Restructuring Support Agreement, dated May 31, 2020, by and between the Company and Icahn Enterprise Holdings L.P. (dba IEH Biopharma, LLC)

voted on the Plan, the proposed transferor Supporting Noteholder must first vote such Claims in accordance with Section 3(a) or (ii) have not yet been and may not yet be voted on the Plan and such Qualified Marketmaker does not Transfer such Claims or Interests to a subsequent transferee prior to the third (3rd) Business Day prior to the expiration of the applicable Voting Deadline (such date, the “Qualified Marketmaker Joinder Date”), such Qualified Marketmaker shall be required to (and the transfer documentation to the Qualified Marketmaker shall have provided that it shall), on the first (1st) Business Day immediately following the Qualified Marketmaker Joinder Date, become a Supporting Noteholder with respect to such Claims in accordance with the terms hereof (including the obligation to vote in favor of the Plan) and shall vote in favor of the Plan in accordance with Section 3(a) hereof; provided, that, the Qualified Marketmaker shall automatically, and without further notice or action, no longer be a Supporting Noteholder with respect to such Claims at such time that the transferee of such Claims becomes a Supporting Noteholder, with respect to such Claims.

(e)           Grace Period.(2)  Each Supporting Noteholder agrees that the Grace Period shall be extended until and terminate, automatically without any notice or action, upon the earliest to occur of (the “Grace Period Termination”) (i) indefeasible payment in full in cash of all Obligations under the Convertible Notes pursuant to the terms of the Convertible Notes Indenture (as well as all of IEH’s and the Trustee’s reasonable and documented fees and expenses, including attorneys’ fees) pursuant to a Permitted Refinancing on or before the Permitted Refinancing Deadline, (ii) the Petition Date, (iii) the termination of the Support Period, (iv) at the time of any breach or failure to fulfill or comply with any obligations under Section 5 of the Convertible Notes Agreement unless expressly permitted under this Agreement, or (v) as may be otherwise agreed by the Company and the Supporting Noteholder in a signed agreement. For the avoidance of doubt, upon the Grace Period Termination all Obligations shall be accelerated and immediately due and payable in full in cash.  For further avoidance of doubt, during the Support Period, the Supporting Noteholder agrees to forbear from taking, and hereby directs the Trustee to forbear from taking, any of the Enforcement Actions. The Supporting Noteholder further agrees that if the Trustee takes any Enforcement Action inconsistent with such the Supporting Noteholder’s obligations under this Agreement with respect such Enforcement Action, such Supporting Noteholder shall use commercially reasonable efforts to cause the Trustee to cease and refrain from taking such Enforcement Action.  For the avoidance of doubt, any portion of the Convertible Notes rolled up into the DIP Facility pursuant to any DIP Order shall be considered part of the DIP Facility and shall not constitute Convertible Notes for any and all purposes under this Agreement.

(f)            D&O Claims.  Regardless of whether or not the Bankruptcy Court approves the releases set forth in the Term Sheet against the Released Parties, during the Support Period and after the Effective Date, the Supporting Noteholder (in any capacity) hereby covenants and agrees not to pursue any claims that the Supporting Noteholder may have against the Released Parties, including the current and former directors and officers of the Company.

(g)           DIP Facility. The Supporting Noteholder agrees to work in good faith to negotiate and execute the DIP Term Sheet.  Subject to the conditions set forth in the DIP Term

(2)  Capitalized terms used in this Section 3(e) and not otherwise defined shall have the meanings ascribed in the Convertible Notes Agreement.

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Sheet, the Supporting Noteholder agrees to (i) work in good faith to negotiate and execute the DIP Credit Agreement and to prepare the DIP Orders, (ii) use its commercially reasonable efforts to assist the Company in obtaining entry of and to support such entry of the DIP Orders, and (iii) object to and not propose, seek approval for, or support any debtor in possession financing that is not consistent with the DIP Facility, DIP Term Sheet, and DIP Credit Agreement.

(h)           Exit Facility. The Supporting Noteholder agrees to work in good faith to negotiate and execute the Exit Financing Commitment Letter.  Subject to the conditions set forth in the Exit Financing Commitment Letter, the Supporting Noteholder agrees to (i) work in good faith to negotiate and execute the Exit Facility credit agreement, (ii) use its commercially reasonable efforts to assist the Company in obtaining approval of the Exit Facility and any documentation thereof in the Confirmation Order, and (iii) object to and not propose, seek approval for, or support any financing to consummate the Plan that is not consistent with the Exit Facility, Exit Financing Commitment Letter, and Exit Facility credit agreement.

(i)            New Corporate Governance Documents.  The Supporting Noteholder hereby agrees to provide drafts of the New Corporate Governance Documents through the Supporting Noteholder’s Counsel to Weil no later than fourteen (14) calendar days before the Voting Deadline.

4.             Agreements of the Company.

(a)           General Covenants.

i.              The Company acknowledges and agrees to the provisions in Section 3(e) of this Agreement;

ii.             Subject to the conditions set forth in the DIP Term Sheet, the Company agrees to (i) work in good faith to negotiate and execute the DIP Credit Agreement and to finalize the proposed DIP Orders, (ii) use commercially reasonable efforts to obtain entry of and to support such entry of the DIP Orders, and (iii) object to and not propose, seek approval for, or support any debtor in possession financing that is not consistent with the DIP Facility, DIP Term Sheet, and DIP Credit Agreement;

iii.            Subject to the conditions set forth in the Exit Financing Commitment Letter, the Company agrees to (i) work in good faith to negotiate and execute the Exit Facility credit agreement, (ii) use its commercially reasonable efforts in obtaining approval of the Exit Facility and any documentation thereof in the Confirmation Order, and (iii) object to and not propose, seek approval for, or support any financing to consummate the Plan that is not consistent with the Exit Facility, Exit Financing Commitment Letter, and Exit Facility credit agreement;

iv.            The Plan shall provide that all obligations in respect of the Convertible Notes constitute allowed claims in an amount agreed between the Debtors and the Supporting Noteholder, which shall not be less than

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$169,165,000.00 plus accrued interest, fees and expenses (including the Supporting Noteholder’s and Trustee’s reasonable fees and expenses); and

v.             The Company shall redeem $1,000,000 of principal amount of the Convertible Notes for cash in an equal amount to be paid to the Supporting Noteholder no later than three (3) business days from the Support Effective Date.

