Asset Purchase Agreement, dated as of December 8, 2020, between the Company and Roman Health Ventures Inc

ASSET PURCHASE AGREEMENT



BY AND BETWEEN



ROMAN HEALTH VENTURES INC.



AND



VERU INC.







DATED AS OF DECEMBER 8, 2020













 

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TABLE OF CONTENTS

 

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Annexes

Annex AAssumed Business Contracts

Annex BBusiness Copyrights

Annex CBusiness Domain Names

Annex DBusiness Know-How

Annex EBusiness Patent Rights

Annex FBusiness Trademarks

Annex GExcluded Business Contracts

Annex HExcluded Post-Closing Payable; Excluded Post-Closing Receivable

Annex IPre-Closing Customer Advances

Annex JPre-Closing Supplier Advances

Annex KSeller Marks



Exhibits

Exhibit AForm of Note A

Exhibit BForm of Note B

Exhibit CPurchase Price Allocation

Exhibit DForm of Bill of Sale

Exhibit EForm of Assignment and Assumption Agreement

Exhibit FForm of Mutual Release









 

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ASSET PURCHASE AGREEMENT



THIS ASSET PURCHASE AGREEMENT (this “Agreement”) is made and entered into as of December 8, 2020 by and between ROMAN HEALTH VENTURES INC., a Delaware corporation (“Buyer”), and VERU INC., a Wisconsin corporation (“Seller”). 



RECITALS









AGREEMENTS



In consideration of the Recitals and the mutual agreements set forth below, the Parties agree as follows:



1.Defined Terms; Construction.



1.01Defined Terms.  Certain terms used in this Agreement are defined below:



“Acquired Assets” means all of the assets, properties and rights of Seller and its Subsidiaries primarily related to the Business, whether tangible or intangible, real, personal or mixed, which in any event shall include all of the following assets, properties and rights (but excluding any Excluded Assets, as defined below), whether or not any of such assets, properties or rights have any value for accounting purpose or are carried or reflected on or specifically referred to in Seller’s or its applicable Subsidiary’s books or financial statements:









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“Affiliate” means, with respect to a Person, any other Person that controls, is controlled by, or is under common control with, such first Person.  The term “control” (including the terms “controlled by” or “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through ownership of voting securities, membership interests, by contract or otherwise.



“Business Copyrights” means all Copyrights that are owned or controlled by Seller or its Subsidiaries as of the Closing and that are necessary for, used for, held for use for or primarily related to the Business, including the Copyrights set forth on Annex B.



“Business Day” means any day that is not a Saturday or Sunday, or any other day on which banks are required or authorized by Law to be closed in New York, New York or Miami, Florida.



“Business Domain Names” means all Domain Names owned or controlled by Seller or its Subsidiaries as of the Closing that are necessary for, used for, held for use for or primarily related to the Business, including the Domain Names set forth on Annex C.

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“Business Intellectual Property” means the Business Copyrights, the Business Domain Names, the Business Know-How, the Business Patent Rights and the Business Trademarks.



“Business Inventory” means all saleable finished units of the Business Products (together with any packaging materials thereon) labeled and held for sale that is owned as of the Closing by Seller or any of its Subsidiaries, wherever located, that has not been sold to a third party.



“Business Know-How” means any Know-How owned or controlled by Seller or its Subsidiaries necessary for, used for, held for use for or primarily related to the Business, including the Know-How set forth on Annex D.



“Business Patent Rights” means any Patent Rights owned or controlled by Seller or any of its Subsidiaries necessary for, used for, held for use for or primarily related to the Business, including the Patent Rights set forth on Annex E.



“Business Regulatory Documentation” means all (a) documentation concerning regulatory approvals and all source data and reports from clinical trials of the Business Product, to the extent that such source data is in the possession or control of Seller or any of its Subsidiaries, regulatory applications, submissions and filings in connection therewith, (b) correspondence and reports related to the Business Product or otherwise relevant to the ability to commercially distribute, sell or market the Business Product submitted to, received from, or required to be retained by any Governmental Authorities (including minutes and official contact reports relating to any communications with any Governmental Authority) and relevant supporting documents with respect to such correspondence and reports, including, but not limited to, all regulatory registrations and listings, materials submitted to FDA under FDA Form 2253, final versions of advertising and promotion materials, documents demonstrating compliance with manufacturing, formulation, and advertising regulatory requirements, and adverse drug experience reports (periodic and expedited) and related records, and (c) data (including clinical trial and pre-clinical data) referenced in any of the foregoing, in each case (clauses (a), (b) and (c)), to the extent in the possession or control of Seller or any of its Subsidiaries;  provided that the Business Regulatory Documentation shall not be deemed to include any correspondence, reports, documents or data to the extent applicable Law prohibits their transfer or where transfer thereof would subject Seller or any of its Affiliates to Liability of any material kind or nature.



“Business Trademarks” means all Trademarks owned or controlled by Seller or its Subsidiaries as of the Closing that are necessary for, used for, held for use for or primarily related to, the Business, including the Trademarks listed on Annex F, but excluding the Seller Marks.



“Cash” means all cash and cash equivalent items of Seller, including checking account balances, bank account balances, safety deposit boxes, certificates of deposit and similar items held or maintained by Seller.



“Closing Date” means the date on which the Closing occurs.



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

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“Confidential Information” means any confidential or proprietary information, including any formula, pattern, device, compilation or information, proprietary technical, economic, environmental, operational, financial, technology, operating, financial and/or other business information, methods of operation, financial statements, trade secrets, market studies and forecasts, competitive analyses, target markets, advertising techniques, pricing policies and information, specifications for products, equipment and processes, manufacturing and performance specifications and procedures, engineering drawings and graphs, technical, research and engineering data, manufacturing know-how, the substance of agreements with customers and others, marketing and similar arrangements, servicing and training programs and arrangements, customer lists, customer profiles, customer preferences, other trade secrets and any other documents or materials embodying such information, employee census information and, as required by applicable Law, other employee information.



“Contracts” means contracts, agreements, purchase orders, leases, licenses and instruments or other binding arrangement, whether oral or written.



“Copyright” means all copyrights and all rights in any copyrightable works, in all forms and media, including html and web content, and any copyright registrations or applications therefor and all extensions, restorations, reversions and renewals of any of the foregoing.



“Data Protection Laws” means the data protection and privacy laws of each country where the Seller is established and those of each country where any Personal Information is collected, transmitted, secured, stored, shared or otherwise processed by or on behalf of the Seller and that are applicable to the Seller, including, as applicable, the Health Insurance Portability and Accountability Act of 1996 (42 U.S.C. § 1320d et seq.), as amended by the Health Information Technology for Economic and Clinical Health Act 42 U.S.C. §§ 17921 et seq. (collectively, “HIPAA”) the General Data Protection Regulation 2016/680 of the European Parliament, and shall also mean the Massachusetts data protection law, 201 CMR 17.00, the California Consumer Privacy Act, and Section 5 of the (U.S.) Federal Trade Commission Act and any and all laws and regulations governing privacy, cybercrime, data protection or privacy, or unfair or deceptive trade practices with respect to privacy, data protection, or information security.



“Data Room” means the PREBOOST Donnelley Financial Services virtual data room established by Seller in connection with the transactions contemplated by this Agreement.



“Domain Names” means any and all internet or global computing network addresses or locations, including all generic top-level domains and country code top-level domains.



“Effective Time” means 11:59 p.m. New York time on the Closing Date.



“Encumbrance” means any lien, security interest, pledge, charge, hypothecation, mortgage or similar encumbrance, except to the extent: (a) relating to Taxes not due as of the Effective Time or the validity of which are being contested in good faith by appropriate proceedings; (b) imposed by Law for ad valorem, property or other Taxes that are not yet due and payable; (c) of any mechanics’, workmen’s, repairmen’s, warehousemen’s, processor’s, landlord’s, carrier’s, maritime, materialmen’s, consignee’s or other like encumbrances (including

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all statutory encumbrances arising or incurred in the Ordinary Course of Business and related to amounts that are not delinquent); (d) arising in connection with worker’s compensation, unemployment insurance, old age pensions and social security benefits which are not due as of the Effective Time; (e) of any non-exclusive, non-perpetual licenses, leases and subleases of property and assets in the Ordinary Course of Business; (f) incurred by or resulting solely from the actions of Buyer; or (g) municipal and zoning ordinances and agreements entered into under them, access easements, easements for the distribution of utility and municipal services, recorded building and use restrictions and covenants.



“Excluded Assets” means any and all of the following:



























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“Excluded Post-Closing Payable” means the third party payable with respect to Business Products shipped after the Effective Time, which will be payable to the contract manufacturer, in the amount and pursuant to the purchase order issued by Seller as set forth on Annex H under the heading “Excluded Post-Closing Payable.”



“Excluded Post-Closing Receivable” means the third party receivable with respect to Business Products shipped after the Effective Time, which will be payable by the customer, in the amount and pursuant to the purchase order issued to Seller as set forth on Annex H under the heading “Excluded Post-Closing Receivable.”



“Fraud”  means actual and intentional fraud, and more specifically, as used with respect to this Agreement, shall be limited to a knowing and intentional misrepresentation with the intent that the other Party (i.e., Buyer or Seller, as applicable) rely thereon, and for the avoidance of doubt, does not include constructive fraud or other claims based on constructive knowledge, negligent misrepresentation, recklessness or similar theories.    



“GAAP” means generally accepted accounting principles in the United States of America as in effect on the date hereof.



“Governmental Authority” means any foreign or United States federal, provincial, state, municipal or local government agency, division, or subdivision thereof or any regulatory body, agency, authority or commission entitled to exercise any administrative, executive, judicial, legislative, police, regulatory or taxing authority or power, or any court or tribunal (or any department, bureau or division thereof).



“Health Care Laws” means (a) the Federal Food, Drug, and Cosmetic Act, as amended (the “FDCA”), and all rules and regulations promulgated or issued thereunder, (b) all other applicable Laws, rules and regulations, ordinances, judgments, decrees, orders, writs and injunctions administered by the United States Food and Drug Administration (the “FDA”) and other United States regulatory authorities, including the Federal Trade Commission and the Consumer Product Safety Commission,  governing or relating to good laboratory practices, good clinical practices, recordkeeping, the manufacture, import, export, testing, development, approval, processing, reporting, packaging, labeling, storage, marketing, sale, distribution and use of any compounds or products manufactured by or on behalf of Seller, including, without limitation, FDA’s current Good Manufacturing Practice Regulations for drugs at 21 C.F.R. Parts 210 and 211, and (c) any and all other applicable federal, state, local, health care Laws, rules and regulations, ordinances, judgments, decrees, orders, writs, and injunctions, each of (a) through (c) as may be amended from time to time.



“Indebtedness” means (a) all obligations for borrowed money, whether current or funded, secured or unsecured, (b) all obligations for the deferred purchase price of any property or services, including earn outs, payments under non-compete agreements and seller notes (other than trade accounts payable reflected on the balance sheet of such Person as current liabilities arising in the ordinary course of business consistent with past practice of such Person from the purchase of inventory and supplies), (c) all obligations created or arising under any conditional sale or other title retention agreement regarding property acquired by such Person, (d) all obligations secured by a purchase money mortgage or other lien to secure all or part of the purchase price of property

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subject to such mortgage or lien, (e) all obligations under leases required to be, in accordance with GAAP, recorded as capital leases under which such Person is liable as lessee, (f) any obligation regarding bankers’ acceptances or letters of credit, whether drawn or not, (g) any obligations secured by liens on property acquired by such Person, whether or not such obligations were assumed by such Person at the time of acquisition of such property, (h) all obligations of a type referred to in clauses (a) through (g) above which are directly or indirectly guaranteed by such Person or which it has agreed (contingently or otherwise) to purchase or otherwise acquire or in respect of which it has otherwise assured a credit against loss, (i) interest, principal, prepayment penalty, taxes, fees, or expenses, to the extent due or owing in respect of those items in clauses (a) through (h) above, whether resulting from their payment or discharge or otherwise, and (j) any refinancing of any of the foregoing obligations.  For the avoidance of doubt, the Post-Closing Payables included in the Assumed Liabilities are not “Indebtedness” hereunder.



