.6 Public Announcements. Between the Agreement Date and the Closing Date, 

except to the extent required by any Applicable Law or Action (including the Bankruptcy Cases), 

neither Purchaser nor the Seller shall, and Purchaser and the Seller shall cause their respective 

Affiliates and representatives not to, directly or indirectly, issue any press release or public 

announcement of any kind without the prior written consent of Purchaser and the Seller; provided, 

however, that the Seller and its Affiliates may make announcements from time to time to their 

respective employees, customers, suppliers, and other business relations and otherwise as the 

Seller may reasonably determine is necessary to comply with Applicable Law or the requirements 

of this Agreement or any other agreement to which any Seller or any such Affiliate is a party. 

Purchaser and the Seller shall cooperate in good faith to prepare a joint press release to be issued 

on the Closing Date, the terms of which shall be mutually agreed upon by the parties. 

6.7 Update of Schedules; Knowledge of Breach. From time to time prior to the 

Closing, the Seller may supplement or amend the Schedules with respect to any matter first arising 

after the Agreement Date that would have been required to be set forth or described in such 

Schedules. Any such supplemental or amended disclosure shall not be deemed to have cured any 

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such breach of representation or warranty for purposes of determining whether or not the 

conditions set forth in Section 8.2(a) have been satisfied. From and after the Closing, references 

to the Schedules shall be references to the Schedules as supplemented, modified and/or updated. 

If, prior to the Closing, Purchaser shall have reason to believe that any breach of a representation 

or warranty of the Seller has occurred (other than through notice from the Seller), Purchaser shall 

promptly so notify the Seller, in reasonable detail. Nothing in this Agreement, including this 

Section 6.7, shall imply that the Seller is making any representation or warranty as of any date 

other than the Closing Date (other than representations and warranties that are expressly made as 

of an earlier date). 

ARTICLE 7.

POST-CLOSING COVENANTS 

7.1 Access to Information; Books and Records. From and after the Closing, and 

without prejudice to the obligations of Purchaser pursuant to Section 7.3(g), Purchaser and its 

Affiliates shall (i) afford the Seller Group and their respective representatives reasonable access, 

during normal business hours, upon reasonable advance notice and under reasonable 

circumstances, to the books and records of Purchaser and the Business shall permit the Seller 

Group and their respective representatives to examine and copy such books and records to the 

extent reasonably requested by such party and (ii) cause their representatives to furnish all 

information reasonably requested by any member of the Seller Group or their representatives in 

connection with financial or regulatory reporting, audit, third party litigation, preparing or filing 

of any Tax Return or the defense of any Tax claim or assessment or any other business purpose; 

provided, however, that nothing in this Section 7.1 shall require Purchaser or its Affiliates to 

furnish to the Seller Group or their respective representatives any material that is subject to an 

attorney-client or solicitor-client privilege or an attorney or solicitor work-product privilege or 

which may not be disclosed pursuant to Applicable Law. For a period of six (6) years following 

the Closing Date, or such longer period as may be required by Applicable Law or necessitated by 

applicable statutes of limitations, Purchaser shall, and shall cause its Affiliates to, maintain all such 

books and records in the jurisdiction in which such books and records were located prior to the 

Closing Date and shall not destroy, alter or otherwise dispose of any such books and records. On 

and after the end of such period, Purchaser shall, and shall cause its Affiliates to, provide the Seller 

with at least ten Business Days prior written notice before destroying, altering or otherwise 

disposing any such books and records, during which period the Seller may elect to take possession, 

at its own expense, of such books and records. 

7.2 Post-Closing Receipt and Possession of Assets. 

(a) After the Closing Date, the Seller shall transfer promptly to Purchaser from 

time to time (but in any event on a monthly basis) any payments constituting Transferred Assets 

received by the Seller. After the Closing Date, Purchaser shall transfer promptly to the Seller, from 

time to time (but in any event on a monthly basis), any payments constituting Excluded Assets, 

including any accounts receivable constituting Excluded Assets, received by Purchaser after the 

Closing. 

(b) In the event that, after the Closing Date, Purchaser receives or otherwise is 

in possession of any other Excluded Asset, Purchaser shall promptly notify the Seller of its receipt 

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or possession of such other Excluded Asset and transfer, at the Seller’s expense, such Excluded 

Asset to the Seller. In the event that, after the Closing Date, the Seller receives or otherwise is in 

possession of any other Transferred Asset, the Seller shall promptly notify Purchaser of its receipt 

or possession of such other Transferred Asset and transfer, at Purchaser’s expense (unless the 

Seller was required to transfer such Transferred Asset to Purchaser at Closing, in which case, and 

without limitation of any other remedies available to Purchaser, such transfer will be at the Seller’s 

expense), such Transferred Asset to Purchaser. 

7.3 Tax Matters. 

(a) The Seller shall be responsible for preparing or causing to be prepared all 

Asset Tax Returns for itself for the Pre-Closing Tax Period that are required to be filed after the 

Closing. After the Closing, Purchaser will assist and cooperate with the Seller in preparing such 

Asset Tax Returns. The Seller shall provide Purchaser with completed drafts of such Asset Tax 

Returns for Purchaser’s review and reasonable comment at least thirty days prior to the due date 

for the filing thereof, taking into account extensions (or, if such due date is within thirty days 

following the Closing Date, as promptly as practicable following the Closing Date) and shall make 

such revisions to such Asset Tax Returns as are reasonably requested by Purchaser; provided, that 

Purchaser’s requests are consistent with the prior practice of the Seller (to the extent relevant) and 

comply with Applicable Law. Purchaser shall cause all such Asset Tax Returns received from the 

Seller to be duly executed (as may be required) and timely filed (taking into account all extensions 

properly obtained). 

(b) Purchaser shall prepare and timely file or cause to be prepared and timely 

filed (taking into account all extensions properly obtained) all Tax Returns that are required to be 

filed for any taxable period that begins on or before the Closing Date and ends after the Closing 

Date (a “Straddle Period”) and shall timely pay (subject to Purchaser’s right to reimbursement of 

Seller Taxes), or cause to be timely paid, the amount of any Taxes due thereon. Purchaser shall 

prepare such Tax Returns in a manner consistent with past practice to the extent relevant and 

consistent with Applicable Law and shall provide the Seller with completed drafts of such Tax 

Returns for the Seller’s review and reasonable comment at least thirty days prior to the due date 

for filing thereof, taking into account extensions (or, if such due date is within thirty days following 

the Closing Date, as promptly as practicable following the Closing Date) and shall make such 

revisions to such Tax Returns as are reasonably requested by the Seller, provided such requests 

are consistent with the prior practice of the Seller (to the extent relevant) and comply with 

Applicable Law. 

(c) The Seller shall be liable for, and shall indemnify and hold Purchaser 

harmless against, any Asset Taxes with respect to a Pre-Closing Tax Period and the portion of any 

Straddle Period ending on the Closing Date (“Seller Taxes”). For purposes of this Agreement, in 

the case of any Straddle Period, (a) the amount of any Asset Taxes based on or measured by income 

or receipts, sales or use, employment, or withholding allocated to the portion of such Straddle 

Period ending on the Closing Date shall be determined based on an interim closing of the books 

as of the end of the day on the Closing Date and (b) any other Asset Taxes shall be allocated to the 

portion of such Straddle Period ending on the Closing Date by prorating the amount of such Tax 

for the entire premium or taxable period per diem. 

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(d) Purchaser and its Affiliates shall not make or change any Tax election, 

amend, refile or otherwise modify (or grant an extension of any statute of limitation with respect 

to) any Asset Tax Return. 

(e) Purchaser shall promptly notify the Seller in writing upon receipt by 

Purchaser or any of its Affiliates of notice of any pending or threatened federal, state, local or 

foreign Tax audits, proceedings or assessments relating to Pre-Closing Tax Period, Straddle Period 

or otherwise relating to a Tax for which the Seller may be liable, in each case, solely with respect 

to Seller Group Taxes or any Asset Taxes (a “Seller Tax Claim”). 

(f) The Seller shall have the sole right to control the defense or resolution of 

any Seller Tax Claim, and to employ counsel of its choice at the Seller’s expense; provided, 

however, that Purchaser and its representatives shall be permitted, at their expense, to observe and 

participate in any defense or resolution of such Seller Tax Claim. Neither Purchaser nor any of its 

Affiliates shall be entitled to settle, either administratively or after the commencement of litigation, 

any Seller Tax Claim without the prior written consent of the Seller, which shall not be 

unreasonably conditioned, denied or delayed. Notwithstanding anything herein to the contrary, 

Purchaser shall be entitled to deduct and withhold from the consideration otherwise payable 

pursuant to this Agreement to any Person such amounts as are required to be deducted and withheld 

under the Code or applicable Tax law. To the extent that amounts are so deducted or withheld and 

remitted to the applicable Tax authority, such withheld amounts shall be treated for all purposes 

of this Agreement as having been paid to such Person in respect of which such deduction or 

withholding was made. Purchaser shall use commercially reasonable efforts to notify the Seller at 

least five (5) Business Days prior to the Closing if any payment would be subject to deduction or 

withholding for Taxes and reasonable cooperate with the Seller to reduce or eliminate such 

withholding in a manner consistent with Applicable Law. 

(g) After the Closing, each of the Seller and Purchaser shall (and shall cause 

their respective Affiliates to): 

(i) timely sign and deliver such certificates or forms as may be 

necessary or appropriate to establish an exemption from (or otherwise reduce), or file Tax 

Returns or other reports with respect to, Transfer Taxes; 

(ii) cooperate fully in preparing for and defending any audits or 

proceedings of or disputes with Governmental Authorities regarding any Tax Returns 

required to be filed by, or Taxes related to the Transferred Assets due from, the Seller for 

any Pre-Closing Tax Period or Straddle Period; 

(iii) maintain and preserve until the expiration of the applicable statutes 

of limitations, and make available to the other parties as reasonably requested and to any 

Governmental Authority as reasonably required, all information, records and documents 

relating to Taxes related to the Transferred Assets for any Pre-Closing Tax Period or 

Straddle Period, and make employees available to the other parties as reasonably requested 

during business hours to supplement or explain such information, records and documents; 

and 

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(iv) furnish the other parties with copies of all correspondence received 

from any Governmental Authority in connection with any Tax audit, proceeding, 

assessment or information request relating to Taxes related to the Transferred Assets for a 

Pre-Closing Tax Period or Straddle Period, and furnish the other parties with copies of all 

records and documents relating to Taxes related to the Transferred Assets for a Pre-Closing 

Tax Period or Straddle Period that are proposed to be destroyed (and not otherwise in the 

possession of such other party). 