(b)           Support Period Covenants.  The Company agrees that the Company shall, and shall cause each of its subsidiaries included in the definition of Company, to:

i.          not rescind, cancel, modify, supplement or replace its Preferred Stock Rights Agreement, dated as of December 30, 2019, or execute or implement any agreement, plan or document with terms or intent similar thereto;

ii.         (i) not take or permit any action to (w) cause an “ownership change” of the Company (within the meaning of Section 382 of the Code), other than any ownership change resulting from any action taken by or caused by the Supporting Noteholder or any Affiliate thereof on or after April 4, 2020 (an “Ownership Change”), (x) amend any of its income tax returns, (y) file any income tax return in a manner inconsistent with past practice (unless otherwise required by law), or (z) dispose of any of its assets (or otherwise recognized income or gain) outside the ordinary course of business (other than as a result of or as contemplated by the Restructuring Transactions or this Agreement), in each case, to the extent such action would impair the value or availability for use of the Company’s net operating loss carryforwards, tax credits, or other tax attributes for U.S. federal income tax purposes as of the Company’s taxable year ending on December 31, 2019 (collectively, the “Tax Attributes”), assuming, for avoidance of doubt, that since January 1, 2013, an Ownership Change has not occurred as of the Support Effective Date  and (ii) shall seek entry of an Order of the Bankruptcy Court, enjoining actions by holders of Interests that could impair the value or availability for use of the Company’s Tax Attributes as compared to the Support Effective Date (the “No Trading Order”);

iii.        support and take all actions necessary or reasonably requested by the  Supporting Noteholder to effectuate and facilitate the Solicitation, approval of the Disclosure Statement, approval and entry of the Confirmation Order, and confirmation and consummation of the Plan within the timeframes contemplated by this Agreement;

iv.        work in good faith to (A) negotiate, deliver and execute the remaining Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement and (B) obtain (1) approval by the Bankruptcy Court of the Solicitation materials and (2) entry of the Confirmation Order by the Bankruptcy Court in accordance with the Bankruptcy Code, the Bankruptcy Rules and the timeframes set forth in this Agreement;

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v.         use commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals for the Restructuring Transactions embodied in the Plan, if any;

vi.        not take any action that is inconsistent in any material respect with, or is intended to frustrate, delay or impede in any material respect the timely approval and entry of the Confirmation Order and consummation of the Restructuring Transactions;

vii.       not directly or indirectly, through any person or entity (including, without limitation, any trustee), seek, solicit, propose, support, assist, fail to object to, engage in negotiations in connection with or participate in the formulation, preparation, filing, or prosecution of any restructuring or reorganization of any Debtor that is inconsistent with the Plan or object to or take or fail to take any other action that is inconsistent with or that would reasonably be expected to prevent, interfere with, delay, or impede the Solicitation, approval of the Disclosure Statement, approval and entry of the Confirmation Order or the confirmation and consummation of the Plan and the Restructuring Transactions;

viii.      provide draft copies of all motions or applications and other documents related to the Restructuring Transaction (including all substantive “first day” and “second day” motions and orders, the Plan, the Disclosure Statement, ballots, Plan Supplement and other Solicitation materials in respect of the Plan and any proposed amended version of the Plan or the Disclosure Statement, and a proposed Confirmation Order) the Company intends to file with the Bankruptcy Court to the Supporting Noteholder’ Counsel, if reasonably practicable, at least four (4) days prior to the date when the Company intends to file any such pleading or other document, and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement (provided, that if delivery of such motions, orders, or materials at least four (4) days in advance is not reasonably practicable prior to filing, such motion, order or material shall be delivered as soon as reasonably practicable prior to filing) and shall consult in good faith with the Supporting Noteholder’ Counsel regarding the form and substance of any such proposed filing with the Bankruptcy Court; provided, however, the Company shall not file any Definitive Document without first obtaining the approval of the Supporting Noteholder as required in Section 2(b) hereof.

ix.        to the extent any legal or structural impediments arise that would prevent, hinder or delay the consummation of the Plan and Restructuring Transactions contemplated by the Definitive Documents, negotiate, in good faith, appropriate additional or alternative provisions to address any such impediments; provided, however, that the Parties agree no such legal or structural impediments exist as of the Support Effective Date;

x.         timely file with the Bankruptcy Court a written objection to any motion filed with the Bankruptcy Court by a third party seeking the entry of an

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order (A) directing the appointment of an examiner with expanded powers or a trustee, (B) converting the Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code, (C) dismissing the Chapter 11 Cases, or (D) modifying or terminating the Company’s exclusive right to file and/or solicit acceptances of a plan of reorganization;

xi.        pay in cash all reasonable and documented fees and expenses of Supporting Noteholder (including attorney’s fees) and the Trustee within five (5) business days of receipt of an invoice therefor, (A) one business day immediately preceding the Petition Date and (B) subject to any required approvals of the Bankruptcy Court, from time to time thereafter (but not more often than monthly and for payment on the Effective Date) regardless of whether the Restructuring Transaction is or has been consummated;

xii.       if the Company becomes aware of any breach by the Company or its representatives of any of the obligations, representations, warranties or covenants of the Company set forth in this Agreement or the Plan, the Company shall furnish prompt written notice (and in any event within three (3) business days of obtaining actual knowledge) to counsel to the Supporting Noteholder and shall use commercially reasonable efforts to take all remedial action reasonably necessary as soon as reasonably practicable to cure such breach;

xiii.      operate their business in the ordinary course in a manner consistent with past practice in all material respects (other than any changes in operations resulting from or relating to the Plan or the commencement of the Chapter 11 Cases with the Supporting Noteholder’s consent);