“Intellectual Property” means all intellectual property and other similar proprietary rights in any jurisdiction, whether owned or held for use under license, whether registered or unregistered, including all United States and foreign (a) patents and patent applications, (b) trademarks, service marks, trade names, and trade dress, (c) copyrights, including copyrights in computer software, (d) Internet domain names, (e) registrations and applications for registration of the foregoing, (f) trade secrets and confidential information, (g) inventions not subject to a patent or patent application, (h) unregistered works of authorship, and (i) computer software and documentation.



“Know-How” means any data, results, technology, business or financial information or information of any type whatsoever, in any tangible or intangible form, including know-how, trade secrets, art files, practices, techniques, methods, assays, techniques, processes, protocols, inventions, discoveries, improvements, developments, specifications, formulations, formulae, algorithms, marketing reports, business plans, expertise, technology, test data (including pharmacological, biological, chemical, biochemical, medical, toxicological, preclinical, and clinical test data and any other research or development data), standard operating procedures, manufacturing records, stability data and other study data and procedures.



“Knowledge,” “known to Seller,” “Seller’s Knowledge,” of which Seller “knows,” or the like, means the actual knowledge of Harry Fisch, Phil Kuhn, Alistair Rawson, Mitchell Steiner, Kevin Gilbert, Michele Greco, Phil Greenberg and Robert Getzenberg and the knowledge such aforementioned individuals would have after reasonable inquiry of his or her direct reports.



“Legal Requirement” or “Law”  means any foreign government or any United States federal, provincial, state, municipal or local (a) law, common law, statute, directive, ordinance, code, rule or regulation, (b) judicial, administrative or governmental order determination, writ, injunction, restrictions, judgments or decrees, or (c) any similar provision having the force or effect of law, in each case of clauses (a), (b) or (c), as promulgated or applied by a Governmental Authority.



“Liability” means any liability, debt, obligation, deficiency, interest, Tax, penalty, fine, claim, demand, judgment, cause of action or other damages (including loss of benefit or relief), cost or expenses or commitment of any nature whatsoever (whether direct or indirect, known or unknown, accrued or unaccrued, absolute or contingent, or matured or unmatured,

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regardless of when asserted), including any of the foregoing arising under any Legal Requirement, Permit, Proceeding, Order or Contract.



“Material Adverse Effect”  means any event, circumstance, development, change, effect or condition that, individually or in the aggregate, (a) has had, or would reasonably be expected to have, a material adverse effect on:  the business, condition (financial or otherwise), assets, Liabilities or results of operations of the Business, taken as a whole, or (b) has materially and adversely impaired or delayed, or would reasonably be expected to materially and adversely impede or delay, the ability of Seller to perform its obligations hereunder or consummate the transactions contemplated hereby; provided,  however, that any event, circumstance, development, change, effect or condition arising from or relating to the following will not be taken into account in determining whether there has been or will be a Material Adverse Effect:  (i) general economic conditions affecting the industry in which the Business participates, or the United States economy as a whole; (ii) changes in U.S. generally accepted accounting principles after the date hereof; (iii) changes after the date hereof in Law; (iv) national or international political conditions, including armed hostilities or other international or national calamity or act of terrorism involving the United States of America; (v) general changes in financial, banking, or securities markets; (vi) wildfires, floods, epidemics, pandemics (including the COVID‑19 pandemic) earthquakes, hurricanes, tornados or other natural disasters; (vii) any failure to meet any financial projections, forecasts or estimates of revenue, earnings, cash flow or cash position (it being understood that any underlying cause(s) of any such failure may be taken into consideration when determining whether a Material Adverse Effect has occurred); (viii) compliance with the terms of, or taking any action required by, this Agreement; and (ix) any action taken by any customer or supplier resulting from the announcement, pendency or consummation of the transactions contemplated by this Agreement; provided further, that, in the case of each of clauses (i), (ii), (iii), (iv), (v), and (vi), such change, event, occurrence, development or state of circumstances or facts does not have a materially disproportionate effect on the Business, taken as a whole, relative to other Persons of similar size in the industry in which the Business operates.



“Note A” means the Promissory Note, dated as of the date hereof, issued by Buyer and payable to the order of Seller in the original principal amount of $2,500,000, in the form attached as Exhibit A hereto.



“Note Amounts” means $5,000,000.



“Note B” means the Promissory Note, dated as of the date hereof, issued by Buyer and payable to the order of Seller in the original principal amount of $2,500,000, in the form attached as Exhibit B hereto.



“Order” means any decree, ruling, order, judgment, writ, award, injunction, stipulation or consent of or by, or settlement agreement with, a Governmental Authority.



“Ordinary Course of Business” means the ordinary course of business consistent with past customs and practices of Seller with respect to the Business.



“Organizational Documents” means (a) the articles or certificate of incorporation and the bylaws of a corporation; (b) the partnership agreement and any statement of partnership of

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a general partnership; (c) the limited partnership agreement and the certificate or articles of limited partnership of a limited partnership; (d) the limited liability partnership agreement and the certificate or articles of limited liability partnership of a limited liability partnership; (e) the operating agreement or limited liability company agreement and the articles of organization or certificate of formation of a limited liability company; (f) any charter or similar document adopted or filed in connection with the creation, formation or organization of a Person; and (g) any amendment to any of the foregoing.



“Party” or “Parties” means each and both of Buyer and Seller.



“Patent Rights” means (a) all national, regional and international patents and patent applications, including provisional patent applications; (b) all patent applications filed either from such patents, patent applications or provisional applications or from an application claiming priority from either of these, including divisionals, continuations, continuations-in-part, provisionals, converted provisionals and continued prosecution applications; (c) any and all patents that have issued or in the future issue from the foregoing patent applications ((a) and (b)), including utility models, petty patents, innovation patents and design patents and certificates of invention; (d) any and all extensions or restorations by existing or future extension or restoration mechanisms, including revalidations, reissues, re-examinations and extensions (including any supplementary protection certificates and the like) of the foregoing patents or patent applications ((a), (b) and (c)); and (e) any similar rights, including so-called pipeline protection or any importation, revalidation, confirmation or introduction patent or registration patent or patent of additions to any of such foregoing patent applications and patents.



“Permits” means all licenses, approvals, permits, product registrations, certifications and authorizations (and any applications for the foregoing) issued by a Governmental Authority or other recognized standard setting body.



“Person” means any individual or any general partnership, limited partnership, limited liability partnership, limited liability company, corporation, joint venture, trust, business trust, cooperative or association, Governmental Authority or any foreign trust or foreign business organization, and the heirs, executors, administrators, legal representatives, successors, and assigns of such “Person” where the context so permits.



“Personal Information” means any information that identifies or can be used to identify a natural person, including any information defined as “personal data,” “personally identifiable information,” “personal information,” “protected health information,” or “nonpublic personal information” under applicable Data Protection Laws.



“Post-Closing Payables” means any third party payables with respect to the Business that relate to Business Products shipped after the Effective Time, but excluding the Excluded Post-Closing Payable.



“Post-Closing Receivables” means any third party receivables with respect to the Business that relate to Business Products shipped after the Effective Time, but excluding the Excluded Post-Closing Receivable.

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“Pre-Closing Customer Advances” means all customer deposits and advances received by Seller prior to the Closing with respect to Business Products that have not been shipped as of the Effective Time, a correct and complete list of which is set forth on Annex I.



“Pre-Closing Payables” means any third party payables with respect to the Business that relate to Business Products shipped before the Effective Time.



“Pre-Closing Receivables” means any third party receivables with respect to the Business that relate to Business Products shipped before the Effective Time.



“Pre-Closing Supplier Advances” means all advances and pre-paid expenses to, and accrued rebates and credits from, suppliers of the Business paid by Seller prior to the Closing with respect to Business Products that have not been shipped as of the Effective Time, a correct and complete list of which is set forth on Annex J.



“Pre-Closing Taxes” means (a) all Taxes of Seller, including any Taxes of Seller that arise from the transactions contemplated by this Agreement; (b) all Taxes imposed on the Acquired Assets or that otherwise arise with respect to the Business, in each case, for Pre-Closing Tax Periods, (c) Transfer Taxes for which Seller is liable pursuant to Section 9.04 and (d) all Taxes required to be withheld or deducted under the Code or any other Tax Law in connection with the transactions contemplated by this Agreement.



“Pre-Closing Tax Period”  means any taxable period (or portion thereof) ending on or before the Closing Date.



“Proceeding” means (a) any claim, dispute, demand, complaint, action, arbitration, lawsuit, hearing or other proceeding before, commenced by or filed with a Governmental Authority, or (b) any investigation, inquiry, charge, audit or examination involving a Governmental Authority.



“Product Formulation” means the identity and the amount of each of the constituent active and inactive ingredients in the Business Product and the manner in which they are combined.



“Restricted Business” means producing, manufacturing, processing, transporting, distributing, promoting, marketing, commercializing, selling or otherwise disposing of any over-the-counter treatment for delaying orgasm or premature ejaculation or otherwise marketed pursuant to 21 C.F.R. Part 348. 



“Roman Distributor Agreement” means that certain Amended and Restated Distributor Agreement dated February 11, 2019 between Buyer and Seller.



“Seller Marks” means the trade names, corporate names and corporate logos of Seller or its Subsidiaries that are used by Seller or any of its Subsidiaries that are not used primarily in connection with the Business, including those Trademarks listed on Annex K.



“Seller’s Transaction Expenses” means (a) all fees, costs, expenses and Liabilities of any Person incurred by or on behalf of Seller (or its Affiliates) in connection with or arising from the negotiation, documentation and consummation of the transactions contemplated by this

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Agreement, including any investment banking fees, financial advisory fees, brokerage fees, commissions, finder’s fees, attorneys’ fees and expenses, accountants’ fees and expenses or similar fees; (b) any obligation of Seller (or its Affiliates) to pay any Person consideration in connection with the closing of the transactions contemplated by this Agreement under any incentive compensation plan, equity appreciation rights plan or agreement, employment agreement, deferred compensation plan or agreement, supplemental executive compensation agreement, phantom equity plan or agreement, sale, “stay-around,” “change-in-control,” severance, retention, or similar bonuses or payments to current or former directors, officers, employees and consultants; (c) any employment and related Taxes imposed on Seller in connection with the payment of any of the obligations pursuant to clause (a) or (b) of this definition; and (d) fifty percent (50%) of any Transfer Taxes in accordance with Section 9.04.



“Subsidiary” means each subsidiary of Seller that has any right, title or interest in or to any Acquired Asset or any Assumed Liability.



“Tax” or “Taxes” means any foreign, federal, state or local income, gross receipts, license, occupancy, payroll, employment, escheat, excise, severance, stamp, occupation, premium, windfall profits, environmental, customs duty, capital gains, capital stock, franchise, unincorporated business, profits, withholding, social security, unemployment, disability, workers’ compensation, real property, personal property, ad valorem, sales, use, transfer, registration, value added, alternative or add-on minimum, accumulated earnings, personal holding company, annual report, estimated, or other tax, charge, fee, impost, levy or assessment in the nature of taxes, including any interest, penalty, or addition thereto, whether disputed or not, including any Taxes imposed as a result of being a transferee, successor, or a member of any affiliated, consolidated, unitary, combined or other group, by Contract, pursuant to Law or otherwise.



“Tax Return” means all returns, declarations, reports, estimates, information returns and statements required to be filed in respect of any Taxes including any schedule or attachment thereto, and including any amendment thereof.



“Trademark” means any word, name, symbol, color, product shape, designation or device or any combination thereof that functions as a source identifier, including all trademarks, service marks, trade names, brand names, sub-brand names, trade dress rights, product configuration rights, certification marks, collective marks, logos, taglines, slogans, designs or business symbols and all words, names, symbols, colors, shapes, designations or any combination thereof that function as an identifier of source or origin or quality, whether or not registered, and all statutory and common law rights therein, and all registrations and applications therefor, and all goodwill associated therewith and symbolized thereby.