(h) Purchaser shall pay, or cause to be paid, to the Seller the amount of any 

refunds of Taxes related to the Transferred Assets from a Pre-Closing Tax Period or the portion of 

a Straddle Period ending on the Closing Date to the Seller within five days of receipt of the refund 

in cash (or through offset against other cash Taxes payable).

ARTICLE 8.

CONDITIONS PRECEDENT 

8.1 Conditions to Each Party’s Obligation. The respective obligations of the parties 

hereto to effect the Transactions are subject to the satisfaction (or, to the extent permitted by 

Applicable Law, waiver by the Seller and Purchaser), at or prior to the Closing, of the following 

conditions: 

(a) No Injunctions or Restraints. No Order or Applicable Law preventing the 

consummation of the Transactions shall be in effect. 

(b) Sale Order. The Bankruptcy Court shall have entered the Sale Order and 

such Sale Order shall be a Final Order (unless such Final Order requirement is waived by the Seller 

and Purchaser in their respective sole discretion). 

8.2 Conditions to Obligation of Purchaser. The obligations of Purchaser to effect the 

Transactions is subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver 

by Purchaser), at or prior to the Closing, of the following conditions: 

(a) Representations and Warranties. Each of the representations and warranties 

of the Seller set forth in ARTICLE 3 shall be true and correct in all respects (without giving effect 

to any qualifications or limitations as to “materiality”, “Material Adverse Effect” or words of 

similar import set forth therein) as of the Closing as though made at and as of such time (other 

than such representations and warranties as are made as of an earlier date, which shall be so true 

and correct as of such date), except where the failure of such representations and warranties to be 

so true and correct would not have, individually or in the aggregate, a Material Adverse Effect. 

(b) Performance of Covenants and Obligations. The Seller shall have 

performed or complied in all material respects with all obligations and covenants required to have 

been performed or complied with by it under this Agreement at or prior to the Closing, except to 

the extent of changes or developments contemplated by the terms of this Agreement or caused by 

the Transactions. 

(c) Closing Deliverables. The Seller shall have delivered to Purchaser the 

closing deliveries required to be delivered by the Seller pursuant to Section 2.8(a), Section 2.8(b) 

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and Section 2.8(f). The Escrow Agent shall have delivered its duly executed signature page of the 

Escrow Agreement to Purchaser pursuant to Section 2.8(b). 

8.3 Conditions to Obligations of the Seller. The obligation of the Seller to effect the 

Transactions is subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver 

by the Seller), at or prior to the Closing, of the following conditions: 

(a) Representations and Warranties. Each of the representations and warranties 

of Purchaser set forth in ARTICLE 4 shall be true and correct in all respects (without giving effect 

to any qualifications or limitations as to “materiality” or words of similar import set forth therein) 

as of the Closing as though made at and as of such time (other than such representations and 

warranties as are made as of an earlier date, which shall be so true and correct as of such date), 

except where the failure of such representations and warranties to be so true and correct would 

not, individually or in the aggregate, (i) have a material adverse effect on the ability of Purchaser 

to perform its obligations under this Agreement or (ii) otherwise prevent, hinder or delay the 

consummation of the Transactions. 

(b) Performance of Covenants and Obligations of Purchaser. Purchaser shall 

have performed or complied in all material respects with all obligations and covenants required to 

have been performed or complied with by it under this Agreement at or prior to the Closing, except 

to the extent of changes or developments contemplated by the terms of this Agreement or caused 

by the Transactions. 

(c) Closing Deliverables. Purchaser shall have delivered to the Seller the 

closing deliveries required to be delivered by Purchaser pursuant to Section 2.8(a), Section 2.8(b) 

and Section 2.8(e). The Escrow Agent shall have delivered its duly executed signature page of the 

Escrow Agreement to the Seller pursuant to Section 2.8(b). 

8.4 Waiver of Condition; Frustration of Conditions. All conditions to the Closing 

shall be deemed to have been satisfied or waived from and after the Closing. Neither Purchaser 

nor the Seller may rely on the failure of any condition set forth in this ARTICLE 8, as applicable, 

to be satisfied if such failure was caused by such party’s failure to use, as required by this 

Agreement, its reasonable best efforts to consummate the Transactions. 

8.5 Delivery of a Notice of Readiness to Close. At any time after the Seller’s 

satisfaction of its conditions to Closing in accordance with the terms of Section 8.1 and Section 8.3 

of this Agreement, the Seller may deliver a notice to the Purchaser (a “Notice of Readiness to 

Close”). The Purchaser shall have three (3) Business Days from delivery of a Notice of Readiness 

to Close to satisfy its conditions to Closing in accordance with the terms of Section 8.1 and 

Section 8.2 of this Agreement and consummate the Transactions. If Purchaser does not satisfy its 

conditions to Closing and consummate the Transaction within three (3) Business Days, Purchaser 

shall forfeit the entire Deposit Escrow Amount to the Seller. 

ARTICLE 9.

TERMINATION 

9.1 Events of Termination. Notwithstanding anything to the contrary, this Agreement 

may be terminated and the Transactions may be abandoned at any time prior to the Closing: 

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(a) by mutual written consent of Purchaser and the Seller; 

(b) automatically, upon (i) the consummation of a sale or other disposition of 

all or substantially all of the Transferred Assets to a Person other than Purchaser (each, 

an “Alternate Transaction”), (ii) if, at close of the Auction, Purchaser’s bid has not been selected 

as either the winning bid or the Back-Up Bid or (iii) if, at the close of the Auction, Purchaser’s bid 

was selected as the Back-Up Bid, upon the consummation of a Competing Bid or Alternative 

Transaction; 

(c) by Purchaser or the Seller by written notice to Purchaser or the Seller from 

the other, if the Bankruptcy Case is dismissed or converted to a case under chapter 7 of the 

Bankruptcy Code; 

(d) by Purchaser or the Seller by written notice to Purchaser or the Seller from 

the other, if Purchaser is not selected as having the winning bid or Back-Up Bid at Auction, if any; 

(e) by Purchaser if the Seller (i) withdraws the motion for the Sale Order, or 

publicly announces its intention to withdraw such motion, (ii) moves to voluntarily dismiss the 

Bankruptcy Cases, (iii) moves for conversion of the Bankruptcy Cases to Chapter 7 of the 

Bankruptcy Code, or (iv) moves for appointment of an examiner with expanded powers pursuant 

to Section 1104 of the Bankruptcy Code or a trustee in the Bankruptcy Cases; 

(f) by Purchaser, by written notice from Purchaser to the Seller, if there has 

been a breach or inaccuracy of a covenant, representation or warranty made by the Seller in this 

Agreement, such that the conditions in Section 8.1 or Section 8.2 are not capable of being satisfied 

and which breach is incapable of being cured or, if capable of being cured, has not been cured by 

the Seller prior to the earlier of (i) 20 Business Days after receipt of written notice from Purchaser 

requesting such breach be cured or (ii) the Outside Date; provided, however, that the right to 

terminate this Agreement pursuant to this Section 9.1(f) shall not be available to Purchaser if the 

failure of Purchaser to fulfill any of its obligations under this Agreement has been the primary 

cause of, or resulted in, such breach, or if the conditions in Section 8.1 or Section 8.3 are not 

capable of being satisfied because there is then a breach or inaccuracy of a covenant, representation 

or warranty made by Purchaser in this Agreement; 

(g) by the Seller, by written notice from the Seller to Purchaser, if there has 

been a breach or inaccuracy of a covenant, representation or warranty made by Purchaser in this 

Agreement, such that the conditions in Section 8.1 or Section 8.3 are not capable of being satisfied 

and which breach is incapable of being cured or, if capable of being cured, has not been cured by 

Purchaser prior to the earlier of (i) 20 Business Days after receipt of written notice from the Seller 

requesting such breach be cured or (ii) the Outside Date; provided, however, that the right to 

terminate this Agreement pursuant to this Section 9.1(g) shall not be available to the Seller if the 

failure of the Seller to fulfill any of its obligations under this Agreement has been the primary 

cause of, or resulted in, such breach, or if the conditions in Section 8.1 or Section 8.3 are not 

capable of being satisfied because there is then a breach or inaccuracy of a covenant, representation 

or warranty made by the Seller in this Agreement; 

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(h) by Purchaser or the Seller, by written notice from Purchaser or the Seller to 

the other, if any Governmental Authority of competent jurisdiction shall have issued an Order, 

enacted any Applicable Law or taken any other action restraining, enjoining or otherwise 

prohibiting the consummation of the Transactions and, in the case of Orders and other actions, 

such Order or other action shall have become Final Orders; provided, however, that the right to 

terminate this Agreement pursuant to this Section 9.1(h) shall not be available to the party seeking 

to terminate if any action of such party or any failure of such party to act has contributed to such 

Order or other action and such action or failure constitutes a breach of this Agreement; or 

(i) by Purchaser or the Seller, by written notice from Purchaser or the Seller to 

the other, if the Closing has not occurred on or prior to March 13, 2023 (the “Outside Date”); 

provided, however, that the party exercising the right to terminate this Agreement pursuant to this 

Section 9.1(i) shall not have been responsible for such failure of the Closing to occur through a 

breach or inaccuracy of a covenant, representation or warranty contained in this Agreement. 

(j) by Purchaser by written notice to the Seller if the Bankruptcy Court does 

not approve the Bid Procedures Order without any material modifications (other than such 

modifications reasonably acceptable to Purchaser) to the protections to Purchaser set forth in 

Section 9.3(a) and Section 9.3(b). 

9.2 Effect of Termination. 

(a) In the event that this Agreement shall be terminated pursuant to Section 9.1, 

(a) Purchaser and its representatives shall promptly return all documents, work papers and other 

materials of the Seller including any confidential information and (b) all further obligations of the 

parties hereto under this Agreement shall terminate without further Liability or obligation to the 

other parties hereto; provided, however, that, notwithstanding the foregoing, the Liabilities and 

obligations under (i) the Confidentiality Agreement, and (ii) Section 2.9(c), Section 6.2(c), this 

Section 9.2 and ARTICLE 10 shall continue in full force and effect. 

(b) Notwithstanding anything to the contrary in this Agreement, in the event of 

valid termination of this Agreement pursuant to Section 9.1, (i) the Seller’s Liability hereunder for 

any and all breaches of this Agreement prior to such termination of this Agreement shall be capped 

at an amount equal to the Deposit Escrow Amount, and (ii) no such termination shall relieve 

Purchaser from any Liability hereunder for any and all breaches of this Agreement prior to such 

termination of this Agreement (including if this Agreement is terminated by the Seller pursuant to 

Section 9.1(g)) and the Seller shall be entitled to all remedies available at law or in equity, 

including payment of the Deposit Escrow Amount pursuant to Section 2.9(c). 