xiv.     to the extent any legal or structural impediments arise that would prevent, hinder or delay the consummation of the Plan and Restructuring Transactions contemplated by the Definitive Documents, negotiate, in good faith, appropriate additional or alternative provisions to address any such impediments to the Supporting Noteholder’s satisfaction;

xv.      not acquire or divest (by merger, exchange, consolidation, acquisition of stock or assets, or otherwise), or file any motion or application seeking authority to acquire or divest, (A) any corporation, partnership, limited liability company, joint venture, or other business organization or division or (B) the Company’s assets other than in the ordinary course of business or with the advance written consent of the Supporting Noteholder;

xvi.     not challenge the validity and enforceability of the Convertible Notes or the Obligations in any way, including seeking any such determination or the avoidance, disallowance, recharacterization, reduction, offset, recoupment or subordination of the Convertible Notes or the Obligations;

xvii.    not redeem, purchase, issue, acquire or offer to acquire any Interests, or pay any dividend or make any distribution on account thereof; and

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5.             Termination of Agreement.

(a)           This Agreement shall terminate (i) automatically upon completion of (x) the Permitted Refinancing prior to the Permitted Refinancing Deadline or (y) an Alternative Restructuring, (ii) automatically upon the Effective Date, or (iii) unless cured prior thereto, three (3) business days following the delivery of written notice (in accordance with Section 19 hereof) that has not been retracted by the sender in writing from: (x) the Supporting Noteholder to the Company at any time after the occurrence and during the continuance of any Creditor Termination Event (as defined below); or (y) the Company to the Supporting Noteholder at any time after the occurrence and during the continuance of any Company Termination Event (as defined below).  Notwithstanding any provision to the contrary in this Section 5, no Party may exercise any of its respective termination rights as set forth herein if such Party has breached, or failed to perform or comply in all material respects with the terms and conditions of this Agreement (unless such failure to perform or comply arises as a result of another Party’s actions or inactions), with such failure to perform or comply causing, or resulting in, the occurrence of a Creditor Termination Event or Company Termination Event specified herein.  The Company acknowledges and agrees and shall not dispute that after the commencement of the Chapter 11 Cases, the giving of notice of termination of this Agreement by any Party pursuant to this Agreement shall not be a violation of the automatic stay of section 362 of the Bankruptcy Code (and the Company hereby waives, to the fullest extent permitted by law, the applicability of the automatic stay to the giving of such notice); provided, however, that nothing herein shall prejudice any Party’s rights to argue that the giving of notice of default or termination was not proper under the terms of this Agreement.

(b)           A “Creditor Termination Event” shall mean any of the following:

i.          the Supporting Noteholder elects to terminate this Agreement and its obligations under the Term Sheet and DIP Term Sheet because it is not satisfied with its diligence review in its sole discretion; provided, however, that the Supporting Noteholder may not terminate or deliver a notice of termination due to the foregoing Creditor Termination Event before June 30, 2020 if reasonably requested diligence information is being provided by the Company; provided, further, that the Supporting Noteholder shall be permitted in all circumstances to terminate or deliver a notice of termination due to the foregoing Creditor Termination Event on or before July 6, 2020.

ii.         the breach or default by the Company or its failure to fulfill or comply with any of the undertakings, representations, warranties, or covenants of the Company set forth herein (for the avoidance of doubt, including the Term Sheet and DIP Term Sheet) or in the Convertible Notes Agreement in any material respect;

iii.        the issuance by any governmental authority, including any regulatory authority or court of competent jurisdiction, of any ruling, judgment, or order enjoining the consummation of or rendering illegal the Plan or the Restructuring, and either (A) such ruling, judgment, or order has been issued at the request of or with the acquiescence of the Company, or (B) in all other

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circumstances, such ruling, judgment, or order has not been stayed, reversed, or vacated within ten (10) business days after such issuance;

iv.        if a Permitted Refinancing has not occurred by the Permitted Refinancing Deadline and the Company has not satisfied any of the following milestones:(3)

1.              On or before July 9, 2020, the Debtors and IEH, as Exit Lender, shall execute the Exit Financing Commitment Letter;

2.              The Debtors shall commence the respective prearranged Chapter 11 Cases in the Bankruptcy Court no later than July 13, 2020;

3.              The Debtors shall file their Schedules D and E/F of Assets and Liabilities, and the Statements of Financial Affairs no later than seven (7) business days after the Petition Date;

4.              The Debtors shall obtain the Bar Date Order no later than five (5) business days after the Petition Date;

5.              Each Debtor shall file the Plan and Disclosure Statement by no later than the Petition Date;

6.              The Debtors shall file a motion seeking approval of the DIP Facility on the Petition Date;

7.              The Interim DIP Order shall be entered in the Chapter 11 Cases by no later than five (5) business days after the Petition Date, and shall not be reversed, vacated, stayed, appealed, or subject to a request for a new trial, reargument, or rehearing as of the entry of the Final DIP Order;

8.              The No Trading Order shall have been entered by the Bankruptcy Court by no later than three (3) calendar days after the Petition Date, and shall become a Final Order by no later than 35 days after the Petition Date;

(3)  The Supporting Noteholder may determine, by no later than July 6, 2020, in its sole discretion to eliminate the bar date process and GUC Account and permit all Allowed General Unsecured Claims (as defined in the Term Sheet) to be paid in the ordinary course of business; provided, that to the extent the Supporting Noteholder determines to revert to such a timeline, the Milestones (including for the avoidance of doubt, the Petition Date) shall be modified as mutually agreed by the Company and the Supporting Noteholder.