“Transaction Documents” means this Agreement, Note A, Note B, the Bill of Sale, the Assignment and Assumption Agreement, the Mutual Release, the Non-Compete Agreements and any other agreement, document, certificate or instrument to be executed or delivered pursuant to this Agreement.



Each of the following terms is defined in the Section of this Agreement set forth opposite such term:





1.02Construction. In this Agreement (except where the context otherwise requires):



(a)any reference to a Recital, Section, Annex, Exhibit or Schedule is to the relevant Recital, Section, Exhibit or Schedule of or to this Agreement and any reference to a

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subsection or paragraph is to the relevant subsection or paragraph of the Section, Exhibit or Schedule in which it appears;



(b)any reference to legislation or any provision of any legislation shall include any modification, amendment, re-enactment thereof, any legislative provision substituted therefore and all rules, regulations and statutory instruments issued or related to such legislation;



(c)the Section headings are included for convenience only and shall not modify or affect the construction or interpretation of this Agreement;



(d)all references to accounting terms, including “GAAP” shall mean the then-current common usage of such terms in the United States;



(e)references to “Dollars” or “$” shall mean United States Dollars unless otherwise specifically noted;



(f)the words “include,” “includes” and “including” shall be deemed to be immediately followed by the term “but not limited to”;



(g)the words “hereof,” “herein” and “hereunder” and words of similar import shall be deemed to refer to this Agreement as a whole and not any particular provision of this Agreement;



(h)the use of the word “or” shall not be exclusive;



(i)the word “will” shall be construed to have the same meaning and effect as the word “shall”;



(j)terms defined in the singular shall have a comparable meaning when used in the plural and vice versa; and



(k)the language used in this Agreement shall be deemed to be the language chosen by the Parties hereto to express their mutual intent, and if an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the Parties hereto and no presumption or burden of proof will arise favoring or disfavoring any Person by virtue of the authorship of any of the provisions of this Agreement.



2.Sale of Assets.  Subject to the terms and conditions of this Agreement, at the Closing, Seller shall, and shall cause its Subsidiaries, as applicable, to, irrevocably sell, transfer, convey, assign and deliver to Buyer, free and clear of all Encumbrances, and Buyer shall purchase from Seller and its Subsidiaries, as applicable, all of the right, title and interest in, to and under the Acquired Assets that Seller or any of its Subsidiaries owns, leases, licenses, possesses or uses and has the right to transfer as of the Effective Time, wherever located.



3.Assets Excluded From Transaction. The Parties acknowledge and agree that the Excluded Assets shall be excluded from the transactions contemplated by this Agreement, shall not be included in the Acquired Assets, and shall be retained by Seller.

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4.Excluded Liabilities; Assumption of Liabilities; Non-Assignable Assets.



4.01Excluded Liabilities. Except as specifically provided in Section 4.02, Buyer shall not assume, nor be obligated to pay, perform or discharge, any Liabilities of Seller or any of its Affiliates, whether actual, contingent or accrued, known or unknown, which Liabilities shall be retained by Seller and its Affiliates, as applicable (such retained Liabilities shall hereafter be referred to as the “Excluded Liabilities”). For the avoidance of doubt, and without limiting the generality of the preceding sentence, the Excluded Liabilities shall include all of the following:



(a)all Liabilities arising out of or relating to the Excluded Assets;



(b)all Pre-Closing Payables;



(c)the Excluded Post-Closing Payable;



(d)all Indebtedness of Seller and its Affiliates;



(e)all Seller’s Transaction Expenses;



(f)all Liabilities arising out of or relating to the employment, potential employment or termination of employment of any Person arising out of or relating to the operation or conduct of the Business prior to the Effective Time;



(g)all Pre-Closing Taxes;



(h)all Liabilities arising out of or relating to the Assumed Contracts to the extent such Liabilities (i) arose before the Effective Time or (ii) arose out of or relate to a breach of or default under an Assumed Contract that occurred before the Effective Time ((i) and (ii), the “Excluded Contract Liabilities”);



(i)all Liabilities arising out of or relating to any Proceeding (i) pending at the Effective Time or (ii) initiated after the Effective Time to the extent relating to Seller’s ownership of the Acquired Assets or the operation or conduct of the Business prior to the Effective Time;



(j)all Liabilities resulting from any products manufactured or sold with respect to the Business, including the Business Product, prior to Closing, including any product liability claim or recall;



(k)all Liabilities of Seller that are unrelated to the Business; and



(l)all Liabilities of any Affiliates of Seller.



4.02Assumed Liabilities. Subject to the terms and conditions of this Agreement, Buyer shall, at the Closing, assume and pay, perform and discharge only the following obligations and Liabilities of Seller (the “Assumed Liabilities”): 



(a)all Post-Closing Payables; and



(b)all obligations arising after the Effective Time under the Assumed Contracts

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(to the extent such Contracts are properly and effectively assigned to Buyer), but not including any Excluded Contract Liabilities.



4.03Non-Assignable Assets.



(a)Notwithstanding anything to the contrary in this Agreement, but subject to the remaining provisions of this Section 4.03, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery to Buyer of any Acquired Asset would require the consent or authorization of a Person who is not a party to this Agreement (including any Governmental Authority), and such consent shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery of such Acquired Asset, unless and until such consent has been obtained or Buyer has notified Seller that any such Acquired Asset should be transferred or assigned hereunder notwithstanding the absence of such consent.



(b)Following the Closing, Seller and Buyer shall use commercially reasonable efforts, and shall cooperate with each other, to obtain any such required consent, or any release, substitution or amendment required to novate all Liabilities under any and all Acquired Assets, and all other Liabilities, that constitute Assumed Liabilities, or to obtain in writing the unconditional release of all parties to such arrangements. Once such consent, release, substitution or amendment is obtained with respect to such Acquired Asset, Seller shall sell, assign, transfer, convey and deliver to Buyer the relevant Acquired Asset to which such consent, release, substitution or amendment relates for no additional consideration.



(c)To the extent that any Acquired Asset or Assumed Liability cannot be transferred to Buyer following the Closing pursuant to this Section 4.03, Seller and Buyer shall use reasonable efforts to enter into such lawful and reasonable arrangements (such as subleasing, sublicensing or subcontracting) to provide to the Party the economic and, to the extent permitted under applicable Law, operational equivalent of the transfer of such Acquired Asset and/or Assumed Liability to Buyer as of the Effective Time and the performance by Buyer of its obligations with respect thereto.  Without limiting the generality of the foregoing, (i) Seller shall (a) promptly pay or cause to be paid to Buyer all monies received by Seller with respect to any such Acquired Asset or Assumed Liability and (b) enforce, at the written request and at the sole expense of Buyer, any rights of Seller arising with respect thereto, and (ii) to the extent Buyer receives the benefit of any such Acquired Asset, Buyer shall perform and discharge on behalf of Seller all of Seller’s Liabilities, if any (other than any Liabilities to the extent arising in connection with the breach, nonperformance or defective performance by Seller of any Acquired Contract), thereunder relating to the period following the Effective Time, in accordance with the provisions thereof.



(d)From time to time following the Closing, Seller and Buyer shall, and shall cause their respective Affiliates to, execute, acknowledge and deliver all such further conveyances, notices, assumptions, releases, acquittances and other instruments, and shall take such further actions, as may be necessary or appropriate to transfer fully to, and vest in, Buyer and each of its successors or assigns, all of the properties, rights, titles, interests, estates, remedies, powers and privileges intended to be conveyed to Buyer under this Agreement and to assure fully to Seller and

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its Affiliates and each of their respective successors and assigns, the assumption of the liabilities and obligations intended to be assumed by Buyer under this Agreement, and to otherwise make effective the transactions contemplated hereby (including transferring to Buyer any asset or liability contemplated by this Agreement to be an Acquired Asset or an Assumed Liability, respectively, which was erroneously or inadvertently not transferred to Buyer at the Closing).



5.Purchase Price; Closing; Allocation.



5.01Purchase Price. In consideration of the transactions described in Section 2, and the performance by Seller of all of the terms, covenants and provisions of this Agreement on its part to be kept and performed, Buyer shall pay to Seller, in accordance with Section 5.02(b), an aggregate amount equal to: (a) Twenty Million and 00/100 Dollars ($20,000,000.00), minus (b) the Pre-Closing Customer Advances, plus (c) the Pre-Closing Supplier Advances (collectively, the “Purchase Price”).



5.02Closing; Closing Payments.



(a)Closing. The closing of the transactions contemplated by this Agreement (“Closing”) shall take place via the remote exchange of documents and signature pages on the date hereof. The Closing shall be deemed to be effective as of the Effective Time.



(b)Closing Payment to Seller. At the Closing, Buyer shall pay to Seller, in cash by wire transfer of immediately available funds to an account designated by Seller in writing at least one Business Day prior to the Closing Date, an aggregate amount equal to (i) the Purchase Price, minus (ii) the Note Amounts (collectively, the “Closing Payment”).



5.03Allocation.  For Tax purposes, the Parties agree that the Purchase Price, together with any other amounts that are properly treated as purchase price for U.S. federal income tax purposes, are required to be allocated under applicable Law, shall be allocated among the Acquired Assets in the manner mutually agreed upon by the Parties using the methodology set forth on Exhibit C hereto (the “Purchase Price Allocation”).  Buyer and Seller will (and will cause their Affiliates to) (a) prepare and file all Tax Returns in a manner consistent with the Purchase Price Allocation and (b) not take any position inconsistent therewith on any Tax Return or in connection with any Tax proceedings or otherwise, in each case, except to the extent otherwise required by applicable Legal Requirements. If the amount treated as purchase price for U.S. federal income tax purposes is subsequently adjusted pursuant to Section 10 or any other provision of this Agreement, the Purchase Price Allocation shall be further adjusted in the manner consistent with the procedures set forth in the methodology described on Exhibit C.



5.04Withholding.  Notwithstanding any other provision of this Agreement, Buyer shall be entitled to deduct and withhold from the cash otherwise deliverable under this Agreement, and from any other consideration otherwise paid or delivered to any Person in connection with the transactions contemplated by this Agreement, such amounts that Buyer is required to deduct and withhold with respect to any such deliveries and payments under the Code or any provision of any other Tax Law.  If Buyer determines that Tax withholding is required pursuant to this Section 5.04, Buyer shall use commercially reasonable efforts to provide notice thereof to Seller promptly following such determination, and such notice shall include the applicable authority under which

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such withholding is required. To the extent that amounts are so withheld by Buyer, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made.    Buyer shall cooperate with any reasonable request from Seller to avoid or minimize any Tax withholding from the Purchase Price payable pursuant to this Agreement to the extent permitted by applicable Tax Law.



6.Deliveries at Closing.



6.01Deliveries by Seller at or Prior to Closing. Seller shall deliver or cause to be delivered to Buyer the following items at or prior to the Closing:



(a)a bill of sale, in the form attached as Exhibit D hereto (the “Bill of Sale”), duly executed by Seller;



(b)an assignment and assumption agreement, in the form attached as Exhibit E hereto (the “Assignment and Assumption Agreement”), duly executed by Seller;



(c)a mutual release with respect to the Roman Distributor Agreement, in the form attached as Exhibit F hereto (the “Mutual Release”), duly executed by Seller;



(d)assignments, in recordable form satisfactory to Buyer, of all registered Business Intellectual Property, duly executed by Seller;



(e)a certificate of status for Seller issued by the state of its formation dated within ten (10) days of the Closing Date;



(f)releases of all Encumbrances on any of the Acquired Assets (or a commitment by the applicable lender to release upon receipt of amounts due, as stated in any applicable payoff statement or instruction);



(g)the third-party consents set forth on the Consent Schedule;



(h)properly completed and executed Internal Revenue Service Form W-9 from Seller; and



(i)such other documents, certificates and instruments as Buyer may reasonably request to consummate the transactions contemplated by this Agreement.



6.02Deliveries by Buyer at or Prior to Closing. Buyer shall deliver or cause to be delivered to Seller the following items at or prior to the Closing:



(a)the Closing Payment, by wire transfer of immediately available funds to the account designated by Seller;



(b)the Assignment and Assumption Agreement, duly executed by Buyer;



(c)Note A, duly executed by Buyer;



(d)Note B, duly executed by Buyer; and

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(e)the Mutual Release, duly executed by Buyer.