9.3 Termination Fee and Expense Reimbursement. 

(a) Subject to limitations set forth in the Bid Procedures Order, in consideration 

of Purchaser having expended considerable time and expense in connection with this Agreement 

and the negotiation thereof, and the identification and quantification of assets to be included in the 

Transferred Assets, and to compensate Purchaser as a stalking-horse bidder, the Seller shall pay in 

cash to Purchaser, by wire transfer of immediately available funds to the account specified by 

Purchaser to the Seller in writing, an amount equal to the Termination Fee in the event that this 

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Agreement is terminated pursuant to Section 9.1(b), in which case the Termination Fee shall be 

due and payable simultaneously with any termination of this Agreement; provided, that, Purchaser 

shall not be entitled to the fee described in this Section 9.3(a) to the extent Purchaser is in material 

breach of this Agreement at the time this Agreement is terminated pursuant to Section 9.1(b) if 

Seller has provided notice of such material breach to Purchaser and such material breach has 

remained uncured for more than five (5) Business Days after Purchaser’s receipt of such notice. 

The Termination Fee shall be payable solely from the proceeds of such Competing Bid or 

Alternative Transaction. The Seller’s obligation to pay the Termination Fee pursuant to this 

Section 9.3(a) shall survive termination of this Agreement and shall constitute an administrative 

expense of the Seller under section 364(c)(1) of the Bankruptcy Code with priority over any and 

all administrative expenses of the kind specified in section 503(b) or 507(b) of the Bankruptcy 

Code.

(b) Subject to limitations set forth in the Bid Procedures Order, in 

consideration of Purchaser having expended considerable time and expense in connection with 

this Agreement and the negotiation thereof, and the identification and quantification of assets to 

be included in the Transferred Assets, if this Agreement is terminated in accordance with the terms 

set forth in Section 9.1(b), then the Seller shall pay to Purchaser in cash not later than two Business 

Days following receipt of documentation supporting the request for reimbursement of costs, fees 

and expenses, the Expense Reimbursement, in an amount not to exceed $300,000, by wire transfer 

of immediately available funds to an account specified by Purchaser to the Seller in writing; 

provided, that, Purchaser shall not be entitled to the fee described in this Section 9.3(a) to the extent 

Purchaser is in material breach of this Agreement at the time this Agreement is terminated pursuant 

to Section 9.1(b) if Seller has provided notice of such material breach to Purchaser and such 

material breach has remained uncured for more than five (5) Business Days after Purchaser’s 

receipt of such notice. The Expense Reimbursement shall be payable solely from the proceeds of 

such Competing Bid or Alternative Transaction. The Seller’s obligation to pay the Expense 

Reimbursement pursuant to this Section 9.3(b)9.3(b) shall survive termination of this Agreement 

and shall constitute an administrative expense of Seller under section 364(c)(1) of the Bankruptcy 

Code with priority over any and all administrative expenses of the kind specified in section 503(b) 

or 507(b) of the Bankruptcy Code.

(c) The Seller agrees and acknowledges that Purchaser’s due diligence, efforts, 

negotiation, and execution of this Agreement have involved substantial investment of management 

time and have required significant commitment of financial, legal, and other resources by 

Purchaser, and that such due diligence, efforts, negotiation, and execution have provided value to 

the Seller and, in the Seller’s reasonable business judgment, is necessary for the preservation of 

the value of the Seller’s estate. The Seller further agrees and acknowledges that the Termination 

Fee and the Expense Reimbursement are not a penalty, but rather represent liquidated damages 

that are reasonable in relation to Purchaser’s efforts, Purchaser’s lost opportunities from pursuing 

the Transactions, and the magnitude of the Transactions. The provision of the Termination Fee 

and the Expense Reimbursement is an integral part of this Agreement, without which the Purchaser 

would not have entered into this Agreement. 

ARTICLE 10.

GENERAL PROVISIONS 

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10.1 Survival of Representations, Warranties and Covenants. All covenants and 

agreements contained in this Agreement that by their term are to be performed in whole or in part, 

or which prohibit actions, subsequent to Closing shall, solely to the extent such covenants and 

agreements are to be performed, or prohibit actions, subsequent to Closing, survive the Closing in 

accordance with their terms until fully performed or satisfied. All other covenants and agreements 

contained herein, and all representations and warranties contained herein or in any certificated 

deliveries hereunder shall not survive Closing and shall therefor terminate, including any Action 

for damages in respect of any breach or inaccuracy thereof. Notwithstanding the foregoing, the 

provisions of Section 2.9(c), Section 6.2, Section 9.2, this Article 10 and the Confidentiality 

Agreement shall survive the Closing. 

10.2 Entire Agreement. This Agreement, including the Exhibits and Schedules hereto, 

the Confidentiality Agreement and the Related Documents, contain the entire understanding of the 

parties hereto with respect to the subject matter contained herein and therein. This Agreement 

supersedes all prior and contemporaneous agreements, arrangements, contracts, discussions, 

negotiations, undertakings and understandings (including any letters of intent or term sheets), 

whether written or oral, among the parties with respect to such subject matter (other than, for the 

avoidance of doubt, the Confidentiality Agreement and the Related Documents) or any prior 

course of dealings. The parties hereto have voluntarily agreed to define their rights, Liabilities and 

obligations respecting the Transactions exclusively in contract pursuant to the express terms and 

conditions of this Agreement, the Confidentiality Agreement and the Related Documents, and the 

parties hereto expressly disclaim that they are owed any duties or entitled to any remedies not 

expressly set forth in this Agreement, the Confidentiality Agreement and the Related Documents. 

Furthermore, the parties each hereby acknowledge that this Agreement, the Confidentiality 

Agreement and the Related Documents embody the justifiable expectations of sophisticated parties 

derived from arm’s-length negotiations, and all parties to this Agreement, the Confidentiality 

Agreement and the Related Documents specifically acknowledge that no party has any special 

relationship with another party that would justify any expectation beyond that of an ordinary 

purchaser and an ordinary seller in an arm’s-length transaction. The sole and exclusive remedies 

for any Related Claims shall be those remedies available at law or in equity for breach of contract 

only (as such contractual remedies have been further limited or excluded pursuant to the express 

terms of this Agreement); and the parties hereby agree that neither party hereto shall have any 

remedies or cause of action (whether in contract or in tort or otherwise) of any statements, 

communications, disclosures, failures to disclose, representations or warranties not set forth in this 

Agreement. 

10.3 Amendment; No Waiver. This Agreement and the Related Documents may be 

amended, supplemented or changed, and any provision hereof or thereof can be waived, only by a 

written instrument making specific reference to this Agreement (and, if applicable, the Related 

Documents) executed by the party against whom enforcement of any such amendment, 

supplement, modification or waiver is sought. The waiver by any party of a breach of any provision 

of this Agreement or the Related Documents shall not operate or be construed as a further or 

continuing waiver of such breach or as a waiver of any other or subsequent breach. No failure on 

the part of any party to exercise, and no delay in exercising any right, power or remedy hereunder 

shall operate as a waiver thereof, nor shall a single or partial exercise of such right, power or 

remedy by such party preclude any other or further exercise thereof or the exercise of any other 

right, power or remedy. 

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10.4 Severability; Specific Versus General Provisions. Whenever possible, each 

provision of this Agreement and the Related Documents shall be interpreted in such manner as to 

be effective and valid under Applicable Law, but if any term or other provision of this Agreement 

or the Related Documents is invalid, illegal, or incapable of being enforced by any Applicable Law 

or public policy, all other terms or provisions of this Agreement and the Related Documents shall 

nevertheless remain in full force and effect so long as the economic or legal substance of the 

Transactions is not affected in any manner materially adverse to any party. Upon such 

determination that any term or other provision is invalid, illegal, or incapable of being enforced, 

in whole or in part, such term or provision is hereby deemed modified to give effect to the original 

written intent of the parties to the greatest extent consistent with being valid and enforceable under 

Applicable Law. No party hereto shall assert, and each party shall cause its respective Affiliates 

or related parties not to assert, that this Agreement or any part hereof is invalid, illegal or 

unenforceable. Notwithstanding anything to the contrary, to the extent that a representation, 

warranty, covenant or agreement of the Seller contained in this Agreement or the Schedules (each, 

a “Provision”) addresses a particular issue with specificity (a “Specific Provision”), and no breach 

by the Seller exists under such Specific Provision, the Seller shall not be deemed to be in breach 

of any other Provision (with respect to such issue) that addresses such issue with less specificity 

than the Specific Provision, and if such Specific Provision is qualified or limited by the Seller’s 

Knowledge, or in any other manner, no other Provision shall supersede or limit such qualification 

in any manner. 

10.5 Expenses and Obligations. Except as otherwise provided in this Agreement, all 

costs and expenses incurred by the parties hereto in connection with the Transactions, including 

the costs, expenses and disbursements of counsel and accountants, shall be borne solely and 

entirely by the party that has incurred such expenses; provided, however, that Purchaser shall pay, 

or promptly reimburse the Seller for, any filing fees which relate to any required governmental 

filing or notification and Purchaser shall pay any Transfer Taxes. 

10.6 Notices. All notices, consents, waivers, and other communications under this 

Agreement or the Related Documents must be in writing and will be deemed to have been duly 

given (a) if personally delivered, on the date of delivery, (b) if delivered by express courier service 

of national standing for next day delivery (with charges prepaid), on the Business Day following 

the date of delivery to such courier service, (c) if delivered by electronic mail (unless the sender 

receives an automated message that the email has not been delivered) on the date of transmission 

if on a Business Day before 5:00 p.m. local time of the business address of the recipient party 

(otherwise on the next succeeding Business Day) and (d) if deposited in the United States mail, 

first-class postage prepaid, on the date of delivery, in each case to the appropriate addresses or 

email addresses set forth below (or to such other addresses as a party may designate by notice to 

the other parties in accordance with this Section 10.6): 

If to Purchaser: 

JN Bidco LLC 

c/o Honigman LLP 

660 Woodward Ave #2290 

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Detroit, MI 48226 

Attention: Nick Gorga; Nicholas Pedersen; Scott Kitei 

Email: ngorga@honigman.com; npedersen@honigman.com; 

skitei@honigman.com 

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

Honigman LLP 

660 Woodward Ave #2290 

Detroit, MI 48226 

Attention: Nick Gorga; Nicholas Pedersen; Scott Kitei 

Email: ngorga@honigman.com; npedersen@honigman.com; 

skitei@honigman.com 

If to the Seller: 

Impel Pharmaceuticals Inc. 