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9.              A Final Order of the Bankruptcy Court approving the assumption of this Agreement and the Termination Fee (as defined below) shall be entered by no later than 35 days after the Petition Date;

10.       The Final DIP Order shall be entered in the Chapter 11 Cases by no later than thirty-five (35) calendar days after the Petition Date, and shall not be reversed, vacated, stayed, appealed, or subject to a request for a new trial, reargument, or rehearing as of the Effective Date;

11.       An order approving the Disclosure Statement shall be entered in the Chapter 11 Cases by no later than thirty-five (35) calendar days after the Petition Date;

12.       An order confirming the Plan shall be entered in the applicable Chapter 11 Cases by no later than seventy-five (75) calendar days after the Petition Date; and

13.       The Effective Date shall occur no later than ninety (90) calendar days after the Petition Date, provided however, that the Company and Supporting Noteholder shall use commercially reasonable efforts to cause the Effective Date to occur as soon as is practicable after the entry of the Confirmation Order (including seeking waiver of any stay to consummate the Plan).

v.         an event of default occurs and is continuing under the DIP Credit Agreement, DIP Facility, DIP Orders, or Exit Facility Commitment Letter;

vi.        the Company files any plan of reorganization or liquidation (or disclosure statement related thereto) in the Chapter 11 Cases other than the Plan without the prior written consent of the Supporting Noteholder;

vii.       after filing of any Definitive Document with the Bankruptcy Court, (A) any amendment or modification to any such Definitive Document is made by the Company or (B) any pleading or request that seeks Bankruptcy Court approval to amend or modify any such Definitive Document is made by the Company, and such amendment, modification, request or filing is (1) inconsistent in any material respect with any Definitive Document and (2) not in form and substance reasonably acceptable to the Supporting Noteholder;

viii.      the Bankruptcy Court grants relief that is inconsistent in any material respect with any Definitive Document that has been filed with the Bankruptcy Court;

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ix.        (A) a trustee, receiver, or examiner with expanded powers is appointed in one or more of the Chapter 11 Cases, (B) the filing by the Company of a motion or other request for relief seeking to dismiss any of the Chapter 11 Cases or convert any of the Chapter 11 Cases to cases under Chapter 7 of the Bankruptcy Code, or (C) entry of an order by the Bankruptcy Court dismissing any of the Chapter 11 Cases or conversion of any of the Chapter 11 Cases to a case under Chapter 7 of the Bankruptcy Code;

x.         the Company challenges, or fails to defend, the validity and enforceability of the Convertible Notes or the Obligations in any way, including seeking any such determination or concerning the avoidance, disallowance, recharacterization, reduction, offset, recoupment or subordination of the Convertible Notes or the Obligations;

xi.        the Bankruptcy Court enters an order in the Chapter 11 Cases terminating the Company’s exclusive right to file or solicit a plan or plans of reorganization or liquidation pursuant to Section 1121 of the Bankruptcy Code;

xii.       the Company sells, or files any motion or application seeking authority to sell or abandon a portion of the Company’s assets outside the ordinary course without the prior written consent of the Supporting Noteholder;

xiii.      the Company (A) gives notice of termination of this Agreement, or (B) files a motion or pleading with the Bankruptcy Court seeking to reject or authority to terminate this Agreement;

xiv.     the Company fails to pay, in accordance with this Agreement, the Supporting Noteholder’s and the Trustee’s reasonable and documented fees and expenses, including attorneys’ fees, promptly upon invoice;

xv.      an order is (or orders are) entered by the Bankruptcy Court granting relief from the automatic stay, under Section 362 of the Bankruptcy Code, to the holder or holders of any security interest to permit any exercise of remedies as to any of the Company’s assets (other than in respect of collection solely from available insurance proceeds)  having a fair market value of $2,000,000 or more in the aggregate;

xvi.     the Company (A) seeks to enter into or the Bankruptcy Court approves an Alternative Restructuring or (B) provides notice to counsel to the Supporting Noteholder of its intent to enter into an Alternative Restructuring, including a refinancing of the Convertible Notes after the Permitted Refinancing Deadline;

xvii.    the Confirmation Order fails to expressly provide (A) that General Unsecured Claims (as defined in the Term Sheet), other than governmental claims, are discharged, and (B) that the GUC Amount from the GUC Account (as defined in the Term Sheet) shall be the sole consideration and distributions available in respect of General Unsecured Claims;

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xviii.   the GUC Amount shall be in excess of an amount reasonably acceptable to the Supporting Noteholder;

xix.     (w) an “Ownership Change,” (x) any amendment of the Company’s income tax returns, (y) any filing of the Company’s income tax returns in a manner inconsistent with past practice (unless otherwise required by law), or (z) any disposition of the Company’s assets (or other income or gain recognition) outside the ordinary course of business (other than as a result of or as contemplated by the Restructuring Transactions or this Agreement), in each case, to the extent such action would impair the value or availability for use of the Company’s Tax Attributes, assuming, for avoidance of doubt, that since January 1, 2013, an Ownership Change has not occurred as of the Support Effective Date;

xx.      if the Company fails to provide the Supporting Noteholder at least three (3) business days before the Petition Date an updated Ownership Change Analysis, based on facts known to the Company at such time, prepared by a “Big 4” accounting firm, but covering the additional period through a date that is no more than seven (7) days before the date of delivery, showing that no “ownership change” of the Company (within the meaning of Section 382 of the Code) has occurred; and/or

xxi.     the occurrence of any breach, Default or Event of Default under the Convertible Notes Indenture not caused by or related to the failure to make the Principal Payment on the Maturity Date.(4)

(c)           A “Company Termination Event” shall mean any of the following:

i.          the breach by the Supporting Noteholder of any of the undertakings, representations, warranties, or covenants of the Supporting Noteholder set forth herein in any material respect;

ii.         the board of directors, managers, members, or partners, as applicable, of any Company entity party hereto determines, after consultation with counsel, that continued performance under this Agreement would be reasonably expected to violate the exercise of its fiduciary duties under applicable law;

iii.        the issuance by any governmental authority, including any regulatory authority or court of competent jurisdiction, of any ruling, judgment, or order enjoining the consummation of or rendering illegal the Plan or the Restructuring, and (a) such ruling, judgment, or order has not been stayed, reversed, or vacated within ten (10) business days after such issuance despite the commercially reasonable efforts of the Company, (b) absent a prior agreement of the Supporting Noteholder, DIP Lenders, DIP Agent, or IEH as Exit Facility lender to modify the Plan or the Restructuring in such a manner as to moot the

(4)  Capitalized terms used in Section 5(b)(xxi) shall have the meanings ascribed in the Convertible Notes Agreement.