7.Representations and Warranties of Seller.  Except as set forth in the applicable Schedule of the Disclosure Schedule, Seller represents and warrants to Buyer that the following statements are true and correct as of the date hereof:



7.01Organization. Seller is a corporation duly organized, validly existing and in current status under the Laws of the State of Wisconsin. Seller has all necessary corporate power and authority to carry on the Business as now conducted and to own and lease its properties and assets. Seller is duly licensed and qualified to do business in and is in good standing under the Laws of each state or other jurisdiction where the failure to do so not be material, individually or in the aggregate, to the Business, taken as a whole.



7.02Authorization of Agreement; No Violation.



(a)Seller has all requisite corporate power and authority to execute and deliver this Agreement and the other Transaction Documents to which it is a party and to consummate the transactions provided for herein and therein. The execution and delivery of this Agreement by Seller and the other Transaction Documents to be executed and delivered by Seller and the performance by Seller of the obligations to be performed hereunder and thereunder have been duly authorized by all requisite corporate action. This Agreement is, and each other Transaction Documents to be executed by Seller will be when so executed, a valid and binding obligation of Seller, enforceable in accordance with its respective terms, except that enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors rights generally and by general equitable principles.



(b)Except as set forth on Schedule 7.02 (the “Consent Schedule”), the execution and delivery of this Agreement and the other Transaction Documents to be executed and delivered by Seller and the consummation of the transactions contemplated hereby and thereby do not and will not, with or without the giving of notice or the passage of time, violate, conflict with, result in or constitute a breach, default, right to accelerate or loss of rights under, or result in the creation of any Encumbrance pursuant to, the terms or conditions of Seller’s Organizational Documents, any Legal Requirement or any mortgage, lease, franchise, license, Permit, Contract, agreement and/or instrument to which a Seller is a party or by which Seller is bound,  except where such violation, conflict, breach, default, acceleration or loss would not be material, individually or in the aggregate, to the Business, taken as a whole.  



7.03Consents and Approvals.  Except as set forth on the Consent Schedule, no consent, approval or authorization of, or declaration, filing or registration with, any Governmental Authority, and no consent, notice, approval or authorization of, or declaration, filing or registration with, any other Person is required in connection with Seller’s sale, transfer and assignment of the Acquired Assets to Buyer, the execution and delivery of this Agreement and the other Transaction Documents to be executed and delivered by Seller and/or the consummation or performance of any of the transactions contemplated hereby or thereby, except for such consents, notices, approvals, authorizations, declarations, filings or registrations which are not material, individually or in the aggregate, to the Business, taken as a whole.



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7.04Absence of Changes.  Except as set forth on Schedule 7.04, since September 30, 2020, (a) there has not been any Material Adverse Effect, and (b) Seller has operated the Business in the Ordinary Course of Business, except in connection with this Agreement and the other Transaction Documents and the discussions, negotiations, actions and transactions related hereto and thereto.



7.05Title to Acquired Assets; Sufficiency of Acquired Assets. 



(a)Seller and its Subsidiaries, as applicable,  have good and valid title to the Acquired Assets, free and clear of all Encumbrances. Seller and its Subsidiaries, as applicable,  have the complete and unrestricted power and unqualified right to sell, transfer, assign, convey and deliver the Acquired Assets to Buyer pursuant to this Agreement.



(b)At the Closing, assuming all consents and authorizations on the Consent Schedule have been obtained, the Buyer will own all of the assets, properties and rights necessary for Buyer to conduct the Business in all material respects in the manner in which the Business was conducted by Seller and its Subsidiaries as of immediately prior to the Closing.



7.06Assumed Business Contracts.  Except for the Excluded Business Contracts, the Assumed Business Contracts constitute all contracts to which Seller or any of its Affiliates is a party that relates to the Business, and Seller has made available to Buyer true, complete and correct copies of all such Assumed Business Contracts.  Each Assumed Business Contract is valid and binding and is in full force and effect and enforceable in accordance with its terms against Seller and, to Seller’s Knowledge, the other parties thereto, except as enforceability may be limited by applicable equitable principles, or by bankruptcy, insolvency, reorganization, moratorium, or similar Laws from time to time in effect affecting the enforcement of creditors’ rights generally. Neither Seller nor, to Seller’s Knowledge, any other party to an Assumed Business Contract is in breach of such Assumed Business Contract in any material manner, nor has Seller received or provided written notice of any such material breach, and Seller has not received any written notice that a party to any Assumed Business Contract has ceased, or intends to cease after the Closing, to purchase the products of the Business, to supply goods or services to the Business, or to otherwise terminate or materially reduce its relationship with the Business.



7.07Intellectual Property.  



(a)Schedule 7.07(a) sets forth a true and complete list of all patents and patent applications, all registered trademarks and service marks and all trademark and service mark applications, all registered copyrights and copyright applications, and all registered Internet domain names included in Business Intellectual Property (collectively, the “Seller Registered Intellectual Property”).  Seller has made all payments and filings required by the applicable Governmental Authority to maintain in effect the registration of each item of  Seller Registered Intellectual Property for which Seller is responsible.



(b)Except as otherwise disclosed in Schedule 7.07(b), each item of Business Intellectual Property (including the Product Formulation) is owned by Seller free and clear of all liens or other encumbrances (the “Owned Business Intellectual Property”).  The patent application included in the Seller Registered Intellectual Property was duly filed with the applicable

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Governmental Authority. To the Knowledge of Seller, except for such patent application, the Seller Registered Intellectual Property is valid, enforceable and subsisting.  Seller has not received any notice of any claim (i) challenging the validity, enforceability, effectiveness or ownership of any of Business Intellectual Property or (ii) alleging that any of Business Intellectual Property or the Business Products or Business infringe any other Person’s Intellectual Property, including any letter or other communication suggesting or offering that Seller obtain a license to any right to Intellectual Property of another Person.  To the Knowledge of Seller, there are no legal or governmental proceedings, including interference, inter partes examination, re-examination, reissue, opposition, nullity, or cancellation proceedings pending that relate to any of the Owned Business Intellectual Property, other than review of pending patent applications, and Seller is not aware of any information indicating that such proceedings are threatened or contemplated by any Governmental Authority or any other Person.  Seller has not exclusively licensed or sublicensed its rights in any Business Intellectual Property or received or granted any such rights.



(c)Seller has taken reasonable and adequate measures to protect the confidentiality of the trade secrets or other confidential information within the Business Intellectual Property, including the Product Formulation.  To Seller’s Knowledge, the Product Formulation has not been disclosed in any publicly-available source.  Schedule 7.07(c) sets forth a complete and accurate list of all Persons (other than natural persons), including suppliers,  contract manufacturers and legal counsel of the Business, to whom the Product Formulation has been disclosed by Seller or its Subsidiaries. Each Person set forth on Schedule 7.07(c), and all employees of Seller to whom the Product Formulation has been disclosed, is party to a confidentiality agreement with Seller with respect to or covering the Product Formulation agreeing that such Person and each of such Person’s employees and agents, as applicable, maintain the confidentiality thereof and that is valid and enforceable and in full force and effect.



(d)Except for the Persons set forth on Schedule 7.07(d),  Seller entered into written agreements with (i) all employees of Seller and its Subsidiaries and (ii) all other Persons (other than natural persons), in each case who contributed to or participated in the creation or development of any Owned Business Intellectual Property for or on behalf of Seller, acknowledging Seller’s ownership in such Owned Business Intellectual Property as a “work made for hire” or otherwise assigning, to the extent permitted by Law, all rights in and to such Owned Business Intellectual Property to Seller, and agreeing that such Person and each of such Person’s employees and agents, as applicable, maintain the confidentiality of such Owned Business Intellectual Property.



(e)To the Knowledge of Seller, no Person is engaging in any activity that infringes any Business Intellectual Property.



(f)To the Knowledge of Seller, none of the use of Business Intellectual Property, the conduct of the Business by Seller or the Business Products infringe or misappropriate the Intellectual Property of any third party.



(g)There are no forbearances to sue, consents, settlement agreements, judgments, orders or other legal or contractual obligations to which Seller or any of its Affiliates is a party or are otherwise bound that (i) restrict the rights of the Seller or any of its Affiliates to use, transfer, license or enforce any of the Business Intellectual Property; (ii) restrict the conduct

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of the Business in order to accommodate a third party’s Intellectual Property Rights; or (iii) grant any third party any right with respect to any Business Intellectual Property.



(h)During the five (5) years immediately preceding the Closing, all Personal Information collected, disclosed, or otherwise processed by the Seller in connection with the Business has been, and is being, collected, processed and disclosed in material compliance with applicable laws relating to privacy, data protection, and information security, including, to the extent applicable, the Data Protection Laws.  With respect to the Business, Seller has not, nor, to Seller’s Knowledge, any third party acting on behalf of Seller, has received any:  (A) written or oral notice or complaint alleging non-compliance with any Data Protection Law; (B) written or oral claim for compensation for loss or unauthorized collection, processing or disclosure of Personal Information; or (C) written or oral notification of an application for rectification, erasure or destruction of Personal Information that is still outstanding. Each of the mechanism through with the Seller collects Personal Information in connection with the Business, including Internet websites and clinical studies, owned or operated by or on behalf of the Seller maintains a publicly posted privacy statement or policy that accurately describes the Seller’s practices with respect to the collection, processing, use and disclosure of Personal Information in connection with the Business as required to comply in all material respects with all applicable Data Protection Laws.  The Seller’s privacy policies with respect to the Business conform and at all times have conformed to its own published and internal privacy policies, terms of use and guidelines related to information privacy and security, including with respect to the collection, processing, use, disposal, disclosure, maintenance and transmission of Personal Information at the time such policies, terms of use or guidelines were in effect. The execution, delivery and performance of this Agreement complies with all Data Protection Laws and the Seller’s applicable published privacy policies in each case with respect to the Business in all material respects. 



7.08Proceedings; Orders.  There are no Proceedings pending or, to Seller’s Knowledge, threatened against Seller (or any of its Affiliates) affecting or in any way relating to the Business or the Acquired Assets. There were no Proceedings involving the Acquired Assets or the Business in the five (5) years immediately prior to the date of this Agreement. There are no Orders affecting the Acquired Assets or the Business. 



7.09Legal Compliance.



(a)Seller and its Subsidiaries are, and during the five (5) years immediately preceding the Closing have been at all times, in compliance in all material respects with all Legal Requirements and Orders related to the Business or the Acquired Assets. No Proceeding has been filed or commenced during the five (5) years immediately preceding the Closing by any Governmental Authority against Seller or any of its Subsidiaries alleging a violation of any such applicable Legal Requirements or Orders.  With respect to the Business and the Acquired Assets, neither Seller nor any of its Subsidiaries has any Liability for past or continuing violations of any Legal Requirement or Order. 



(b)Seller and its Subsidiaries have obtained all Permits necessary or required for the conduct of the Business. The Business is in compliance in all material respects with the terms of such Permits.

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(c)Seller and its Subsidiaries are, and during the five (5) years immediately preceding the Closing have been at all times, in compliance with all Legal Requirements related to anti-bribery or anticorruption, including the U.S. Foreign Corrupt Practices Act of 1977 and the U.K. Bribery Act of 2010 (all such laws, the “Anticorruption Laws”) in connection with the Business and the Acquired Assets. No director, officer, employee or, to Seller’s Knowledge, any other Person acting for or on behalf of Seller or any of its Affiliates violated any Anticorruption Law in connection with the Business or the Acquired Assets. Neither Seller nor any of its Affiliates has received any written notice during the five (5) years immediately preceding the Closing alleging any violations, litigation or investigations by any Governmental Authority related to any violation of any Anticorruption Laws in connection with the Business or the Acquired Assets.



7.10Compliance with Health Care Laws.



(a)Seller and its Subsidiaries are, and during the five (5) years immediately preceding the Closing have been at all times, in compliance in all material respects with all Health Care Laws related to the Business or the Acquired Assets.  Neither Seller nor any of its Subsidiaries has received any written notice, charge, assertion or other communication, including a Warning Letter or Untitled Letter, from the FDA, FTC or any other Governmental Authority alleging any violation of any Health Care Law with respect to the Business or the Acquired Assets.