201 Elliott Avenue West 

Suite 260 

Seattle, WA 98101 

Attention: Len Paolillo 

Email: lpaolillo@impelpharma.com 

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

Fenwick & West LLP 

401 Union Street 

5th Floor 

Seattle, WA 98101 

Attention: Alan Smith; Ethan Skerry 

Email: acsmith@fenwick.com; eskerry@fenwick.com 

and 

Sidley Austin LLP 

2021 McKinney Ave. 

Suite 2000 

Dallas, TX 75201 

Attention: Rakhee Patel 

 Samuel Newman 

Jeri Leigh Miller 

Email: rpatel@sidley.com 

sam.newman@sidley.com 

jeri.miller@sidley.com 

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10.7 Counterparts. This Agreement may be executed in two or more counterparts (any 

of which may be delivered by electronic transmission), each of which shall constitute an original, 

and all of which taken together shall constitute one and the same instrument. The exchange of a 

fully executed Agreement (in counterparts or otherwise) by electronic transmission in .PDF 

format, or other agreed format shall be sufficient to bind the parties to the terms and conditions of 

this Agreement. Minor variations in the form of the signature page, including footers from earlier 

versions of this Agreement or any Related Document, shall be disregarded in determining the 

party’s intent or the effectiveness of such signature. 

10.8 Governing Law. This Agreement, the Related Documents and all Related Claims 

shall be governed by the internal laws of the State of Delaware (including its statute of limitations), 

without giving effect to any choice or conflict of law principles or rules that would cause the 

application of the Applicable Laws of any other jurisdiction. 

10.9 Submission to Jurisdiction; Consent to Service of Process. 

(a) Without limiting any party’s right to appeal any Order of the 

Bankruptcy Court, (i) the Bankruptcy Court shall retain exclusive jurisdiction to interpret and/or 

enforce the terms of this Agreement and to decide any claims or disputes which may arise or result 

from, or be connected with, this Agreement, any Related Document, any breach or default 

hereunder or thereunder, or the Transactions, and (ii) any and all proceedings related to the 

foregoing shall be filed and maintained only in the Bankruptcy Court, and the parties hereby 

consent to and submit to the jurisdiction and venue of the Bankruptcy Court and shall receive 

notices at such locations as indicated in Section 10.6; provided, however, that if the Bankruptcy 

Cases have closed, the parties agree to irrevocably submit to the exclusive jurisdiction of the of 

the Court of Chancery of the State of Delaware or, to the extent the Court of Chancery of the State 

of Delaware does not have subject matter jurisdiction, the federal courts of the United States of 

America and the courts of the State of Delaware, in each case, located within the City of 

Wilmington in the State of Delaware over all Related Claims, and each party hereto hereby 

irrevocably agrees that all Related Claims may be heard and determined in such courts. The parties 

hereto hereby irrevocably and unconditionally waive, to the fullest extent permitted by Applicable 

Law, any objection which they may now or hereafter have to the laying of venue of any such 

Related Claim brought in such court or any defense of inconvenient forum for the maintenance of 

such dispute. Each of the parties hereto agrees that a judgment in any such dispute may be enforced 

in other jurisdictions by suit on the judgment or in any other manner provided by Applicable Law. 

(b) Each of the parties hereto hereby consents to process being served 

by any party to this Agreement in any Related Claim by the delivery of a copy thereof in 

accordance with the provisions of Section 10.6 (other than by email) along with a notification that 

service of process is being served in conformance with this Section 10.9(b). Nothing in this 

Agreement will affect the right of any party to serve process in any other manner permitted by 

Applicable Law.

10.10 Waiver of Jury Trial. EACH PARTY HERETO ACKNOWLEDGES AND 

AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT, 

THE RELATED DOCUMENTS OR ANY RELATED CLAIMS IS LIKELY TO INVOLVE 

COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY 

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IRREVOCABLY AND UNCONDITIONALLY EXPRESSLY WAIVES ANY RIGHT IT MAY 

HAVE TO A TRIAL BY JURY IN RESPECT OF ANY PROCEEDING OR RELATED CLAIM 

BROUGHT BY OR AGAINST IT, DIRECTLY OR INDIRECTLY ARISING OUT OF OR 

RELATING TO THIS AGREEMENT, THE RELATED DOCUMENTS OR ANY RELATED 

CLAIMS. 

10.11 Rights Cumulative. All rights and remedies of each of the parties under this 

Agreement and the Related Documents will be cumulative, and the exercise of one or more rights 

or remedies will not preclude the exercise of any other right or remedy available under this 

Agreement, the Related Documents or Applicable Law. 

10.12 Assignment. Except as otherwise provided herein, the provisions hereof shall inure 

to the benefit of, and be binding upon, the successors by operation of law and permitted assigns of 

the parties hereto. No assignment of this Agreement or any of the rights, interests or obligations 

under this Agreement may be made by any party hereto at any time, whether or not by operation 

of law, without the prior written consent of the Seller and Purchaser, and any attempted assignment 

without the required consent shall be void; provided, however, that (a) Purchaser may assign (i) 

any of its rights or delegate any of its duties under this Agreement to any of its Affiliates, and (ii) 

its rights, but not its duties, under this Agreement to any of its financing sources and (b), the Seller 

may assign any of its rights or delegate any of its duties under this Agreement (i) to any of its 

Affiliates, (ii) to any creditor or group of creditors pursuant to an order of the Bankruptcy Court 

entered in the Bankruptcy Cases, including Seller’s rights to payment hereunder and rights and 

ability to enforce the terms of this Agreement and (iii) for collateral security purposes to any lender 

of the Seller or its Affiliates; provided, further, however, that, in each case, such assignment shall 

not release Purchaser from its obligations under this Agreement and the Seller shall have no 

obligation to pursue remedies against any assignee of Purchaser before proceeding against 

Purchaser for any breach of Purchaser’s obligations hereunder. 

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10.13 Specific Enforcement; Remedies. The parties hereto agree that irreparable 

damage (for which monetary relief, even if available, would not be an adequate remedy) would 

occur in the event that any of the provisions of this Agreement were not performed by the parties 

hereto in accordance with their specific terms or were otherwise breached. It is accordingly agreed 

that (i) Purchaser, on the one hand, and the Seller, on the other hand, shall be entitled to an 

injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the 

terms and provisions hereof in any court of competent jurisdiction without proof of damages or 

otherwise and that this shall include the right of the Seller to cause Purchaser to fully perform the 

terms of this Agreement to the fullest extent permissible pursuant to this Agreement and 

Applicable Laws and to thereafter cause this Agreement and the Transactions to be consummated 

on the terms and subject to the conditions thereto set forth in this Agreement, and (ii) the right of 

specific performance and other equitable relief is an integral part of the Transactions and without 

that right, neither the Seller nor Purchaser would have entered into this Agreement. Remedies shall 

be cumulative and not exclusive and shall be in addition to any other remedies which any party 

may have under this Agreement. Each of the parties hereto hereby (A) waives any defenses in any 

action for specific performance, including the defense that a remedy at law would be adequate, 

(B) waives any requirement under any Applicable Law to post a bond or other security as a 

prerequisite to obtaining equitable relief and (C) agrees not to assert that a remedy of specific 

performance or other equitable relief is unenforceable, invalid, contrary to law or inequitable for 

any reason, and not to assert that a remedy of monetary damages would provide an adequate 

remedy or that the parties otherwise have an adequate remedy at law. Notwithstanding anything to 

the contrary, in no event shall this Section 10.13 be used, alone or together with any other provision 

of this Agreement, to require the Seller to remedy any breach of any representation or warranty of 

the Seller. 

10.14 Third-Party Beneficiaries. Except as set forth in ARTICLE 2 (with respect to the 

Seller), Section 10.15 (with respect to the Nonparty Affiliates), Section 10.16 (with respect to the 

released parties identified therein), Section 10.17 (with respect to the Sellers’ Group Members)

and the next sentence, nothing in this Agreement, express or implied, is intended to confer upon 

any Person other than the parties hereto any rights or remedies of any nature whatsoever under or 

by reason of this Agreement. From and after the Closing, all of the Persons identified as thirdparty beneficiaries in the first sentence of this Section 10.14 shall be entitled to enforce such 

provisions and to avail themselves of the benefits of any remedy for any breach of such provisions, 

all to the same extent as if such Persons were parties to this Agreement. The representations and 

warranties in this Agreement are the product of negotiations among the parties hereto and are for 

the sole benefit of the parties hereto. Any inaccuracies in such representations and warranties are 

subject to waiver by the parties hereto in accordance with this Agreement 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 hereto of risks associated with particular 

matters regardless of the knowledge of any party hereto. Consequently, Persons other than the 

parties hereto may not rely upon the representations and warranties in this Agreement as 

characterizations of actual facts or circumstances as of the Agreement Date or as of any other date. 

10.15 No Personal Liability of Directors, Officers and Owners. All Related Claims 

may be made only against (and are those solely of) the entities that are expressly identified as 

parties in the preamble to this Agreement (the “Contracting Parties”). No Person who is not a 

Contracting Party, including any current, former or future director, officer, employee, incorporator, 

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member, partner, manager, stockholder, Affiliate, agent, attorney, representative or assignee of, or 

any financial advisor or lender to, any Contracting Party, or any current, former or future director, 

officer, employee, incorporator, member, partner, manager, stockholder, Affiliate, agent, attorney, 

representative or assignee of, or any financial advisor or lender to, any of the foregoing 

(collectively, “Nonparty Affiliates”), shall have any Liability pursuant to any Related Claim; and, 

to the maximum extent permitted by Applicable Law, each Contracting Party hereby waives and 

releases all such Liabilities, claims, causes of action, and obligations against any such Nonparty 

Affiliates. Without limiting the foregoing, to the maximum extent permitted by Applicable Law, 

(a) each Contracting Party hereby waives and releases any and all rights, claims, demands, or 

causes of action that may otherwise be available at Applicable Law or in equity, or granted by 

statute, to avoid or disregard the entity form of a Contracting Party or otherwise impose Liability 

of a Contracting Party on any Nonparty Affiliate, whether granted by statute or based on theories 

of equity, agency, control, instrumentality, alter ego, domination, sham, single business enterprise, 

piercing the veil, unfairness, undercapitalization, or otherwise; and (b) each Contracting Party 

disclaims any reliance upon any Nonparty Affiliates with respect to the performance of this 

Agreement or any representation or warranty made in, in connection with, or as an inducement to 

this Agreement or the Related Documents. 