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aspects of the Plan or Restructuring enjoined or rendered illegal in their sole discretion;

iv.        if the Supporting Noteholder terminates this Agreement;

v.         the Bankruptcy Court enters an order (A) directing the appointment of a trustee in the Chapter 11 Cases, (B) converting the Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code, or (C) dismissing the Chapter 11 Cases absent a request for relief and despite opposition thereto by the Company;

vi.        the GUC Amount shall be less than the amount reasonably acceptable to the Company; and/or

vii.       if the Effective Date has not occurred by the Outside Date.

Notwithstanding the foregoing, any of the dates or deadlines set forth in  Section 5(a), 5(b) and 5(c) may be extended in writing by Agreement of the Company and the Supporting Noteholder (email being sufficient).

(d)           Mutual Termination.  This Agreement may be terminated by mutual agreement of the Company and the Supporting Noteholder, including upon the receipt of written notice delivered in accordance with Section 19 hereof.

(e)           Effect of Termination.  Subject to the proviso contained in Section 5(a) hereof, upon the termination of this Agreement in accordance with this Section 5, and except as provided in Section 13 hereof, this Agreement (and the Support Period and the Grace Period) shall forthwith become void and of no further force or effect and each Party shall, except as provided otherwise in this Agreement, be immediately released from its liabilities, obligations, commitments, undertakings and agreements under or related to this Agreement, the Term Sheet and DIP Term Sheet, the Exit Financing Commitment Letter, (and the Convertible Notes Agreement as to forbearance of rights and remedies during the Grace Period) and shall have all the rights and remedies that it would have had and shall be entitled to take all actions, whether with respect to the Restructuring or otherwise, that it would have been entitled to take had it not entered into this Agreement (or agreed to forbearance of rights and remedies during the Grace Period in the Convertible Notes Agreement), including all rights and remedies available to it under applicable law; provided, however, that in no event shall any such termination relieve a Party from liability for its breach or non-performance of its obligations hereunder prior to the date of such termination.

(f)            Termination Fee. If the Supporting Noteholder terminates this Agreement prior to the commencement of the Chapter 11 Cases for any reason other than the termination event set forth in Sections 5(b)(i), or 5(b)(iv)(1), then the Company shall promptly remit to Supporting Noteholder $5,000,000 (five million United States Dollars) in cash or add such amount to the principal amount of the Convertible Notes as of the date of termination.  If the Supporting Noteholder terminates this Agreement after the commencement of the Chapter 11 Cases as a result of a Creditor Termination Event under Sections 5(b)(ii); 5(b)(iv)(2),(3),(5) and (6); 5(b)(vi); 5(b)(vii); 5(b)(x); 5(b)(xii); 5(b)(xiii); 5(b)(xiv); 5(b)(xvi); 5(b)(xix) to the extent

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resulting from an action or omission by the Company, or 5(b)(xx); then the Company shall promptly remit to Supporting Noteholder $5,000,000 (five million United States Dollars) in cash or add such amount to the principal amount of the Convertible Notes as of the date of termination; provided, that for the avoidance of doubt (i) no Termination Fee will be due, if the Supporting Noteholder terminates this Agreement as a result of the Company’s determination that the DIP Term Sheet, Exit Facility, Commitment Letter or proposed amendments to the Term Sheet are not reasonably satisfactory, and (ii) no Termination Fee shall be payable upon the occurrence of a Permitted Refinancing prior to the Permitted Refinancing Deadline or a Termination of this Agreement upon completion of a Permitted Refinancing prior to the Permitted Refinancing Deadline.

(g)           No Waiver. If the Restructuring is not consummated, nothing herein shall be construed as a waiver by any Party of any or all of such Party’s rights, and the Parties expressly reserve any and all of their respective rights.  Pursuant to Federal Rule of Evidence 408 and any other applicable rules of evidence, this Agreement and all negotiations relating hereto shall not be admissible into evidence in any proceeding other than a proceeding to enforce its terms.

6.             Definitive Documents; Good Faith Cooperation; Further Assurances.

Each Party hereby covenants and agrees to cooperate with each other in good faith in connection with, and shall exercise commercially reasonable efforts with respect to the pursuit, approval, negotiation, execution, delivery, implementation, and consummation of the Plan and the Restructuring, as well as the negotiation, drafting, execution, and delivery of the Definitive Documents.  Furthermore, subject to the terms hereof, each of the Parties shall (i) take such action as may be reasonably necessary or reasonably requested by the other Parties to carry out the purposes and intent of this Agreement, including making and filing any required regulatory filings, and (ii) refrain from taking any action that would frustrate the purposes and intent of this Agreement.

7.             Representations and Warranties.

(a)           Each Party, severally (and not jointly), represents and warrants to the other Parties that the following statements are true, correct, and complete as of the date hereof (or as of the date a party becomes a Supporting Noteholder party hereto):

i.          such Party is validly existing and in good standing under the laws of its jurisdiction of incorporation or organization, and has all requisite corporate, partnership, limited liability company, or similar authority to enter into this Agreement and carry out the transactions contemplated hereby and perform its obligations contemplated hereunder; and the execution and delivery of this Agreement and the performance of such Party’s obligations hereunder have been duly authorized by all necessary corporate, limited liability company, partnership or other similar action on its part;

ii.         the execution, delivery, and performance by such Party of this Agreement does not and will not (A) violate any material provision of law, rule,

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or regulation applicable to it or any of its subsidiaries or its charter or bylaws (or other similar governing documents) or those of any of its subsidiaries, or (B) conflict with, result in a breach of, or constitute (with due notice or lapse of time or both) a default under any material debt obligation to which it or any of its subsidiaries is a party except for the filing of the Chapter 11 Cases and the execution, delivery, and performance of the DIP Agreement or related documents;

iii.        the execution, delivery, and performance by such Party of this Agreement does not and will not require any material registration or filing with, consent or approval of, or notice to, or other action, with or by, any federal, state or governmental authority or regulatory body, except such filings as may be necessary and/or required by the SEC or other securities regulatory authorities under applicable securities laws; and

iv.        this Agreement is the legally valid and binding obligation of such Party, enforceable against it in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium, or other similar laws relating to or limiting creditors’ rights generally.