(b)During the five (5) years immediately preceding the Closing, neither Seller nor any of its Subsidiaries has been, with respect to the Business Product, a party to or subject to any pending or threatened FDA, FTC, Advertising Self Regulatory Council, or equivalent state or foreign agency, complaint, investigation, enforcement action, including any FDA Form 483, warning Letter, untitled letter, cyber letter, seizure, injunction, detention, refusal of admittance, recall, civil penalty, criminal investigation or penalty, disqualification, or debarment, and, to Seller’s Knowledge, no fact or circumstance exists which would form the reasonable basis for the conclusion that any Business Product provides a basis for such enforcement or compliance action.  Seller and each of its Subsidiaries, as applicable, have timely filed all serious adverse event reports for which it received notice associated with the use of any Business Product.



(c)With respect to the Business Product, to Seller’s Knowledge, Seller and its Subsidiaries are in material compliance with, and have in place, as applicable, appropriate policies and procedures to ensure material compliance with: (i) all applicable labeling, safety, notification, registration, manufacturing, testing, advertising, marketing, promotional, approval, clearance, transportation, storage, record-keeping, reporting, and all other requirements concerning the Business Products and/or any facilities used by Seller or any of its Subsidiaries, including under the FDCA, the Federal Trade Commission Act, the Dietary Supplement and Nonprescription Drug Consumer Protection Act of 2006, and the FDA Amendments Act of 2007, including, but not limited to, the External Analgesic Drug Products for Over-the-Counter Human Use  and all other regulations promulgated under each of those Acts.



(d)During the five (5) years immediately preceding the Closing,  no Business Product has been in material nonconformity with any guaranty provided by the Company pursuant to 21 CFR Part 7, Subpart A, and (ii) as of the Closing Date, no Business Product transferred under this Agreement has been adulterated or misbranded by the Company or, to the knowledge of the Company, by any other person or entity, pursuant to applicable provisions of the FDCA or any

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other Health Care Laws, nor is any such product an article which may not, under the provisions of sections 404, 505, 510(k), 512, or 515 of the FDCA, be introduced into interstate commerce, and (iii) as of the date it is placed into interstate commerce by the Company, no Business Product is adulterated or misbranded pursuant to the FDCA or to any other Health Care Laws, nor is any such product an article which may not, under the provisions of sections 404, 505, 510(k), 512, or 515 of the FDCA, be introduced into interstate commerce.



(e)Schedule 7.10(e) identifies each material recall of a Business Product or inquiry from a Governmental Authority (whether voluntary or compulsory) in the five (5) years prior to the date of this Agreement. No Business Product developed, formulated, sold, offered for sale, or distributed by Seller or any of its Subsidiaries is currently subject to a recall required or requested by any Governmental Authority and, to Seller’s Knowledge, there exists no fact or circumstance that would reasonably be expected to impose on Seller or any of its Subsidiaries a duty to recall or withdraw any Business Product or warn any consumer of a product defect. During the five (5) years immediately preceding the Closing, the Business Products developed, formulated, sold, offered for sale,  or distributed by Seller or any of its Subsidiaries were manufactured in accordance with the requirements of 21 CFR Parts 210 and 211.



(f)Except as set forth on Schedule 7.10(f), none of Seller or any of its Subsidiaries, nor, to Seller’s Knowledge, any Person acting on behalf of Seller or any of its Subsidiaries, has (i) conducted any clinical trials on any Business Products or (ii) received any written notice that the FDA or any other Governmental Authority or institutional review board has initiated, or threatened to initiate, any clinical hold or other action to suspend any planned clinical trial or otherwise restrict any research or study related to any Business Product.



(g)Neither Seller nor, to Seller’s Knowledge, any officer, employee or agent of Seller or any of its Subsidiaries has made any untrue statement of a material fact or fraudulent statement to the FDA or any similar Governmental Authority or failed to disclose a material fact required to be disclosed to the FDA or any similar Governmental Authority with respect to the Business or the Acquired Assets.



7.11Financial Information; Undisclosed Liabilities. 



(a)Attached to Schedule 7.11 is a copy of the statement of the unaudited net revenues, cost of goods sold, gross profit and gross profit margin of the Business as of, and for the twelve (12) month periods ended, December 31, 2018 and December 31, 2019, and the unaudited net revenues, cost of goods sold, gross profit and gross profit margin of the Business as of, and for the nine  (9) month period ended September 30, 2020 (the “Financial Information”). The Financial Information was prepared using materially accurate data derived from the books and records related to the Business, except as set forth on Schedule 7.11(a), has been prepared in accordance with GAAP applied on a consistent basis and fairly presents in all material respects such financial information of the Business and the results of its operations for the periods indicated.



(b)Except as set forth on Schedule 7.11(b), there are no Liabilities of the Business of any character or nature (whether or not required to be disclosed in the Financial Information in accordance with GAAP), other than (i) those reflected or reserved against in the Financial Information or (ii) those that have been incurred in the ordinary course of business since

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September 30, 2020 and that are not material, individually or in the aggregate, to the Business, taken as a whole.



7.12Taxes.



(a)Seller (i) has timely filed (or will timely file) with the appropriate Governmental Authorities all Tax Returns required to be filed by Seller with respect to the Business and the Acquired Assets and (ii) has timely paid (or will timely pay) all Taxes it owes whether or not shown as payable on such Tax Returns. All such Tax Returns filed by Seller are true and correct in all material respects.  Seller has withheld and paid all Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, shareholder or other Person, and Seller has complied with all reporting and recordkeeping requirements in connection therewith.  There are no Encumbrances for Taxes on any of the Acquired Assets.



(b)There is no Proceeding or audit now pending against Seller in respect of any Taxes or assessments with respect to the Business or the Acquired Assets, and Seller has not waived any applicable statute of limitations with respect to such Taxes or agreed to any extension of time with respect to such Taxes.  No claim has ever been made by a Governmental Authority that Seller may be subject to taxation with respect to the Business or the Acquired Assets in a jurisdiction in which such Party is not currently filing Tax Returns.



(c)No claim has been made by a Governmental Authority in a jurisdiction where Seller does not file a Tax Return with respect to the Business or the Acquired Assets, that Seller should be filing Tax Returns in such jurisdiction with respect to the Business or the Acquired Assets.



(d)None of the Contracts or the Assumed Liabilities are or include, and neither Seller nor any of its Affiliates are a party to, a Tax sharing, Tax allocation or similar arrangement (including indemnity arrangements), pursuant to which Buyer or any of its Affiliates may have any obligations to make payments after the Closing.



(e)There are no Tax Liabilities of Seller or its Affiliates that could result in Liability to Buyer as a transferee or successor or otherwise attach to any of the Acquired Assets.



(f)Seller has, to the extent applicable, furnished properly completed exemption certificates and maintained all such records and supporting documents in respect of any sales and use Taxes related to the Business and the Acquired Assets in the manner required by applicable Law.



7.13Certain Transactions. Neither Seller nor any of its controlled Affiliates, nor, to Seller’s Knowledge, any officer, director or employee of Seller or any of its controlled Affiliates, nor, to Seller’s Knowledge, any family member of any such officer, director or employee: (a) has any ownership or interest in any of the Acquired Assets, (b) participates in, engages in or owns any business that (i) has an ongoing business relationship with Business, or (ii) competes with or is engaged in the same business as the Business, (c) is a party to any Assumed Business Contract, or (d) owes any amount to, or is owed any amount by, Seller with respect of the Business.  

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7.14Insurance.  Schedule 7.14 sets forth a complete and accurate list and description of all policies of insurance presently in effect with respect to the Acquired Assets or the Business (the “Insurance Policies”). All such Insurance Policies are valid, outstanding and enforceable. No written notice of cancellation or termination has been received by Seller with respect to any of the Insurance Policies. All premiums currently payable or previously due on the Insurance Policies have been paid.



7.15Customers and Suppliers.  Schedule 7.15 lists each of the customers, suppliers, contract manufacturers or licensors of the Business as of the date hereof. No such customer or contract manufacturer has terminated or materially curtailed its relationships with the Business or, to the Knowledge of the Seller, notified Seller or any of its Subsidiaries of any intention to terminate or materially curtail its relationship with the Business.



7.16Product Matters.



(a)No Proceeding has been filed or commenced during the five (5) years immediately preceding the Closing by any Governmental Authority against Seller alleging that any Business Product is defective or unsafe or fails to meet any standards promulgated by any such Governmental Authority.  During the five (5) years immediately preceding the Closing, none of the Business Products has been the subject of any replacement, modification or recall campaign by Seller and, to the Knowledge of Seller, no facts or conditions related to any product exist which would reasonably be expected to result in such a campaign.



(b)Schedule 7.16(b) sets forth the standard terms and conditions of sale of the Business Products and all forms of guaranty, warranty, right of return, right of credit or other indemnity that legally bind the Seller in connection with any products that have not yet expired.  Except as provided by applicable Law, no Business Products are subject to any term and conditions, guaranty, warranty or other indemnity beyond the applicable standard terms and conditions of sale or lease set forth in Schedule 7.16(b).  Each Business Product marketed or sold by Seller during the five (5) years immediately preceding the Closing has been in conformity in all material respects with internal specifications, good manufacturing practices, and standard operating procedures (including in conformity in all material respects with all advertisements, commercials, promotional materials and public statements regarding such Business Products).



7.17Brokerage. No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with this Agreement or the transactions contemplated hereby based upon any agreements, written, oral or otherwise made by or on behalf of Seller.



7.18No Additional Representations.  Seller acknowledges that Buyer has not made any representation or warranty, express or implied, regarding Buyer, except for the representations and warranties of Buyer expressly set forth in Section 8 of this Agreement.  Seller further agrees that, except with respect to the representations and warranties of Buyer expressly set forth in Section 8 of this Agreement, Buyer shall not have or be subject to any liability to Seller resulting from the distribution to Seller, or Seller’s use of, any information, document or material provided to Seller or made available to Seller, as Seller acknowledges that no representations or warranties are made with respect to any such information, document, material or statement.  Notwithstanding the

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foregoing, the foregoing provisions shall not limit or abrogate (i) the representations and warranties expressly set forth in Section 8 of this Agreement or Seller’s right to rely thereon or (ii) Buyer’s liability to Seller in the event of Fraud by or on behalf of the Buyer.



EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES OF SELLER EXPRESSLY SET FORTH IN THIS SECTION 7, SELLER MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AT LAW OR IN EQUITY, IN RESPECT OF SELLER, THE BUSINESS, THE ACQUIRED ASSETS OR THE ASSUMED LIABILITIES.



8.Representations and Warranties of Buyer. Buyer represents and warrants to Seller that the following statements are true and correct as of the date hereof:



8.01Organization.  Buyer is a corporation duly organized, validly existing and in good standing under the Laws of the State of Delaware.  Buyer has all necessary corporate power and authority to carry on its business as now conducted and to own and lease the properties and assets it now owns and leases.



8.02Authorization of Agreement; No Conflict.



(a)Buyer has all requisite corporate power and authority to execute and deliver this Agreement and the other Transaction Documents to be executed and delivered by Buyer and to consummate the transactions provided for herein and therein.  The execution and delivery by Buyer of this Agreement and the other Transaction Documents to be executed and delivered by Buyer and the performance by Buyer of the obligations to be performed hereunder and thereunder have been duly authorized by Buyer by all requisite corporate action.  This Agreement is, and each other Transaction Documents to be executed by Buyer will be when so executed, a valid and binding obligation of Buyer, enforceable in accordance with its terms, except that enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors rights generally and by general equitable principles.



(b)The execution and delivery of this Agreement and the other Transaction Documents to be executed and delivered by Buyer and the consummation of the transactions contemplated hereby and thereby do not and will not, with or without the giving of notice or the passage of time, conflict with, result in or constitute a breach, default, right to accelerate or loss of rights under, or result in the creation of any Encumbrance pursuant to, the terms or conditions of Buyer’s Organizational Documents or any Legal Requirement or any mortgage, lease, franchise, license, permit, contract, agreement and/or instrument to which Buyer is a party or by which Buyer is bound.