10.16 General Release. 

(a) Effective as of the Closing, the Seller, on behalf of itself, its 

Affiliates and each of their respective successors and assigns (each of the foregoing, a “Seller 

Releasing Party”), hereby fully, irrevocably and unconditionally releases and forever discharges 

Purchaser and its respective past and present directors, managers, officers, employees, agents, 

stockholders, members, representatives and Affiliates from and against, and covenants that it will 

not (directly or indirectly) assert any claim or proceeding of any kind before any Governmental 

Authority based upon, any and all claims, Actions, causes of action, suits, rights, agreements, 

Liabilities and demands whatsoever and all consequences thereof, known or unknown, actual or 

potential, suspected or unsuspected, fixed or contingent, both in law and in equity, whether existing 

as of the Closing or arising thereafter, that a Seller Releasing Party has or may have, now or in the 

future, arising out of, relating to, or resulting from any act or omission, error, negligence, breach 

of contract, tort, violation of law, matter or cause whatsoever from the beginning of time to the 

Closing Date. The foregoing sentence shall not be deemed to be a release or waiver by a Seller 

Releasing Party of any Action it may have under this Agreement or any of the other Related 

Documents. 

(b) Effective as of the Closing, Purchaser, on behalf of itself, its 

Affiliates and each of their respective successors and assigns (each of the foregoing, a “Purchaser 

Releasing Party”), hereby fully, irrevocably and unconditionally releases and forever discharges 

the Seller, the Seller’s Affiliates and its and their respective past and present directors, managers, 

officers, agents, stockholders, members, representatives and Affiliates from and against, and 

covenants that it will not (directly or indirectly) assert any claim or proceeding of any kind before 

any Governmental Authority based upon, all claims, Actions, causes of action, suits, rights, 

agreements, Liabilities and demands whatsoever and all consequences thereof, known or 

unknown, actual or potential, suspected or unsuspected, fixed or contingent, both in law and in 

equity, whether existing as of the Closing or arising thereafter, that a Purchaser Releasing Party 

has or may have, now or in the future, arising out of, relating to, or resulting from any act or 

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57 

50307134.17 

omission, error, negligence, breach of contract, tort, violation of law, matter or cause whatsoever 

from the beginning of time to the Closing Date. The foregoing sentence shall not be deemed to be 

a release or waiver by a Purchaser Releasing Party of any Action it may have under this Agreement 

or any of the other Related Documents. 

10.17 Legal Representation. Purchaser and the Seller acknowledge and agree that the 

Law Firms have represented the Seller Group in connection with the negotiation, preparation, 

execution, delivery and performance of this Agreement and the Related Documents and the 

consummation of the Transactions, and that the Seller, its Affiliates and its partners, officers, 

directors and representatives (the “Seller Group Members”) have a reasonable expectation that 

the Law Firms will represent them in connection with any Action involving any Seller Group 

Member, on the one hand, and Purchaser or any of its Affiliates and representatives (the 

“Purchaser Group Members”), on the other hand, arising under this Agreement, the Related 

Documents or the Transactions. Purchaser hereby, on behalf of itself and the other Purchaser 

Group Members, irrevocably: (a) acknowledges and agrees that any attorney-client privilege, 

solicitor-client privilege, work product or other attorney-client or solicitor-client confidential 

information (“Attorney-Client Information”) arising from communications prior to the Closing 

between any Seller (including any one or more officers, directors or stockholders of such Seller), 

on the one hand, and the Law Firms, on the other hand, are not included in the property, rights, 

privileges, powers, franchises and other interests that are possessed by or vested in the Business 

or the Transferred Assets, that any such Attorney-Client Information shall be deemed property of, 

and controlled solely by, such Seller for the benefit and on behalf of the Seller Group Members 

and, upon request, convey and transfer any Attorney-Client Information to the Seller; (b) 

acknowledge and agree that the Seller Group Members shall have the right to retain, or cause the 

Law Firm to retain, any such documentation or information in the possession of the Law Firms or 

such Seller Group Members at the Closing; (c) agree not to access, retain or use any documentation 

or information constituting Attorney-Client Information and that no Purchaser Group Member 

shall have any right to waive any attorney-client privilege or other right to confidentiality with 

respect to such Attorney-Client Information; (d) disclaim the right to assert a waiver by any Seller 

Group Member with regard to the attorney-client privilege, solicitor-client privilege or other right 

to confidentiality with respect to such Attorney-Client Information solely due to the fact that such 

documentation or information is physically in the possession of Purchaser after the Closing; (e) 

consent to the Law Firms’ representation after the Closing of any Seller Group Member in any 

Action that may relate to a Purchaser Group Member or the Transactions and consent to and waive 

any conflict of interest arising therefrom without the need for any future waiver or consent; and (f) 

consent to the disclosure by the Law Firms to any Seller Group Member of any documentation or 

information obtained by the Law Firms during the course of its representation of Seller or any 

Affiliate prior to the Closing, whether related to this Agreement, the Related Documents, the 

Transactions or otherwise, whether or not such disclosure is made prior to or after the Closing and 

whether or not the documentation or information disclosed is subject to any attorney-client 

privilege, solicitor-client privilege or confidentiality obligation to any Seller, any Affiliate of such 

Seller or any other Person. In the event that any Action arises after the Closing between any 

Purchaser Group Member and a Person other than a Seller Group Member, such Purchaser Group 

Member shall not disclose any documentation or information that is subject to an attorney-client 

privilege or other rights of confidentiality referenced in this Section 10.17 without the prior written 

consent of the applicable Seller; provided, however, that if such Purchaser Group Member is 

required by judicial order or other legal process to make such disclosure, such Purchaser Group 

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58 

50307134.17 

Member shall promptly notify the applicable Seller in writing of such requirement (without making 

disclosure) and shall provide such Seller with such cooperation and assistance as shall be necessary 

to enable such Seller to prevent disclosure by reason of such attorney-client privilege, solicitorclient privilege or other rights of confidentiality. This Section 10.17 is for the benefit of the Seller 

Group Members and such Persons are intended third-party beneficiaries of this Section 10.17. 

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Signature Page to Asset Purchase Agreement 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly 

executed as of the date first written above. 

PURCHASER: 

JN BIDCO LLC 

By: 

Name: Ray Canole 

Title: Authorized Signatory 

PARENT: 

WOODWARD PHARMA SERVICES LLC 

By: 

Name: Ray Canole 

Title: Authorized Signatory 

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Signature Page to Asset Purchase Agreement 

SELLER: 

IMPEL PHARMACEUTICALS INC.

By: 

Name: Leonard Paolillo 

Title: Interim Chief Executive Officer 

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Exhibit 3 

Sale Notice 

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IN THE UNITED STATES BANKRUPTCY COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

In re:

IMPEL PHARMACEUTICALS INC., et al.1

 Debtors. 

Chapter 11 

Case No. 23-80016 (SGJ) 

(Jointly Administered) 

NOTICE OF SALE, BID PROCEDURES, AUCTION, AND SALE HEARING

PLEASE TAKE NOTICE: 

On December 19, 2023 (the “Petition Date”), the debtors and debtors in possession in the 

above-captioned chapter 11 cases (collectively, the “Debtors”) filed voluntary petitions for relief 

under chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”) in the United States 

Bankruptcy Court for the Northern District of Texas (the “Court”).

On December 20, 2023, the Debtors filed a motion [Docket No. 18] (the “Bid Procedures 

Motion”) with the Court seeking entry of orders, among other things: (i)(a) approving procedures 

for the solicitation of bids in connection with the proposed sale of substantially all of the Debtor’s 

assets, (the “Bid Procedures”), (b) authorizing the Debtors to select JN Bidco LLC as the Stalking 

Horse Purchaser substantially along the terms defined in the Stalking Horse APA and approving 

Bid Protections, (c) establishing the dates and deadlines set forth in these Bid Procedures, 

including the Bid Deadline, Auction, and Sale Hearing, (d) approving the form of Sale Notice, (e) 

approving the Assumption and Assignment Procedures for the Designated Contracts (if any), (f) 

approving the form of Assignment Notice, and (ii)(a) authorizing the sale of the Assets free and 

clear of all pledges, liens, security interests, encumbrances, claims, charges, options, and interests 

except to the extent otherwise set forth in the purchase agreement executed by the Debtors and the 

Winning Bidder and (b) approving the assumption and assignment of Designated Contracts (if 

any), and (iii) granting related relief. 

On [•], 2024, the Court entered the Order (I)(A) Approving the Bid Procedures; 

(B) Authorizing the Debtors to Select JN Bidco LLC as the Stalking Horse Purchaser Substantially 

Along the Terms Defined in the Stalking Horse APA and Approving Bid Protections; (C) 

Establishing Bid Deadlines, an Auction, and a Sale Hearing;(D) Approving the Form and Manner 

of Sale Notice; (E) Approving Assignment and Assumption Procedures; (F) Approving the Form 

and Manner of Potential Assumption and Assignment Notice; and (II)(A) Authorizing the Sale of 

Assets Free and Clear; (B) Approving the Assumption and Assignment of Designated Contracts; 

1 The Debtors in this chapter 11 case, together with the last four digits of the Debtor’s federal tax identification number, 

are: Impel Pharmaceuticals Inc. (8238); and Impel NeuroPharma Australia Pty Ltd (N/A). The Debtors’ service 

address is 201 Elliot Avenue West, Suite 260, Seattle, WA 98119. 

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and (III) Granting Related Relief [Docket No. [•]] (the “Bid Procedures Order”),

2 which, among 

other things, establishes key dates and deadlines related to the Auction for, and the Sale of, the 

Assets. All interested bidders and parties in interest in the chapter 11 case should carefully 

read the Bid Procedures Order and the Bid Procedures in their entirety. 

Participation in the Sale Process

The Bid Procedures set forth the requirements for submitting a Qualified Bid and any 

person interested in making an offer to purchase the Assets must strictly comply with the Bid 

Procedures. Only Qualified Bids will be considered by the Debtors in accordance with the Bid 

Procedures. 

Any interested bidder should contact Moelis & Company LLC as soon as practicable.

Important Dates and Deadlines3

The Bid Procedures include a number of dates and deadlines that must be strictly complied 

with, only a few of which are highlighted here: 

• Bid Deadline. The deadline to submit a qualified Bid is January 23, 2024, at 4:00 p.m.

(prevailing Central Time).

• Auction. The Auction (if any) will commence on January 29, 2024, at 9:00 am (prevailing 

Central Time) (which date may be modified by the Debtors in their business judgment with 

the consent of the Administrative Agent) virtually or at such other place as agreed by the 

Debtors, the Administrative Agent, and Committee, or approved by order of the Court, and of 

which the Debtors will notify the Auction Participants. 

• Deadline to Object to the Sale. Objections to the Sale (or the assumption and assignment of 

any Designated Contract) must be filed with the Court by January 25, 2024, at 4:00 p.m.

(prevailing Central Time) and otherwise meet the requirements set forth in the Bid Procedures 

Order. 