(b)           The Supporting Noteholder represents and warrants to the other Parties that, as of the date hereof (or as of the date the Supporting Noteholder becomes a party hereto), such Supporting Noteholder (i) is the owner of the aggregate principal amount of the Convertible Notes or Interests set forth below its name on the signature page hereto (or below its name on the signature page of a Joinder Agreement for any Supporting Noteholder that becomes a party hereto after the date hereof) and does not own any other Convertible Notes or Interests, and/or (ii) has, with respect to the beneficial owners of such Convertible Notes, (A) sole investment or voting discretion with respect thereto, (B) full power and authority to vote on and consent to matters concerning such Convertible Notes or to exchange, assign, and transfer such Convertible Notes, and (C) full power and authority to bind or act on the behalf of, such beneficial owners.

(c)           The Supporting Noteholder makes the representations and warranties set forth in Section 20(c) hereof, and in each case, to the other Parties.

(d)           The Company represents and warrants that:

i.      as of the Support Effective Date and Plan Effective Date, the Company has not and will not have had an ownership change pursuant to Section 382 of the Code since January 1, 2013 that would impair the value or availability of the Company’s Tax Attributes, other than any ownership change resulting from any action taken by or caused by the Supporting Noteholder or any Affiliate thereof on or after April 4, 2020; and

ii.     from and after the Support Effective Date, the Company shall not have (x) amended any of its income tax returns, (y) filed any income tax return in a matter inconsistent with past practice (unless otherwise required by law), or (z) disposed of any of its assets (or otherwise recognized income or gain) outside the ordinary course of business (other than as a result of or as contemplated by the Restructuring Transactions or this Agreement), in each case,

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to the extent such action would impair the value or availability for use of the Company’s Tax Attributes.

8.              Disclosure; Publicity.

The Company shall submit drafts to the Supporting Noteholder’s Counsel of any press releases that constitute disclosure of the existence of the terms of this Agreement or any amendment to the terms of this Agreement at least (1) business day prior to making any such disclosure, and consult with the Supporting Noteholder’s with respect thereto in good faith.  Except as required by applicable law or otherwise permitted under the terms of any other agreement between the Company and any Supporting Noteholder, no Party or its advisors shall disclose to any person or entity (including, for the avoidance of doubt, any other Party), other than advisors to the Company, the principal amount or percentage of the Convertible Notes held by any Supporting Noteholder without such Supporting Noteholder’s consent; provided, however, that if such disclosure is required by law, subpoena, or other legal process or regulation, the disclosing Party shall afford the relevant Supporting Noteholder a reasonable opportunity to review and comment in advance of such disclosure and consult with the Supporting Noteholder with respect thereto in good faith, and shall take all reasonable measures to limit such disclosure (the expense of which, if any, shall be borne by the relevant Supporting Noteholder).  Notwithstanding the provisions in this Section 8, any Party may disclose, to the extent consented to in writing by the Supporting Noteholder, such Supporting Noteholder’s individual holdings.

9.             Amendments and Waivers.

(a)           Other than as set forth in Section 9(b), this Agreement, including any exhibits or schedules hereto, may not be waived, modified, amended, or supplemented except with the written consent of the Company and the Requisite Creditors (such consent to be provided or withheld by the Supporting Noteholder on the terms and conditions otherwise set forth in this Agreement, and if not expressly set forth in this Agreement, then not to be unreasonably withheld, conditioned, or delayed);

(b)           Notwithstanding Section 9(a):

i.          any waiver, modification, amendment, or change to this Section 9 shall require the written consent of all of the Parties;

ii.         any modification, amendment, or change to the definition of “Requisite Creditors” shall require the written consent of each Supporting Noteholder included in such definition and the Company;

iii.        any material modification, amendment, or change with respect to the DIP Term Sheet, DIP Facility, or DIP Orders shall require the consent of the DIP Lender and DIP Agent; and

iv.        any material modification, amendment, or change with respect to the Exit Financing Commitment Letter or the Exit Facility shall require the consent of IEH as Exit Facility lender.

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10.          Effectiveness.

This Agreement shall become effective and binding upon each Party upon the execution and delivery by all Parties of an executed signature page hereto and shall become effective and binding on all Parties on the Support Effective Date.

11.          Governing Law; Jurisdiction; Waiver of Jury Trial.

(a)           Except to the extent that the Bankruptcy Code or other federal law is applicable or to the extent that a Definitive Document provides otherwise, the rights, duties, and obligations arising under the Agreement shall be governed by, and construed and enforced in accordance with, the internal laws of the State of New York, without giving effect to the principles of conflicts of laws thereof.

(b)           Each of the Parties irrevocably agrees that any legal action, suit, or proceeding arising out of or relating to this Agreement brought by any Party shall be brought and determined in any federal or state court in New York, New York (“NY Courts”) and each of the Parties hereby irrevocably submits to the exclusive jurisdiction of the aforesaid courts for itself and with respect to its property, generally and unconditionally, with regard to any such proceeding arising out of or relating to this Agreement or the Restructuring.  Each of the Parties agrees not to commence any proceeding relating to this Agreement or the Restructuring except in the NY Courts, other than proceedings in any court of competent jurisdiction to enforce any judgment, decree, or award rendered by any NY Courts.  Each of the Parties further agrees that notice as provided in Section 19 shall constitute sufficient service of process and the Parties further waive any argument that such service is insufficient.  Each of the Parties hereby irrevocably and unconditionally waives, and agrees not to assert, by way of motion or as a defense, counterclaim or otherwise, in any proceeding arising out of or relating to this Agreement or the Restructuring, (i) any claim that it is not personally subject to the jurisdiction of the NY Courts for any reason, (ii) that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment, or otherwise) and (iii) that (A) the proceeding in any such court is brought in an inconvenient forum, (B) the venue of such proceeding is improper, or (C) this Agreement, or the subject matter hereof, may not be enforced in or by such courts.  Notwithstanding the foregoing, during the pendency of the Chapter 11 Cases, all proceedings contemplated by this Section 11(b) shall be brought in the Bankruptcy Court and each of the Parties (a) irrevocably submits to the exclusive jurisdiction of the Bankruptcy Court; (b) waives any objection to laying venue in any such action or proceeding in the Bankruptcy Court; and (c) waives any objection that the Bankruptcy Court is an inconvenient forum or does not have jurisdiction over any Party to this Agreement.