8.03Litigation. There is no Proceeding pending or, to Buyer’s knowledge, threatened against Buyer, except as would not reasonably be expected to materially and adversely affect or restrict Buyer’s ability to consummate the transactions contemplated by this Agreement.



8.04Brokerage.  No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with this Agreement or the transactions contemplated hereby based upon any agreements, written, oral or otherwise made by or on behalf of Buyer.

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8.05Financial Capability; Solvency.  Buyer will have on the Closing Date sufficient immediately available funds in cash to pay the Purchase Price described in this Agreement and to pay its related fees and expenses.  Buyer is not insolvent, nor will Buyer be rendered insolvent by any of the transactions contemplated herein.  As used in this Section, “insolvent” means that the sum of the debts and other probable Liabilities of Buyer exceeds the present fair saleable value of the assets of Buyer.



8.06No Additional Representations or Warranties.  Buyer acknowledges that Seller has not made any representation or warranty, express or implied, regarding Seller, the Business, the Acquired Assets or the Assumed Liabilities, except for the representations and warranties of Seller expressly set forth in Section 7 of this Agreement.  Buyer further agrees that, except with respect to the representations and warranties of Seller expressly set forth in Section 7 of this Agreement, Seller shall not have or be subject to any liability to Buyer or any other Buyer Indemnified Party resulting from the distribution to Buyer, or Buyer's use of, any information, document or material provided to Buyer or made available to Buyer in the Data Room, management presentations or any other form in expectation of the transactions contemplated by this Agreement, including any estimates, forecasts, plans, financial projections or statements concerning the backlog or pipeline of the Business, as Buyer acknowledges that no representations or warranties are made with respect to any such information, document, material or statement.  Buyer further acknowledges that there are uncertainties inherent in attempting to make any such estimates, forecasts, projections or statements, that Buyer is familiar with such uncertainties, and that Buyer is fully responsible for making its own evaluation of the adequacy and accuracy of any such estimates, forecasts, projections or statements.  Buyer further acknowledges and agrees that (a) it has conducted such investigations of Seller and the Business as it deems necessary in connection with the execution of this Agreement and the consummation of the transactions contemplated hereby, (b) it and its representatives have been permitted access to the records, facilities, equipment, Tax Returns, Contracts and other properties and assets of Seller which they have desired and requested to see and/or review, and (c) it and its representatives have had the opportunity to meet with representatives of Seller to discuss the Business, the Acquired Assets and the Assumed Liabilities.    Notwithstanding the foregoing, the foregoing provisions shall not limit or abrogate (i) the representations and warranties expressly set forth in Section 7 (as modified by the Disclosure Schedule) of this Agreement or Buyer’s right to rely thereon or (ii) Seller’s liability to Buyer or any other Buyer Indemnified Party in the event of any Fraud by or on behalf of the Seller. 



EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES OF BUYER EXPRESSLY SET FORTH IN THIS SECTION 8, BUYER MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AT LAW OR IN EQUITY, IN RESPECT OF BUYER.



9.Covenants and Agreements.



9.01Restrictive Covenants.  



(a)Nondisclosure. For a period of five (5) years following the Closing Date, except as otherwise expressly provided in this Agreement, Seller will hold in confidence and not disclose, release or use (except as may be necessary to enforce its rights as described in clause (iii) below, in connection with the performance of its obligations under this Agreement or any of the

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other Transaction Documents or the preparation of any Tax Returns required to be filed by it pursuant to this Agreement) without the prior written consent of Buyer, any and all Confidential Information related to the Business and the Acquired Assets; provided, that Seller may disclose, or may permit disclosure of, such information: (i) to its representatives who have a need to know such information for a purpose not prohibited by this Section 9.01(a) and are informed of their obligation to hold such information confidential to the same extent as is applicable to Seller and in respect of whose failure to comply with such obligations Seller will be responsible, (ii) if Seller or its representatives are required to disclose any such information pursuant to applicable Law or stock exchange rules or (iii) in connection with the enforcement of any right or remedy or the defense of any claim relating to this Agreement or any of the other Transaction Documents or the transactions contemplated hereby and thereby. Notwithstanding anything to the contrary in the foregoing, in the event that any demand or request for disclosure of such Confidential Information is made pursuant to clause (ii) above, Seller will to the extent permissible promptly notify Buyer of the existence of such request or demand and will provide Buyer a reasonable opportunity to seek an appropriate protective order or other remedy (and cooperate with Buyer with respect thereto, at Buyer’s sole cost and expense), and in the event such protective order or other remedy is not obtained, Seller may disclose such Confidential Information without Liability hereunder, but will furnish only that portion of such Confidential Information that Seller is advised by legal counsel (which may be in-house counsel) it is legally required to disclose and will, to the extent requested by Buyer, exercise reasonable efforts, at Buyer’s sole cost and expense, to preserve the confidentiality of such information;  provided that, with respect to Confidential Information that constitutes a trade secret under applicable Law, Seller’s confidentiality obligations with respect to such Confidential Information pursuant to this Section 9.01(a) shall survive indefinitely. Notwithstanding anything to the contrary herein, this Section 9.01(a) will not apply to information: (A) to the extent relating to Seller other than the Business or the Acquired Assets, (B) that is or becomes generally available to the public other than as a result of disclosure by Seller or an Affiliate or representative of Seller in breach of any confidentiality obligation, (C) that becomes available to Seller or an Affiliate of Seller after the Closing Date on a non-confidential basis from a source other than Buyer or an Affiliate or representative of Buyer (provided, that such source is not known by Seller, after due inquiry, to be bound by any obligation of confidentiality to Buyer) or (D) that is independently developed by Seller or any Affiliate of Seller following the Closing without reference to or reliance upon the Confidential Information and only by Persons who have never accessed such Confidential Information. 



(b)Noncompetition; Nonsolicitation. For a period of ten (10) years following the Closing Date, Seller will not, and will cause its controlled Affiliates to not, directly or indirectly, (i) engage in the Restricted Business anywhere in the world, (ii) control any entity that engages in the Restricted Business, or (iii) knowingly and willfully cause, induce or encourage any material customer, supplier, contract manufacturer or licensor of the Business as of the Effective Time, or any other Person who has a material business relationship with the Business as of the Effective Time, to terminate or modify such material customer, supplier, licensor or other material business relationship with the Business; provided,  however, that neither (x) the ownership of not more than five percent (5%) of the outstanding shares of any publicly held company that engages in an activity otherwise prohibited by this Section 9.01(b) nor (y) Seller’s payment of the Excluded Post-Closing Payable or collection of the Excluded Post-Closing Receivable shall constitute a breach of this Section 9.01(b).

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(c)Reasonableness; Equitable Relief. Seller acknowledges and agrees that the restrictions and covenants contained in this Section 9.01 are reasonably necessary to protect the legitimate business interests of Buyer and constitute a material inducement to Buyer to enter into this Agreement and to consummate the transactions contemplated hereby. Seller specifically acknowledges and agrees that Buyer will be entitled to seek injunctive relief for a breach of any restriction contained in this Section 9.01. If at any time a court or arbitrator’s award holds that the restrictions in this Section 9.01 are unreasonable under circumstances then existing, the Parties agree that the maximum period, scope or geographical area reasonable under such circumstances shall be substituted for the stated period, scope or area.  The Parties agree that any breach of the provisions contained in this Section 9.01 will result in serious and irreparable injury and therefore money damages would not be an adequate remedy for any such breach.  Therefore, in the event of a breach or threatened breach of any provisions of this Section 9.01 that is continuing, Buyer, its successors and assigns and any third-party beneficiary to this Agreement, in addition to other rights and remedies existing in their favor, shall be entitled to specific performance or injunctive or other relief in order to enforce, or prevent any violations of, the provisions hereof (without posting a bond or other security).  In addition, in the event of a breach or violation by Seller or any of its controlled Affiliates of this Section 9.01, the applicable non-compete term shall be tolled until such breach or violation has been duly cured.



9.02Publicity. No public announcement related to this Agreement or the transactions contemplated herein will be issued without the joint approval of Seller and Buyer, which approval shall not be unreasonably withheld, conditioned or delayed, except in any public disclosure which Seller, in its good faith judgment, believes is required by applicable Law or by any stock exchange on which its securities are listed. If Seller, in its good faith judgment, believes such disclosure is required, Seller shall use its commercially reasonable efforts to consult with Buyer, and to consider in good faith any revisions proposed by Buyer, as applicable, prior to making (or prior to any Affiliate making) such disclosure; provided that Buyer shall deemed to have consented to any such disclosure to the extent Seller has provided Buyer with a draft thereof and Seller has not suggested any revisions within five (5) Business Days of Seller’s receipt of such draft. Notwithstanding the foregoing, without the approval of the other Party, Buyer and Seller and their respective Affiliates may, following the Closing Date and subject to the other terms and conditions of this Agreement, (a) make internal announcements to their and their Affiliates’ respective employees and Affiliates, (b) communicate with Governmental Authorities regarding this Agreement and the transactions contemplated hereby, and (c) make the public announcements and engage in public communications regarding this Agreement and the transactions contemplated hereby (in the case of this clause (c), solely to the extent such announcements or communications are consistent with a communications plan agreed upon by Seller and Buyer or their respective prior public communications made in compliance with this Section 9.03).    



9.03Post-Closing Access to Records and Personnel. For a period of five (5) years after the Closing Date, upon receipt of reasonable prior notice, Buyer and Seller each agree to provide, or cause to be provided, to each other, as soon as reasonably practicable after written request therefor and at the requesting Party’s sole expense (but only for the reasonable out-of-pocket costs and expenses incurred by the Party in providing such access), reasonable access during normal business hours, and in a manner so as not to unreasonably interfere with the conduct of such other Party’s business, to the other Party’s employees and to any books, records, documents, instruments, accounts, correspondence, writings, evidences of title and other papers relating solely

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to the conduct of the Business on or before the Closing Date, in the possession or under the control of the other Party that the requesting Party reasonably needs: (a) to comply with reporting, disclosure, filing or other requirements imposed on the requesting Party by a Governmental Authority having jurisdiction over the requesting Party or by applicable stock exchange rules, (b) for use in any Proceeding, or in order to satisfy Tax, audit, accounting, claims, regulatory, or other similar requirements, (c) in connection with the filing of any Tax Return or election or any amended return or claim for refund, determining a Liability for Taxes or a right to a refund of Taxes or any Tax audit or other Proceeding in respect of Taxes or (d) to comply with its obligations under this Agreement or any of the other Transaction Documents; provided,  however, that no Party will be required to provide access to or disclose information where such access or disclosure would be reasonably expected to violate any Law or Contract, or waive any attorney-client or other similar privilege (provided, that in the event such provision of information would reasonably be expected to violate any Law or Contract or waive any attorney-client or other similar privilege, the Party with such information will inform the other as to the general nature of what is being withheld as a result of the foregoing and will take all reasonable measures to permit the disclosure in a manner that avoids any such violation or waiver). Any information owned by a Party that is provided to a requesting Party pursuant to this Section 9.03 will be deemed to remain the property of the providing Party. Unless specifically set forth herein, nothing contained in this Agreement will be construed as granting or conferring rights of license or otherwise in any such information. No Party will have any Liability to the other Party in the event that any information exchanged or provided pursuant to this Section 9.03 is found to be inaccurate or is destroyed or lost after commercially reasonable efforts by such Party to comply with the provisions of this Section 9.03.



9.04Expenses.  Except as otherwise provided herein, Buyer, on the one hand, and Seller, on the other hand, agree to each bear their own expenses, fees, and costs in connection with the transactions contemplated by this Agreement; provided,  however, that (a) all transfer, documentary, sales, use, stamp, registration, recording and other such similar Taxes, and all other conveyance fees, recording charges and other charges and fees (including any penalties and interest) incurred in connection with consummation of the transactions contemplated by this Agreement (“Transfer Taxes”) shall be paid fifty percent (50%) by Seller and fifty percent (50%) by Buyer, and (b) all costs required to obtain the consents of Persons listed on the Consent Schedule shall be paid by Seller. The Parties agree to reasonably cooperate to (i) sign and deliver any resale and other certificates or forms as may be necessary or appropriate to establish an exemption from (or otherwise reduce) any Transfer Taxes and (ii) prepare and file (or cause to be prepared and filed) all Tax Returns in respect of any such Transfer Taxes.