• Sale Hearing. A hearing to consider approval of the proposed Sale will be held before the 

Court on February 1, 2024, at 9:30 a.m. (prevailing Central Time) in Courtroom #1, 14th 

Floor, Earle Cabell Federal Building, 1100 Commerce Street, Suite 1254, Dallas, Texas, 

75242. Participation in the hearing may be in person or by an audio and video 

connection, as set forth in the Bid Procedures Motion. 

2 Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Bid Procedures Motion, 

the Bid Procedures, and the Bid Procedures Order, as applicable.

3

 The following dates and deadlines may be extended by the Debtors by filing a notice with the Court, pursuant to the 

Bid Procedures. 

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Consequences of Failing to Timely Assert an Objection

Except as otherwise ordered by the Court, any party or entity that fails to timely make an 

objection to the Sale on or before the objection deadline in accordance with the Bid Procedures 

Order and this notice shall be forever barred from asserting any objection to the Sale, including 

with respect to the transfer of the assets free and clear of all liens, claims, encumbrances, and other 

interests. 

No Successor Liability

By the Bid Procedures Motion, the Debtors are seeking to transfer the Assets to the 

Winning Bidder free and clear of, among other things, any claim arising from any conduct of the 

Debtors prior to the closing of the Sale, whether known or unknown, due or become due, accrued, 

absolute, contingent or otherwise, so long as such claim arises out of or relates to events occurring 

prior to the closing of the Sale. The Debtors are requesting the Court order that, as a result of the 

Sale, the Winning Bidder will not be a successor to the Debtors by reason of any theory of law or 

equity and the Winning Bidder will have no liability, except as expressly provided in the definitive 

documentation for the Sale, for any liens, claims, encumbrances, and other interests against or in 

the Debtors or their assets under any theory of law including successor liability theories. 

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Dated: December [●], 2024

Dallas, Texas SIDLEY AUSTIN LLP

/s/ [DRAFT]

Samuel A. Newman (admitted pro hac vice)

555 West Fifth Street

Los Angeles, California 90013

Telephone: (213) 896-6000

Facsimile: (213) 896-6600

Email: sam.newman@sidley.com

Rakhee V. Patel (TX Bar No. 00797213)

Nathan C. Elner (admitted pro hac vice)

Parker G. Embry (TX Bar No. 24126826)

Chelsea M. McManus (TX Bar No. 24131499)

2021 McKinney Avenue, Suite 2000

Dallas, Texas 75201

Telephone: (214) 981-3300

Facsimile: (214) 981-3400

Email: rpatel@sidley.com

nelner@sidley.com

parker.embry@sidley.com

cmcmanus@sidley.com

Jackson T. Garvey (admitted pro hac vice)

One South Dearborn

Chicago, IL 60603

Telephone: (312) 853-7000

Facsimile: (312) 853-7036

Email: jgarvey@sidley.com

Proposed Counsel to the Debtors and Debtors in 

Possession

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Exhibit 4 

Assumption and Assignment Procedures

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IN THE UNITED STATES BANKRUPTCY COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

In re:

IMPEL PHARMACEUTICALS INC., et al.1

 Debtors. 

Chapter 11 

Case No. 23-80016 (SGJ) 

(Jointly Administered) 

ASSUMPTION AND ASSIGNMENT PROCEDURES

On December 20, 2023, the debtors and debtors in possession in the above-captioned 

chapter 11 cases (collectively, the “Debtors”) filed with the United States Bankruptcy Court for 

the Northern District of Texas (the “Court”) a motion (the “Bid Procedures Motion”) seeking entry 

of orders, among other things: (i)(a) approving procedures for the solicitation of bids in connection 

with the proposed sale of substantially all of the Debtor’s assets, (the “Bid Procedures”), (b)

authorizing the Debtors to select JN Bidco LLC as the Stalking Horse Purchaser substantially 

along the terms defined in the Stalking Horse APA and approving Bid Protections, (c) establishing 

the dates and deadlines set forth in these Bid Procedures, including the Bid Deadline, Auction, and 

Sale Hearing, (d) approving the form of Sale Notice, (e) approving the Assumption and 

Assignment Procedures for the Designated Contracts (if any), (f) approving the form of 

Assignment Notice, and (ii)(a) authorizing the sale of the Assets free and clear of all pledges, liens, 

security interests, encumbrances, claims, charges, options, and interests except to the extent 

otherwise set forth in the purchase agreement executed by the Debtors and the Winning Bidder 

and (b) approving the assumption and assignment of Designated Contracts (if any), and (iii) 

granting related relief. On [•], 2024, the Court entered the Order (I)(A) Approving the Bid 

Procedures; (B) Authorizing the Debtors to Select JN Bidco LLC as the Stalking Horse Purchaser 

substantially along the terms defined in the Stalking Horse APA and Approving Bid Protections, 

(C) Establishing Bid Deadlines, an Auction, and a Sale Hearing;(D) Approving the Form and 

Manner of Sale Notice; (E) Approving Assignment and Assumption Procedures; (F) Approving the 

Form and Manner of Potential Assumption and Assignment Notice; and (II)(A) Authorizing the 

Sale of Assets Free and Clear; (B) Approving the Assumption and Assignment of Designated 

Contracts; and (III) Granting Related Relief [Docket No. [•]] (the “Bid Procedures Order”),

2

approving, among other things, the procedures in connection with the assumption and assignment 

of Designated Contracts (if any) set forth below (the “Assumption and Assignment Procedures”).

1. The Assumption and Assignment Procedures are as follows: 

1 The Debtors in this chapter 11 case, together with the last four digits of the Debtor’s federal tax identification number, 

are: Impel Pharmaceuticals Inc.. (8238); and Impel NeuroPharma Australia Pty Ltd (N/A). The Debtors’ service 

address is 201 Elliot Avenue West, Suite 260, Seattle, WA 98119. 

2 Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Bid Procedures Motion, 

the Bid Procedures, and the Bid Procedures Order, as applicable.

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a. The Cure Notice. On or before January 5, 2024 (the “Initial Cure Notice 

Deadline”), the Debtors shall file with the Court and serve on each counterparty 

(each, a “Counterparty,” and collectively, the “Counterparties”) to an executory 

contract or unexpired lease that potentially could be assumed and assigned in 

connection with the sale of Assets (collectively, the “Executory Contracts or 

Unexpired Leases”) a notice setting forth (a) each of the Executory Contracts and 

Unexpired Leases that potentially could be assumed and assigned in connection 

with the sale of Assets, including the name of each Counterparty (the “Potential 

Assumed Contracts”), and (b) the amount of cure owed thereunder according to the 

Debtors’ books and records (the “Cure Notice”).

b. The Cure Objection. The Cure Notice shall include, without limitation, (a) a list 

of the Potential Assumed Contracts, (b) the cure amount (each, a “Cure Amount”), 

if any, that the Debtors reasonably believe is required to be paid to the applicable 

Counterparty under section 365(b)(1)(A) and (B) of the Bankruptcy Code for each 

of the Potential Assumed Contracts listed, (c) an express disclaimer that the 

assumption or assignment of any Executory Contracts or Unexpired Leases is not 

guaranteed and is subject to Court approval, (d) the Cure Objection Deadline (as 

defined below), and (e) the date, time, and location of the Sale Hearing. If a 

Counterparty objects to (i) the Cure Amount for its Potential Assumed Contract or 

(ii) the provision of adequate assurance of future performance, the Counterparty 

must file with the Court and serve on the Objection Notice Parties (as defined 

below) a written objection (such objection to adequate assurance of future 

performance, an “Adequate Assurance Objection” and any other such objection, a 

“Cure Objection”). If a Potential Assumed Contract is designated by the Winning 

Bidder (or Stalking Horse Bidder, as applicable) as an executory contract or 

unexpired lease it wishes to have assumed and assigned in connection with the Sale 

(the “Designated Contracts”), then unless a Counterparty properly and timely files 

and serves a Cure Objection pursuant to the Cure Notice, the Counterparty will 

receive payment from the Winning Bidder of the Cure Amount (if any) as set forth 

in the Cure Notice consistent with the terms and procedures set forth in the Stalking 

Horse Bidder’s or Winning Bidder’s asset purchase agreement, as applicable. 

c. The Cure Objection Deadline. Any Cure Objection shall: (i) be in writing; 

(ii) comply with the Bankruptcy Rules and the Bankruptcy Local Rules; (iii) be filed

with the Clerk of the Court, by electronic submission through PACER (Public 

Access to Court Electronic Records at https://ecf.txnb.uscourts.gov/), or if 

submitted through non- electronic means, by U.S. Mail or other hand delivery 

system at the following address: United States Bankruptcy Court, 1100 Commerce 

St, #5300, Dallas, TX 75242, on or before 4:00 p.m. (CT) on January 26, 2024 

(the “Cure Objection Deadline”); (iv) be served, so as to be actually received on or 

before the Cure Objection Deadline, upon the Objection Notice Parties (as defined 

below) by email; and (v)state with specificity the legal and factual grounds for such 

objection, including, without limitation, the Cure Amounts the Counterparty 

believes is required to cure defaults under the relevant Executory Contracts or 

Unexpired Leases. Any objections to adequate assurance of performance by such

Stalking Horse Bidder shall be filed by the Cure Objection Deadline. Any Adequate 

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Assurance Objection must be filed and in the same manner as a Cure Objection no 

later than 4:00 p.m. (CT) on January 30, 2024. 

d. The Objection Notice Parties. The “Objection Notice Parties” are as follows: 

(i) proposed counsel to the Debtors, Sidley Austin LLP, Attn: Rakhee V. Patel 

(rpatel@sidley.com) and Jackson T. Garvey (jgarvey@sidley.com), (ii) proposed 

special corporate counsel to the Debtors, Fenwick & West, LLP, Attn: Alan Smith 

(acsmith@fenwick.com), Ethan Skerry (eskerry@fenwick.com), and Matthew 

McCabe (mmccabe@fenwick.com); (iii) counsel to any official committee of 

unsecured creditors appointed in the Debtors’ chapter 11 cases; (iv) the Office of 

the United States Trustee, 1100 Commerce Street, Room 976, Dallas, Texas 75242, 

Attn: Lisa L. Lambert (Lisa.L.Lambert@usdoj.gov) and Erin Schmidt 

(erin.schmidt2@usdoj.gov); and (v) counsel to the Stalking Horse Bidder, 

Honigman LLP, Attn: Scott Kitei (skitei@honigman.com) and Gray Reed, Attn: 

Aaron Kaufman (akaufman@grayreed.com). 

e. The Supplemental Cure Notice. If after the Initial Cure Notice Deadline 

additional executory contracts or unexpired leases of the Debtors are determined to 

be Designated Contracts (such additional contracts, the “Additional Contracts”), as 

soon as practicable thereafter, the Debtors shall file with the Court and serve, by 

overnight delivery, on the Counterparties a supplemental notice (the “Supplemental 