(c)           EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER THEORY).  EACH PARTY (I) CERTIFIES THAT NO REPRESENTATIVE, AGENT, OR ATTORNEY

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OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (II) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

12.          Specific Performance/Remedies.

It is understood and agreed by the Parties that money damages would not be a sufficient remedy for any breach of this Agreement by any Party and each non-breaching Party shall be entitled to seek specific performance and injunctive or other equitable relief as a remedy of any such breach, without the necessity of proving the inadequacy of money damages as a remedy, including an order of the Bankruptcy Court requiring any Party to comply promptly with any of its obligations hereunder.  Except as set forth in Section 5(f) hereof, the Parties agree that such relief will be their only remedy against the applicable other Party with respect to any such breach, and that in no event will any Party be liable for momentary damages (including consequential, special, indirect or punitive damages or damages for lost profits).

13.          Survival.

Notwithstanding the termination of this Agreement pursuant to Section 5 hereof, the agreements and obligations of the Parties in this Section 13 and Sections 5(e), 5(f), 5(g), 12, 15, 16, 17, 18, 19, 20 and 21 hereof (and any defined terms used in any such Sections) shall survive such termination and shall continue in full force and effect in accordance with the terms hereof; provided, however, that any liability of a Party for failure to comply with the terms of this Agreement shall survive such termination.

14.          Headings.

The headings of the sections, paragraphs, and subsections of this Agreement are inserted for convenience only and shall not affect the interpretation hereof or, for any purpose, be deemed a part of this Agreement.

15.          Successors and Assigns; Severability; Several Obligations.

This Agreement is intended to bind and inure to the benefit of the Parties and their respective successors, permitted assigns, heirs, executors, administrators and representatives; provided, however, that nothing contained in this Section 15 shall be deemed to permit Transfers of the Convertible Notes or Claims arising under the Convertible Notes other than in accordance with the express terms of this Agreement.  If any provision of this Agreement, or the application of any such provision to any person or entity or circumstance, shall be held invalid or unenforceable in whole or in part, such invalidity or unenforceability shall attach only to such provision or part thereof and the remaining part of such provision hereof and this Agreement shall continue in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party.  Upon any such determination of invalidity, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in order that the

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transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.  The agreements, representations, and obligations of the Parties are, in all respects, ratable and several and neither joint nor joint and several.

16.          No Third-Party Beneficiaries.

Unless expressly stated herein, this Agreement shall be solely for the benefit of the Parties and no other person or entity shall be a third-party beneficiary hereof.

17.          Prior Negotiations; Entire Agreement.

The Convertible Notes Agreement and this Agreement, including the exhibits and schedules hereto (including the Term Sheet), constitutes the entire agreement of the Parties and supersedes all other prior negotiations, with respect to the subject matter hereof and thereof, except that the Parties acknowledge that any confidentiality agreements (if any) heretofore executed between the Company and each Supporting Noteholder shall continue in full force and effect in accordance with their terms; provided, however, that this Agreement supersedes the Convertible Notes Agreement solely to the extent this Agreement is expressly inconsistent with the Convertible Notes Agreement.

18.          Counterparts.

This Agreement may be executed in several counterparts, each of which shall be deemed to be an original, and all of which together shall be deemed to be one and the same agreement.  Execution copies of this Agreement may be delivered by electronic mail, or otherwise, which shall be deemed to be an original for the purposes of this paragraph.

19.          Notices.

All notices hereunder shall be deemed given if in writing and delivered, if contemporaneously sent by electronic mail or overnight courier (including via Fedex, DHL, UPS, etc.) to the following addresses:

                                 (1)          If to the Company, to:

VIVUS, Inc.
900 East Hamilton Avenue, Suite 550.
Campbell, CA 95008
Attn: John Amos

( ***@***)
John L. Slebir
( ***@***)

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With a copy to:

Weil, Gotshal & Manges LLP

767 Fifth Avenue

New York, NY 10153

Attention:   Matt Barr, Esq.

( ***@***)

Gabriel A. Morgan, Esq.

( ***@***)

Natasha S. Hwangpo, Esq.

( ***@***)

(2)           If to the Supporting Noteholder, or a transferee thereof, to the address set forth below the Supporting Noteholder’s signature (or as directed by any transferee thereof), as the case may be, with copies to:

Dentons US LLP

1221 Avenue of the Americas

New York, NY 10020

Attention:   Oscar N. Pinkas, Esq.

( ***@***)

Brian E. Greer, Esq.

( ***@***)

Lauren Macksoud

( ***@***)

Any notice given by electronic mail, or overnight courier (including via Fedex, DHL, UPS, etc.) shall be effective when received.  Any notice given by electronic mail shall be effective upon oral, machine, or electronic mail (as applicable) confirmation of transmission.

20.          No Solicitation; Representation by Counsel; Adequate Information.

(a)           This Agreement is not and shall not be deemed to be a solicitation for votes in favor of the Plan in the Chapter 11 Cases.  The acceptances of any Supporting Noteholder with respect to the Plan will not be solicited until such Supporting Noteholder has received the Disclosure Statement and related ballots and solicitation materials. In addition, this Agreement is not and shall not be deemed an offer with respect to the issue or sale of securities to any person or entity, or the solicitation of an offer to acquire or buy securities, in any jurisdiction where such offer or solicitation would be unlawful.