9.05Wrong Pockets Clause. 



(a)If, after the Closing, Buyer receives any amounts with respect to Pre-Closing Receivables, Buyer will remit such amounts to Seller within five (5) Business Days after Buyer’s receipt thereof.  If, after the Closing, Seller receives any amounts with respect to Post-Closing Receivables, Seller will remit such amounts to Buyer within five (5) Business Days after such Seller’s receipt thereof.



(b)If, after the Closing, either Buyer on the one hand, or Seller or any of its Subsidiaries, on the other hand, becomes aware that any of the Acquired Assets has not been transferred to Buyer or that any of the Excluded Assets has been transferred to Buyer, it shall

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promptly notify the other Party in writing and the Parties shall, as soon as reasonably practicable, ensure that such property is transferred, with any necessary prior third party consent or approval, to (a) Buyer, in the case of any Acquired Asset that was not transferred to Buyer at the Closing; or (b) Seller, in the case of any Excluded Asset that was transferred to Buyer at the Closing.



9.06Transition Services.  Seller shall, and shall cause its Subsidiaries to, reasonably cooperate with Buyer’s request for assistance in a timely manner in connection with the transfer of the Acquired Assets and, upon Buyer’s request, provide reasonable assistance in a timely manner to enable Buyer to fully exploit the Acquired Assets.



9.07Further Assurances.  Upon request, from time to time, each Party agrees that it shall (or direct its employees to, if applicable) execute and deliver all documents, make all rightful oaths, testify in any proceedings and do all other acts which may be necessary or desirable in the reasonable opinion of the other Party to consummate the transactions contemplated hereby.



9.08Termination of Roman Distributor Agreement.  Effective as of the Effective Time, and without the necessity of any further action by Buyer or Seller, the Roman Distributor Agreement and all respective rights, obligations, interests and liabilities of the Parties arising thereunder shall terminate and be of no further force or effect.



10.Indemnification.



10.01Indemnification by Seller.  From and after the Closing, and regardless of any investigation made at any time by or on behalf of Buyer or any information Buyer may have, Seller, on behalf of itself and its successors and assigns, hereby covenants and agrees to indemnify, defend and hold Buyer and its Affiliates, stockholders, directors, officers, employees and agents (collectively, the “Buyer Indemnified Parties”) harmless from and against, and reimburse the Buyer Indemnified Parties for all costs of, any demand, claim, damage, Liability, loss, cost or expense (including interest, penalties, costs of preparation and investigation and the reasonable fees, disbursements and expenses of attorneys, accountants and other professional advisors and other costs and expenses incident to proceedings or investigations, or the defense or settlement of any claim) (collectively, “Buyer’s Damages”) directly or indirectly arising out of, resulting from or relating to:



(a)any breach of any representation or warranty of Seller made in Section 7 of this Agreement (as modified by the Disclosure Schedule);



(b)any breach or failure of Seller to duly perform or observe any term, provision, covenant or agreement to be performed or observed by Seller or any of its Subsidiaries or Affiliates pursuant to this Agreement;



(c)any Pre-Closing Taxes;



(d)the Excluded Liabilities;



(e)any Indebtedness of Seller;



(f)any Seller’s Transaction Expenses; or

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(g)any claims that the Business Intellectual Property or the Business Products infringe any other Person’s Intellectual Property.



10.02Limitations on the Indemnification Obligations of Seller.



(a)Survival Periods for Representations, Warranties and Covenants. 



(i)Subject to clause (iv) below, the representations and warranties set forth in Section 7.01  (Organization), Section 7.02  (Authorization of Agreement; No Violation), Section 7.03  (Consents and Approvals), Section 7.05(a) (Title to Acquired Assets), the first sentence of Section 7.07(b),  Section 7.12 (Taxes) and Section 7.17  (Brokerage) (collectively, the “Fundamental Representations”) shall survive the Closing until thirty (30) days after the expiration of the statute of limitations applicable to the underlying breach of representation or warranty.



(ii)Except for claims of Fraud, and subject to clause (iv) below, all representations and warranties of Seller set forth in Section 7 of this Agreement, other than Fundamental Representations, shall survive the Closing until the eighteen (18) month anniversary of the Closing Date.



(iii)Except for claims of Fraud, and subject to clause (iv) below, Seller’s obligations under Section 10.01(g) shall survive the Closing until the eighteen (18) month anniversary of the Closing Date.    All other covenants and agreements contained in this Agreement and the other Transaction Documents shall survive the Closing in accordance with their terms.



(iv)Seller’s obligation to indemnify the Buyer Indemnified Parties with respect to a claim (a) for a breach of any of the representations and warranties of Seller set forth in Section 7 of this Agreement, or (b) pursuant to Section 10.01(g),  shall extend (with respect to such claim) beyond the applicable survival period only for claims of Fraud or if the Buyer Indemnified Party asserts such claim in a Notice of Claim duly delivered to Seller prior to the expiration of such survival period.



(b)Basket.    No indemnification shall be payable by Seller under Section 10.01(a) or Section 10.01(g) unless and until the Buyer’s Damages exceed, in the aggregate, $100,000 (the “Basket”).  At such time as the aggregate amount of Buyer’s Damages exceeds the Basket, Seller shall be liable to the Buyer Indemnified Parties shall be entitled to seek indemnification in full for all breaches of such representations or warranties or pursuant to Section 10.01(g) without regard to the Basket (but subject to the other limitations set forth in this Section 10). 



(i)Notwithstanding the foregoing, the Basket shall not apply to (a) claims for indemnification brought for breaches of the Fundamental Representations or (b) any claims of Fraud.



(c)Caps.



(i)Seller’s aggregate liability under Section 10.01(a) shall not exceed $3,000,000 (when aggregated with claims subject to the Intellectual Property Cap and the Special Intellectual Property Cap) (the “General Cap”); provided,  however, that the General Cap shall not

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apply to (a) claims for indemnification brought for breaches of the Fundamental Representations, (b) claims for indemnification brought for breaches of the representations and warranties set forth in Section 7.07, or (c) any claims of Fraud.



(ii)Seller’s aggregate liability under Section 10.01(g) or Section 10.01(a) for breaches of the representations and warranties set forth in Sections 7.07(a),  7.07(b),  7.07(d),  7.07(e),  7.07(f),  7.07(g) and 7.07(h) shall not exceed $4,000,000 (when aggregated with claims subject to the General Cap and the Special Intellectual Property Cap) (the “Intellectual Property Cap”); provided,  however, that the Intellectual Property Cap shall not apply to (a) claims for indemnification brought for breaches of the Fundamental Representations or (b) any claims of Fraud.



(iii)Seller’s aggregate liability under Section 10.01(a) for breaches of the representations and warranties set forth in Section 7.07(c) shall not exceed $6,000,000 (when aggregated with claims subject to the General Cap and the Intellectual Property Cap) (the “Special Intellectual Property Cap”); provided,  however, that the Special Intellectual Property Cap shall not apply to any claims of Fraud.



(iv)In no event shall Seller’s aggregate liability under Section 10.01 exceed the Purchase Price.



(d)Further Limitations. The Buyer Indemnified Parties shall not be entitled to indemnification under this Agreement:



(i)to the extent of any net Tax benefit described in Section 10.02(e) below;



(ii)to the extent of any insurance proceeds actually received by the Buyer Indemnified Party in connection with the facts giving rise to such indemnification, as determined pursuant to Section 10.02(f) below; and



(iii)to the extent that the Buyer’s Damages subject to a claim for indemnification resulted from failure of Buyer to undertake actions required by applicable Law to mitigate such Buyer’s Damages.



(e)Tax Benefit.  The amount of any indemnity provided in this Agreement shall be reduced (but not below zero) by the amount of any reduction in cash Taxes paid by any Buyer Indemnified Party with respect to the taxable year in which the relevant Buyer Damages were incurred, which reduction arises directly as a result of the Buyer’s Damages giving rise to such indemnity claim (as determined on a “with-and-without” basis).  If the indemnity amount is paid prior to the Buyer Indemnified Parties realizing a reduction in Taxes in connection with the claims giving rise to such payment, and the Buyer Indemnified Parties subsequently realize such reduction in Taxes, then the Buyer Indemnified Parties shall pay to Seller the amount of such reduction in Taxes (but not in excess of the indemnification payment or payments actually received with respect to such claims). 



(f)Insurance Proceeds.  The amount of any indemnity provided in this Agreement shall be computed net of any insurance proceeds actually received by a Buyer

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Indemnified Party in connection with or as a result of any claim giving rise to an indemnification claim hereunder. If the indemnity amount is paid prior to the Buyer Indemnified Party’s actual receipt of insurance proceeds related thereto, Buyer shall assign its right to such insurance and allow Seller to pursue collection of such insurance proceeds.  In addition, if a Buyer Indemnified Party subsequently receives such insurance proceeds, then the Buyer Indemnified Party shall promptly pay to Seller the amount of insurance proceeds subsequently received (net of all related costs, expenses and other Liabilities), but not more, in the aggregate, than the indemnity amount paid by Seller.



(g)Collection Principles.



(i)The Buyer Indemnified Parties will be entitled to indemnification pursuant to Section 10.01(a) (other than claims based on a breach of the Fundamental Representations) in the following order: (a) first, the Buyer Indemnified Parties will incur Buyer’s Damages until the Buyer Indemnified Parties shall have borne Buyer’s Damages in excess of the Basket, (b) second, the Buyer Indemnified Parties will be entitled to indemnification by set off against Note A (provided it is then outstanding) and Note B (provided it is then outstanding),  until the entire outstanding amounts of Note A and Note B have been set off and (c) thereafter, the Buyer Indemnified Parties will be entitled to indemnification directly from Seller (but subject to the other limitations set forth in this Section 10).



(ii)The Buyer Indemnified Parties will be entitled to indemnification pursuant to Section 10.01(a) resulting from a breach of a Fundamental Representation or under Section 10.01(b),  10.01(c),  10.01(d),  10.01(e), 10.01(f) or 10.01(g) in the following order: (a) first, the Buyer Indemnified Parties will be entitled to indemnification by set off against Note A (provided it is then outstanding) and Note B (provided it is then outstanding), until the entire outstanding amounts of Note A and Note B have been set off, and (b) thereafter, the Buyer Indemnified Parties will be entitled to indemnification directly from Seller (but subject to the other limitations set forth in this Section 10).



(h)Materiality. Notwithstanding anything contained herein or elsewhere to the contrary, all “material” and “Material Adverse Effect” or similar materiality type qualifications contained in the representations and warranties set forth in this Agreement shall be ignored and not given any effect for purposes of calculating the amount of any Buyer’s Damages.



(i)Certain Damages.  Seller shall not have any liability under any provision of this Agreement for, and the amount of Buyer’s Damages shall not include punitive damages (except to the extent such damages are payable in connection with a Third Party Claim).



10.03Indemnification by Buyer.  From and after the Closing, and regardless of any investigation made at any time by or on behalf of Seller or any information Seller may have, Buyer, on behalf of itself and its successors, hereby covenants and agrees to indemnify, defend and hold Seller and its Affiliates, shareholders, directors, officers, employees and agents (collectively, the “Seller Indemnified Parties”) harmless from and against, and shall reimburse the Seller Indemnified Parties for all costs they incur with respect to, any demand, claim, damage, Liability, loss, cost or expense (including interest, penalties, costs of preparation and investigation and the reasonable fees, disbursements and expenses of attorneys, accountants and other professional

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advisors and other costs and expenses incident to proceedings or investigations, or the defense or settlement of any claim) (collectively, “Seller’s Damages”) directly or indirectly arising out of, resulting from or relating to:



(a)any breach of any representation or warranty of Buyer made in Section 8 of this Agreement;



(b)any breach or failure of Buyer to duly perform or observe any term, provision, covenant or agreement to be performed or observed by Buyer pursuant to this Agreement; or



(c)the Assumed Liabilities.