Cure Notice”), and such Counterparties shall file a Cure Objection to the 

Supplemental Cure Notice (the “Supplemental Cure Objection”) not later than 

fourteen (14) days following the date of service of such Supplemental Cure 

Notice. The Debtors may file with the Court and serve Supplemental Cure Notices 

until such time as the closing of the Sale. 

f. The Notice of Winning Bid. As set forth in the Bid Procedures, as soon as 

reasonably practicable after the conclusion of the Auction, the Debtors shall file 

with the Court a notice identifying the Winning Bidder (a “Notice of Winning

Bid”), which shall set forth, among other things, the Designated Contracts and 

applicable Cure Amounts and a certification by the Debtors that the Debtors have 

provided, or will provide, in coordination with the proposed assignee, the Winning 

Bidder’s Adequate Assurance Information to each affected Counterparty on a 

confidential basis. 

g. The Assignment Notice. As soon as reasonably practicable after filing the Notice 

of Winning Bid, the Debtors will cause to be served by overnight mail upon each 

affected Counterparty and its counsel (if known) a notice, substantially in the form 

attached to the Bid Procedures Order as Exhibit 5 (the “Assignment Notice”), 

which shall: (i) identity the Winning Bidder(s); (ii) identify the Designated 

Contracts; (iii) identify the applicable Cure Amounts for each Designated Contract; 

(iv) expressly state that assumption or assignment of an Executory Contract or 

Unexpired Lease is not guaranteed and is subject to Court approval; (v) prominently 

display the deadline to object solely on the basis of adequate assurance of future 

performance by no later than the Post-Auction Objection Deadline, or January 30, 

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2024, at 4:00 p.m. (prevailing Central Time); and (vi) prominently display the time, 

date, and location of the Sale Hearing. 

h. Reservation of Rights. At the Sale Hearing, the Debtors will seek Court approval 

of their assumption and assignment to any Winning Bidder of only those Executory 

Contracts or Unexpired Leases that have been selected by any Winning Bidder to 

be Designated Contracts. The Debtors and their estates reserve any and all rights 

with respect to any Executory Contracts or Unexpired Leases that are not ultimately 

designated as Designated Contracts.

i. No Cure Objections. If no Cure Objection or Supplemental Cure Objection is 

timely received with respect to an Executory Contract or Unexpired Lease 

designated by the Stalking Horse Bidder, if any, or Winning Bidder as a Designated 

Contract: (i) the Counterparty to such Designated Contract shall be deemed to have 

consented to the assumption by the Debtors and assignment to the Winning Bidder 

of the Designated Contract, and be forever barred from asserting any objection with 

regard to such assumption and assignment (including, without limitation, with 

respect to adequate assurance of future performance by the Stalking Horse Bidder 

or Winning Bidder, as applicable); (ii) any and all defaults under the Designated 

Contract and any and all pecuniary losses related thereto shall be deemed cured and 

compensated pursuant to section 365(b)(1)(A) and (B) of the Bankruptcy Code; and 

(iii) the Cure Amount for such Designated Contract shall be controlling, 

notwithstanding anything to the contrary in such Designated Contract, or any 

other related document, and the Counterparty shall be deemed to have consented 

to the Cure Amount and shall be forever barred from asserting any other claims 

related to such Designated Contract against the Debtors and their estates or any 

Winning Bidder, or the property of any of them, that existed prior to the entry of 

the Sale Order. 

j. Dispute Resolution. To the extent that the parties are unable to consensually 

resolve any Cure Objection or Supplemental Cure Objection prior to the 

commencement of the Sale Hearing, including, without limitation, any dispute with 

respect to the cure amount required to be paid to the applicable Counterparty under 

section 365(b)(1)(A) and (B) of the Bankruptcy Code (any such dispute, a “Cure 

Dispute”), such Cure Objection or Supplemental Cure Objection will be 

adjudicated at the Sale Hearing or at such other date and time as may be determined 

by the Debtors or fixed by the Court; provided, however, that to the extent that any 

Cure Dispute cannot be resolved by the parties, such Designated Contract shall be 

assumed and assigned only upon satisfactory resolution of the Cure Dispute, to be 

determined in the Stalking Horse Bidder’s (if applicable) or other Winning Bidder’s 

reasonable discretion. To the extent a Cure Dispute exists, the Designated Contract 

may be conditionally assumed and assigned, subject to the consent of the Stalking 

Horse Bidder, if any, or other Winning Bidder, pending a resolution of the Cure 

Dispute after notice and a hearing. If a Cure Dispute is not satisfactorily resolved, 

the Stalking Horse Bidder, if any, or other Winning Bidder may determine that such 

Designated Contract should be rejected and not assigned, in which case the Stalking 

Horse Bidder, if any, or other Winning Bidder will not be responsible for any Cure 

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Amounts in respect of such contract unless otherwise provided in the applicable 

asset purchase agreement. 

2. Notwithstanding anything to the contrary herein, if after the Sale Hearing or the entry of 

the Sale Order additional executory contracts or unexpired leases of the Debtors are 

determined to be Designated Contracts, as soon as practicable thereafter, the Debtors shall 

file with the Court and serve, by overnight delivery, on the Counterparties a supplemental 

Assignment Notice (the “Supplemental Assignment Notice”), and such Counterparties 

shall file any objections not later than twenty-one (21) days thereafter. If no objection is 

timely received, the Debtors shall be authorized to assume and assign such Designated 

Contracts included on the Supplemental Assignment Notice to the Stalking Horse Bidder, 

if any, or any Winning Bidder, without further notice to creditors or other parties in interest 

and without the need for further order of the Court, and such assumption and assignment 

shall be subject to the terms of the Sale Order. 

3. Counterparties to the Designated Contracts may request adequate assurance of future 

performance by the Winning Bidder or Backup Bidder by contacting counsel to the 

Debtors, Sidley Austin LLP, 2021 McKinney Ave #2000, Dallas, TX 75201, Attn: Rakhee 

V. Patel (rpatel@sidley.com) and Jackson T. Garvey (jgarvey@sidley.com). Such 

adequate assurance may be provided on a confidential basis for all nonpublic information. 

4. The Winning Bidder will pay undisputed cure amounts consistent with the terms and 

procedures set forth in the Winning Bidder’s asset purchase agreement. 

5. Except as otherwise ordered by the Court, any party or entity that fails to timely object to 

the assumption and assignment of a Designated Contract on or before the objection 

deadline in accordance with the Bid Procedures Order shall be forever barred from 

asserting any objection to the assumption and assignment of such Designated Contract, the 

proposed cure cost, or adequate assurance of future performance. Any counterparty to a 

Designated Contract that fails to object to the proposed assumption and assignment by the 

applicable objection deadline will be deemed to assent to the assumption of the Designated 

Contract on the terms set forth in the Assignment Notice. 

6. The inclusion of an Executory Contract or Unexpired Lease, or Cure Amounts with respect 

thereto on a Cure Notice, a Supplemental Cure Notice, or an Assignment Notice, shall not 

constitute or be deemed a determination or admission by the Debtors, the Stalking Horse

Purchaser, if any, the Winning Bidder(s), or any other party in interest that such contract or 

lease is an executory contract or unexpired lease within the meaning of the Bankruptcy 

Code. The Debtors reserve all of their rights, claims, and causes of action with respect to 

each Executory Contract and Unexpired Lease listed on a Cure Notice, a Supplemental 

Cure Notice, or an Assignment Notice. The Debtors’ inclusion of any Executory Contract 

or Unexpired Lease on the Cure Notice, a Supplemental Cure Notice, or an Assignment 

Notice shall not be a guarantee that such Executory Contract or Unexpired Lease, Potential 

Assumed Contract, or Designated Contract, ultimately will be assumed or assumed and 

assigned.

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7. Assumption and assignment of any Designated Contract shall result in the full release 

and satisfaction of any cures, claims, or defaults, whether monetary or nonmonetary, 

including defaults of provisions restricting the change in control or ownership interest 

composition or any bankruptcy-related defaults, arising at any time prior to the 

effective date of assumption. Any and all proofs of claim based upon executory 

contracts or unexpired leases that have been assumed in the chapter 11 cases, 

including pursuant to the Sale Order, shall be deemed disallowed and expunged as of 

the later of (1) the date of entry of an order of the Court (including the Sale Order) 

approving such assumption and (2) the effective date of such assumption without the 

need for any objection or any further notice to or action, order, or approval of the 

Court.

Dated: [●], 2024

Dallas, Texas SIDLEY AUSTIN LLP

/s/ [DRAFT]

Samuel A. Newman (admitted pro hac vice)

555 West Fifth Street

Los Angeles, California 90013

Telephone: (213) 896-6000

Facsimile: (213) 896-6600

Email: sam.newman@sidley.com

Rakhee V. Patel (TX Bar No. 00797213)

Nathan C. Elner (admitted pro hac vice)

Parker G. Embry (TX Bar No. 24126826)

Chelsea M. McManus (TX Bar No. 24131499)

2021 McKinney Avenue, Suite 2000

Dallas, Texas 75201

Telephone: (214) 981-3300

Facsimile: (214) 981-3400

Email: rpatel@sidley.com

nelner@sidley.com

parker.embry@sidley.com

cmcmanus@sidley.com

Jackson T. Garvey (admitted pro hac vice)

One South Dearborn

Chicago, IL 60603

Telephone: (312) 853-7000

Facsimile: (312) 853-7036

Email: jgarvey@sidley.com

Proposed Counsel to the Debtors and Debtors in 

Possession

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Exhibit 5 

Assignment Notice

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IN THE UNITED STATES BANKRUPTCY COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

In re:

IMPEL PHARMACEUTICALS INC., et al.1

 Debtors. 

Chapter 11 

Case No. 23-80016 (SGJ) 

(Jointly Administered) 

NOTICE OF ASSUMPTION AND ASSIGNMENT OF DESIGNATED CONTRACTS

PLEASE TAKE NOTICE: 

On December 20, 2023, the debtors and debtors in possession in the above-captioned 

chapter 11 cases (collectively, the “Debtors”) filed with the United States Bankruptcy Court for 

the Northern District of Texas (the “Court”) a motion (the “Bid Procedures Motion”) seeking entry 

of orders, among other things: (i)(a) approving procedures for the solicitation of bids in connection 

with the proposed sale of substantially all of the Debtor’s assets, (the “Bid Procedures”), (b) 

authorizing the Debtors to select JN Bidco LLC as the Stalking Horse Purchaser substantially 

along the terms defined in the Stalking Horse APA and approving Bid Protections, (c) establishing 

the dates and deadlines set forth in these Bid Procedures, including the Bid Deadline, Auction, and 

Sale Hearing, (d) approving the form of Sale Notice, (e) approving the Assumption and 

Assignment Procedures for the Designated Contracts (if any), (f) approving the form of 

Assignment Notice, and (ii)(a) authorizing the sale of the Assets free and clear of all pledges, liens, 

security interests, encumbrances, claims, charges, options, and interests except to the extent 

otherwise set forth in the purchase agreement executed by the Debtors and the Winning Bidder 

and (b) approving the assumption and assignment of Designated Contracts (if any), and (iii) 

granting related relief.

On [•], 2024, the Court entered the Order (I)(A) Approving the Bid Procedures; 

(B) Authorizing the Debtors to Select JN Bidco LLC as the Stalking Horse Purchaser Substantially 

Along the Terms Defined in the Stalking Horse APA and Approving Bid Protections (C) 

Establishing Bid Deadlines, an Auction, and a Sale Hearing;(D) Approving the Form and Manner 

of Sale Notice; (E) Approving Assignment and Assumption Procedures; (F) Approving the Form 

and Manner of Potential Assumption and Assignment Notice; and (II)(A) Authorizing the Sale of 

Assets Free and Clear; (B) Approving the Assumption and Assignment of Designated Contracts; 

and (III) Granting Related Relief [Docket No. [•]] (the “Bid Procedures Order”),2 approving, 

among other things, the Assumption and Assignment Procedures, which establish the process by 

1 The Debtors in this chapter 11 case, together with the last four digits of the Debtor’s federal tax identification number, 

are: Impel Pharmaceuticals Inc. (8238); and Impel NeuroPharma Australia Pty Ltd (N/A). The Debtors’ service 

address is 201 Elliot Avenue West, Suite 260, Seattle, WA 98119. 

2 Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Bid Procedures Motion, 

the Bid Procedures, and the Bid Procedures Order, as applicable.

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which any executory contracts designated by the Winning Bidder shall be assumed and assigned 

to the Winning Bidder. All recipients of this notice should carefully read the Bid Procedures 

Order and the Assumption and Assignment Procedures in their entirety. 

On [•], 2024, the Debtors filed with the Court the notice attached as Schedule 1, disclosing 

the Winning Bid [and Backup Bid], which included a list of Designated Contracts (the “Notice of 

Winning Bid”). The inclusion of a contract shall not (a) obligate the Debtors to assume or assign 

such contract or (b) constitute any admission or agreement by the Debtors that such contract is an 

executory contract. Only those contracts that are included on a schedule of assumed and acquired 

contracts attached to definitive documentation in the Sale that is approved by the Sale Order will 

be assumed and assigned. 

Assignment of Designated Contracts to the Winning Bidder

You are receiving this notice (the “Assignment Notice”) because you are a counterparty to 

the executory contract(s) listed on Schedule 2, which the Debtors are proposing to assume and 

assign to the Winning Bidder in connection with the Sale. 

A. Cure Amounts 

Section 365(b)(1) of the Bankruptcy Code requires a debtor to cure, or provide adequate 

assurance that it will promptly cure, any defaults under executory contracts and unexpired leases 

at the time of assumption.

In accordance with the assumption and assignment procedures authorized by the Court 

pursuant to the Bid Procedures Order (the “Assumption and Assignment Procedures”), on January 

5, 2024, the Debtors filed with the Court and served upon the non-Debtor counterparties to the 

Designated Contracts, one or more notices (each, a “Cure Notice”) setting forth that such executory 

contract or unexpired lease may be assumed or assigned to the Purchaser and the applicable cure 

amount the Debtors believe is necessary to satisfy to assume such executory contract or unexpired 

lease in accordance with section 365 of the Bankruptcy Code. The deadline to object to that Cure 

Notice was on January 26, 2024 (the “Cure Objection Deadline”).

Schedule 2 sets forth the cure amount (if any) of Designated Contracts according to the 

Debtors’ records that is required pursuant to section 365(a) of the Bankruptcy Code. The cure 

amounts set forth in Schedule 2 shall be controlling as of the date of this Assignment Notice; the 

non-debtor party to each unexpired lease set forth on Schedule 2 stipulated that the Cure Amount 

set forth in this Assignment Notice is correct in accordance with the Assignment and Assumption 

Procedures; the non-debtor party shall be forever barred, estopped, and enjoined from asserting or 

claiming that any additional amounts are due or other defaults exist. 

Schedule 3 sets forth the proposed cure amount (if any) of Designated Contracts not 

previously included on a Cure Notice according to the Debtors’ records that is required pursuant 

to section 365(a) of the Bankruptcy Code. The proposed cure amount represents all monetary 

defaults of any nature that the Debtors believe are or may be outstanding under the 

Designated Contract prior to the closing of the Sale. If you believe the proposed cure amount 

is listed with an incorrect amount, you must object in accordance with the procedures 

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described in this notice by no later than the objection deadline set forth below under the 

heading “Important Dates and Deadlines.” 

B. Adequate Assurance of Future Performance 

Section 365(a) of the Bankruptcy Code conditions assignment on the Winning Bidder 

providing “adequate assurance of future performance.” Counterparties to Designated Contracts 

may request adequate assurance of future performance by the Winning Bidder or Backup Bidder 

by contacting counsel to the Debtors, Sidley Austin LLP, 2021 McKinney Ave #2000, Dallas, TX 

75201, Attn: Rakhee V. Patel (rpatel@sidley.com) and Jackson T. Garvey (jgarvey@sidley.com). 

Such adequate assurance may be provided on a confidential basis for all nonpublic information. If 

you object to assumption and assignment of your Designated Contract based solely on the

adequate assurance of future performance, you must object in accordance with the

procedures described in this notice by no later than the objection deadline set forth below

under the heading “Important Dates and Deadlines.” 

To the maximum extent permitted by law, to the extent any provision in any Designated 

Contract assumed and assigned pursuant to the Sale Order restricts or prevents, or purports to 

restrict or prevent, or is breached or deemed breached by, the assumption or assumption and 

assignment of such Designated Contract (including any “change in control” provision), then such 

provision shall be deemed modified such that the transactions contemplated by the Sale Order and 

any definitive documentation for the Sale shall not entitle the non-Debtor party to terminate such 

Designated Contract or to exercise any other default-related rights with respect, unless such 

non-Debtor party properly and timely files an objection and such objection is not overruled, 

withdrawn or otherwise resolved. 

Important Dates and Deadlines3

The Bid Procedures Order and Assumption and Assignment Procedures include a number 

of dates and deadlines, only a few of which are highlighted here: 

• Deadline to Object to the Sale. Objections to the Sale (or the assumption and assignment of 

any Designated Contract, including objections to the proposed cure amount of the Designated 

Contracts on Schedule 3 must be filed with the Court by January 25, 2024, at 4:00 p.m. 

(prevailing Central Time) and otherwise meet the requirements set forth in the Bid Procedures 

Order. Objections solely based on the adequate assurance of future performance by the 

Winning Bidder or Backup Bidder must be filed with the Court by January 30, 2024, at 4:00 

p.m. (prevailing Central Time).

• Any objection to the assumption and assignment of a Designated Contract must: (a) be in 

writing; (b) comply with the Bankruptcy Code, Bankruptcy Rules, the Bankruptcy Local Rules, 

and any orders of the Court; (c) state the name and address of the objecting party and identify 

the Designated Contract at issue; (d) state, with particularity, the basis and nature of any 

objection to the assumption and assignment, cure cost, and/or adequate assurance of future 

3

 The following dates and deadlines may be extended by the Debtors by filing a notice with the Court, pursuant to the 

Bid Procedures. 

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performance; and (e) be filed with the Court with proof of service thereof so as to be actually 

received on or before the objection deadline. 

• Sale Hearing. A hearing to consider approval of the proposed Sale (including assignment of 

Designated Contracts) will be held before the Court on February 1, 2024, at 9:30 a.m.

(prevailing Central Time) in Courtroom #1, 14th Floor, Earle Cabell Federal Building, 1100 

Commerce Street, Suite 1254, Dallas, Texas, 75242. Participation in the hearing may be in 

person or by an audio and video connection, as set forth in the Bid Procedures Motion. 

Consequences of Failing to Timely Assert an Objection

Except as otherwise ordered by the Court, any party or entity that fails to timely make an 

objection to the Sale on or before the objection deadline in accordance with the Bid Procedures 

Order and this notice shall be forever barred from asserting any objection to the Sale, including 

with respect to (a) the transfer of the assets free and clear of all liens, claims, encumbrances, and 

other interests and (b) the assumption and assignment of a Designated Contract, proposed cure 

amount, or adequate assurance of future performance. Any counterparty to a Designated Contract 

that fails to object to the proposed assumption and assignment by the objection deadline will be 

deemed to assent to the assumption of the Designated Contract on the terms defined in this Notice.

Assumption and assignment of any Designated Contract shall result in the full release 

and satisfaction of any cures, claims, or defaults, whether monetary or nonmonetary, 

including defaults of provisions restricting the change in control or ownership interest 

composition or any bankruptcy-related defaults, arising at any time prior to the effective 

date of assumption. Any and all proofs of claim based upon executory contracts or unexpired 

leases that have been assumed in the chapter 11 cases, including pursuant to the Sale Order, 

shall be deemed disallowed and expunged as of the later of (1) the date of entry of an order 

of the Court (including the Sale Order) approving such assumption and (2) the effective date 

of such assumption without the need for any objection or any further notice to or action, 

order, or approval of the Court.

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Dated: [●], 2024

Dallas, Texas SIDLEY AUSTIN LLP

/s/ [DRAFT]

Samuel A. Newman (admitted pro hac vice)

555 West Fifth Street

Los Angeles, California 90013

Telephone: (213) 896-6000

Facsimile: (213) 896-6600

Email: sam.newman@sidley.com

Rakhee V. Patel (TX Bar No. 00797213)

Nathan C. Elner (admitted pro hac vice)

Parker G. Embry (TX Bar No. 24126826)

Chelsea M. McManus (TX Bar No. 24131499)

2021 McKinney Avenue, Suite 2000

Dallas, Texas 75201

Telephone: (214) 981-3300

Facsimile: (214) 981-3400

Email: rpatel@sidley.com

nelner@sidley.com

parker.embry@sidley.com

cmcmanus@sidley.com

Jackson T. Garvey (admitted pro hac vice)

One South Dearborn

Chicago, IL 60603

Telephone: (312) 853-7000

Facsimile: (312) 853-7036

Email: jgarvey@sidley.com

Proposed Counsel to the Debtors and Debtors in 

Possession

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SCHEDULE 1

Notice of Winning Bid 

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SCHEDULE 2

Designated Contract(s)

Title and/or Description

Counterparty Name 

and Address Proposed Cure Cost (if any) 

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SCHEDULE 3

[Forthcoming] 

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