10.04Indemnification Procedure.



(a)Following the discovery of any facts or conditions that could reasonably be expected to give rise to a claim for either Buyer’s Damages or Seller’s Damages, the Person seeking indemnification under this Agreement (the “Indemnified Party”) shall promptly, but in any event within thirty (30) days thereafter, provide written notice to the Party from whom indemnification is sought (the “Indemnifying Party”), setting forth, to the extent known by the Indemnified Party, the facts and circumstances, in reasonable detail, relating to such Buyer’s Damages or Seller’s Damages, as applicable, the amount of such Buyer’s Damages or Seller’s Damages (or a non-binding, reasonable estimate thereof if the actual amount is not known or not capable of reasonable calculation) and the Section(s) of this Agreement upon which the Indemnified Party is relying in seeking such indemnification (such written notice being hereinafter referred to as a “Notice of Claim”);  provided that no delay in providing such Notice of Claim shall affect an Indemnified Party’s rights hereunder, unless (and then only to the extent that) the Indemnifying Party is materially and adversely prejudiced in connection therewith.  In the event the Indemnifying Party does not notify the Indemnified Party within thirty (30) days following its receipt of a Notice of Claim that the Indemnifying Party disputes its liability to the Indemnified Party under this Section 10 or the amount thereof, the claim specified by the Indemnified Party in such Notice of Claim shall be conclusively deemed a Liability of the Indemnifying Party under this Section 10 (subject to all of the limitations and other terms of this Section 10), and the Indemnifying Party shall pay the amount of such Liability that it is required to pay under this Section 10 to the Indemnified Party on demand or, in the case of any Notice of Claim in which the amount of the claim (or any portion of the claim) is estimated, on such later date when the amount of such claim (or such portion of such claim) becomes finally determined (subject to all of the limitations and other terms of this Section 10).  In the event the Indemnifying Party has timely disputed its Liability with respect to such claim as provided above, such Indemnified Party and the appropriate Indemnifying Party, as promptly as possible, shall establish the merits and amount of such claim (by mutual agreement, litigation, arbitration or otherwise) and, within five (5) Business Days following the final determination of the merits and amount of such claim, the Indemnifying Party shall pay to the Indemnified Party in immediately available funds an amount equal to such claim as determined hereunder (subject to all of the limitations and other terms of this Section 10).

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(b)The following provisions shall apply to any claim subject to indemnification under this Agreement that is filed, demanded or instituted by any third party, including any Governmental Authority (a “Third Party Claim”):



(i)The Indemnified Party or Parties shall give the Indemnifying Party or Parties a Notice of Claim promptly after receipt by such Indemnified Party of notice of the assertion of a Third Party Claim against it, but in no event later than thirty (30) days thereafter;  provided,  however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from Liability hereunder with respect to such Third Party Claim only if, and only to the extent that, such failure to so notify the Indemnifying Party results in the forfeiture by the Indemnifying Party of any material rights and defenses otherwise available to the Indemnifying Party with respect to such Third Party Claim or the Indemnifying Party is materially and adversely prejudiced in connection therewith. 



(ii)The Indemnifying Party shall have the right to undertake the control the defense of the Third Party Claim to the extent such Third Party Claim involves solely monetary damages by providing written notice to the Indemnified Party within twenty (20) days following receipt of such Notice of Claim by representatives chosen by the Indemnifying Party and reasonably acceptable to the Indemnified Party; provided,  however, that the Indemnifying Party will not be entitled to assume the defense of any Proceeding if (a) such Third Party Claim could result in criminal liability of, or equitable remedies against, the Indemnified Party; (b) such Third Party Claim involves a customer, vendor, distributor, sales agent or employee of the Indemnified Party or its Affiliates or in the reasonable judgment of the Indemnified Party could reasonably be expected to result in a negative effect to the reputation or future business prospects of the Indemnified Party, (c) the Indemnified Party has been advised in writing by legal counsel that the interests of the Indemnifying Party and the Indemnified Party with respect to such Third Party Claim are in conflict with one another, and as a result, the Indemnifying Party could not adequately represent the interests of the Indemnified Party in such Third Party Claim, or (d) the Buyer’s Damages or Seller’s Damages resulting from such Third Party Claim would reasonably be expected to exceed any applicable limitations on the indemnification obligations set forth in this Section 10.  In the event, however, that the Indemnifying Party declines or fails to assume, or is not permitted to assume, the defense of the Third Party Claim on the terms provided above or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such twenty (20) day period, or if the Indemnifying Party is not entitled to assume the defense of the Third Party Claim in accordance with the preceding sentence, then such Indemnified Party may employ counsel to represent or defend it in any such Proceeding, and the reasonable fees and disbursements of such counsel for the Indemnified Party as incurred shall constitute Buyer’s Damages or Seller’s Damages (as the case may be) hereunder.  In any audit, investigation, action or proceeding for which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter and to retain its own counsel at such Party’s own expense.  The Indemnifying Party or the Indemnified Party (as the case may be) shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party (as the case may be) reasonably apprised of the status of the defense of any matter the defense of which it is maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.   



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(iii)No Indemnified Party may settle or compromise any Third Party Claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder without the prior written consent of the Indemnifying Party (not to be unreasonably withheld, conditioned or delayed), unless such settlement, compromise or consent includes an unconditional release of the Indemnifying Party from all liability arising out of such Third Party Claim.  An Indemnifying Party may not, without the prior written consent of the Indemnified Party, settle or compromise any Third Party Claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder.



10.05Tax Treatment.  Any payments made to any Party pursuant to this Section 10 shall constitute an adjustment of the Purchase Price for Tax purposes and shall be treated as such by Buyer and Seller on their Tax Returns to the greatest extent permitted by Law.



10.06Exclusive Remedy. The Parties acknowledge and agree that, after the Closing, the indemnification provisions in this Section 10 shall be the exclusive remedy of the Parties with respect to the transactions contemplated by this Agreement, except for (a) claims of Fraud or (b) equitable relief permitted by Section 9.01 and Section 11.11.



11.Miscellaneous.



11.01Governing Law.  This Agreement shall be governed by the Laws of the State of Delaware without giving effect to any rule or provision thereof which would cause the application of the Law of any other state.  EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT. The Parties (a) hereby irrevocably and unconditionally submit to the jurisdiction of the state and federal courts located in Delaware for the purpose of any suit, action or other proceeding arising out of or based upon this Agreement, (b) agree not to commence any suit, action or other proceeding arising out of or based upon this Agreement except in the state and federal courts located in Delaware, and (c) hereby waive, and agree not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Agreement or the subject matter hereof may not be enforced in or by such courts.



11.02Entire Agreement. This Agreement (including the Annexes, Exhibits and Schedules hereto), together with the other agreements, documents and instruments referred to herein, constitutes the entire agreement of the Parties and supersedes all prior agreements and undertakings (including any indication of interest or any letter of intent entered into between the Parties), both written and oral, between the Parties with respect to the subject matter hereof and, except as otherwise expressly provided herein, is not intended to confer upon any other Person any rights or remedies hereunder.  There have been and are no representations, warranties or covenants between the Parties other than those set forth or provided for in this Agreement and the other agreements and instruments referred to herein.   



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11.03Notices.  Any notice to be given hereunder shall be deemed given and sufficient if in writing and (a) delivered by hand or by reputable overnight courier, (b) mailed by registered or certified mail or (c) sent by email (.PDF or .TIF attachment).  Notices and communications to Buyer or Seller will, unless another address is specified in writing, be sent to the address indicated below:



To Seller:

With a copy to (which shall not constitute notice) to:



To Buyer:

With a copy to (which shall not constitute notice) to:



11.04Incorporation of Terms. The introductory language and Recitals set forth above, and the Annexes, Exhibits and Schedules identified herein, are incorporated into this Agreement by reference and made a part hereof.



11.05Severability. Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or otherwise affecting the validity or enforceability of any of the

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terms or provisions of this Agreement in any other jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, the provision shall be interpreted to be only so broad as is enforceable.



11.06Waiver. Unless prohibited by Law, the covenants, obligations, agreements or conditions hereunder may be waived by the other Party to whom such compliance is owed by an instrument in writing duly executed by the Party granting such waiver.  No waiver of any provision of this Agreement will be deemed, or will constitute, a waiver of any other term or provision, whether or not similar, or any subsequent breach or failure to comply with any such covenant, obligation, agreement or condition, nor will any waiver constitute a continuing waiver.   



11.07Amendment. This Agreement may not be amended or modified except by an instrument in writing signed by or on behalf of each of the Parties.



11.08Assignment; Binding Effect. Neither Party may assign, transfer or otherwise encumber this Agreement or its rights or obligations hereunder, in whole or in part, whether voluntarily or by operation of Law, without the prior written consent of the other Party, and any attempted assignment without such consent shall be void and without legal effect; provided that Buyer may assign or transfer its rights and obligations under this Agreement, in whole or from time to time in part, to any Affiliate of Buyer, provided that such transfer or assignment shall not relieve Buyer of its obligations hereunder or enlarge, alter or change any obligation of any Party hereto.  Subject to the preceding sentence, this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.



11.09Benefit. Subject to the following sentence, but notwithstanding anything contained in this Agreement to the contrary, nothing in this Agreement, express or implied, is intended to confer on any Person other than the Parties hereto or their respective heirs, successors, executors, administrators and assigns any rights, remedies, obligations or Liabilities under or by reason of this Agreement. Each of the Buyer Indemnified Parties and the Seller Indemnified Parties is a third party beneficiary of, and entitled to enforce the provisions of, this Agreement.



11.10Disclosure Schedule. Seller has prepared the schedules attached to this Agreement (individually, a “Schedule” and, collectively, the “Disclosure Schedule”) and delivered them to Buyer on the date hereof.  The Schedules shall be arranged by number to correspond to the sections of this Agreement, and Seller shall be permitted to include in the Disclosure Schedule any qualifications, disclosure or exceptions with respect to any subsection of Section 7.  Any fact or item disclosed on any Schedule shall be deemed disclosed on all other Schedules to which an appropriate cross reference is made or on all other Schedules where it is reasonably apparent on its face that such disclosure applies to such other Schedules of the Disclosure Schedule.  The Disclosure Schedule shall qualify the representations and warranties set forth in this Agreement or set forth other information required by this Agreement but shall not otherwise vary, change or alter the language of the representations and warranties contained in this Agreement or be interpreted as additional or independent representations or warranties.  The inclusion of any item on any Schedule shall not constitute an admission that a violation, right of termination, default, liability or other obligation of any kind exists with respect to such item, but rather is intended only to qualify certain representations and warranties in this Agreement and/or to set forth other information required by this Agreement.

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11.11Specific Performance.  The Parties agree that irreparable damage may occur in the event that any of the provisions of this Agreement are not performed in accordance with their specific terms or are otherwise breached and that any breach of this Agreement by a Party could not be adequately compensated in all cases by monetary damages alone.  It is accordingly agreed that the parties shall be entitled to an injunction, specific performance and other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof, in addition to any other remedy to which they are entitled in Law or in equity.  Each of the Parties agrees that it will not oppose the granting of an injunction, specific performance and other equitable relief on the basis that the other Party has an adequate remedy at Law or that any award of specific performance is not an appropriate remedy for any reason at Law or in equity.  Any Party seeking an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement shall not be required to provide any bond or other security in connection with such order or injunction.



11.12Negotiation of Agreement. The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event of an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.



11.13Facsimile Signature; Counterparts. This Agreement may be executed and delivered by electronic means (including by e-signature or by e-mail in .PDF or .TIF form) of original signatures and may be executed in counterparts, each of which shall be considered one and the same agreement, and shall become effective when such counterparts have been signed by each Party and delivered to the other Party.



[Signature page to follow]

 

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IN WITNESS WHEREOF, the Parties have executed this Asset Purchase Agreement as of the date first written above.

 

 

BUYER:

 

ROMAN HEALTH VENTURES INC.

 

 

 

 

SELLER:

 

VERU INC.

 

 



 

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