(b)           Each Party acknowledges that it has had an opportunity to receive information from the Company and that it has been represented by counsel in connection with this Agreement and the transactions contemplated hereby.  Accordingly, any rule of law or any legal decision that would provide any Party with a defense to the enforcement of the terms of this Agreement against such Party based upon lack of legal counsel shall have no application and is expressly waived.

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(c)           The Supporting Noteholder acknowledges, agrees, and represents to the other Parties that it (i) is a “qualified institutional buyer” as such term is defined in Rule 144A of the Securities Act, (ii) is an “accredited investor” as such term is defined in Rule 501 of Regulation D of the Securities Act, (iii) understands that if it is to acquire any securities, as defined in the Securities Act, pursuant to the Restructuring, such securities have not been registered under the Securities Act and that such securities are, to the extent not acquired pursuant to section 1145 of the Bankruptcy Code, being offered and sold pursuant to an exemption from registration contained in the Securities Act, based in part upon such Supporting Noteholder’s representations contained in this Agreement and cannot be sold unless subsequently registered under the Securities Act or an exemption from registration is available, and (iv) has such knowledge and experience in financial and business matters that such Supporting Noteholder is capable of evaluating the merits and risks of the securities to be acquired by it (if any) pursuant to the Restructuring and understands and is able to bear any economic risks with such investment.

21.          No Waiver of Participation and Preservation of Rights.

(a)           For the avoidance of doubt, nothing in this Agreement shall limit any rights of any Party, subject to applicable law and the agreements contained in any Definitive Document to (a) initiate, prosecute, appear, or participate as a party in interest in any contested matter or adversary proceeding to be adjudicated in the Chapter 11 Cases so long as such initiation, prosecution, appearance or participation and the position advocated in connection therewith are not inconsistent with this Agreement or the Definitive Documents, (b) object to any motion to approve or confirm, as applicable, any other plan of reorganization, sale transaction, or any motion related thereto filed in the Chapter 11 Cases, to the extent the terms of any such motions, plans or transactions are inconsistent with this Agreement or any Definitive Document, (c) appear as a party in interest in the Chapter 11 Cases for the purpose of contesting whether any matter of fact is or results in a breach of, or is inconsistent in any material respect with this Agreement or any Definitive Document, and (d) file a proof of claim, if required.

(b)           Except as provided in any Definitive Document, nothing herein or therein is intended to, does or shall be deemed in any manner to, waive, limit, impair or restrict the ability of any Party to protect and preserve its rights, remedies and interests, including Claims against the Company.  Without limiting the foregoing in any way, if this Agreement is terminated in accordance with it terms for any reason, each Party fully reserves any and all of its respective rights, remedies and interests.

22.          Time is of the Essence.

The Parties acknowledge and agree that time is of the essence and that they must each use commercially reasonable efforts to effectuate and consummate the Restructuring Transaction as soon as reasonably practicable.

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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed and delivered by their respective duly authorized officers, solely in their respective capacity as officers of the undersigned and not in any other capacity, as of the date first set forth above.

[Signature Page to Restructuring Support Agreement]

ICAHN ENTERPRISES HOLDINGS L.P. (DBA IEH BIOPHARMA LLC),

IN ITS CAPACITY AS SUPPORTING NOTEHOLDER

Principal Amount of Convertible Notes:  $170,165,000.00

Number of Common Stock (as applicable):   N/A             

Notice Address:

Icahn Enterprises Holdings L.P. (dba IEH Biopharma LLC)

16690 Collins Avenue — Penthouse Suite

Sunny Isles Beach, FL 33160

Attention: Keith Cozza

Email: ***@***

[Signature Page to Restructuring Support Agreement]

EXHIBIT A

TERM SHEET

VIVUS, Inc.

THIS PRELIMINARY TERM SHEET (THIS “RSA TERM SHEET”) SUMMARIZES TERMS AND CONDITIONS OF A PROPOSED RESTRUCTURING OF THE DEBTORS (AS DEFINED BELOW). THE TERMS SET FORTH IN THIS RSA TERM SHEET ARE BEING PROVIDED AS PART OF A COMPREHENSIVE COMPROMISE, EACH ELEMENT OF WHICH IS CONSIDERATION FOR THE OTHER ELEMENTS AND AN INTEGRAL ASPECT OF THE PROPOSED RESTRUCTURING OF THE DEBTORS. THE PROPOSED RESTRUCTURING DESCRIBED HEREIN WOULD BE IMPLEMENTED BY MEANS OF A “PREARRANGED” PLAN OF REORGANIZATION, FOR THE DEBTORS UNDER CHAPTER 11 OF THE BANKRUPTCY CODE (AS DEFINED BELOW). THIS RSA TERM SHEET IS NOT AN OFFER WITH RESPECT TO ANY SECURITIES OR SOLICITATION OF ACCEPTANCES OF A CHAPTER 11 PLAN PURSUANT TO SECTION 1125 OF THE BANKRUPTCY CODE. ANY SUCH OFFER OR SOLICITATION WILL BE MADE ONLY IN COMPLIANCE WITH ALL APPLICABLE SECURITIES LAWS AND/OR PROVISIONS OF THE BANKRUPTCY CODE. THIS DOCUMENT IS BEING PROVIDED IN FURTHERANCE OF SETTLEMENT DISCUSSIONS AND IS ENTITLED TO PROTECTION PURSUANT TO FED. R. EVID. 408 AND ANY SIMILAR RULE OF EVIDENCE. THE TRANSACTIONS DESCRIBED IN THIS RSA TERM SHEET (THE “RESTRUCTURING TRANSACTIONS”) ARE SUBJECT IN ALL RESPECTS TO, AMONG OTHER THINGS, THE RSA (AS DEFINED BELOW), ACCEPTABLE DUE DILIGENCE TO IEH’S SATISFACTION, EXECUTED DEFINITIVE DOCUMENTATION, INCLUDING THE PLAN, APPROPRIATE DISCLOSURE MATERIAL AND RELATED DOCUMENTS.

1.             Defined Terms(1)

(1)         Capitalized terms used but not defined herein shall have the meanings ascribed to them, as applicable in the RSA (as defined herein).

2.             Restructuring Terms

(2)         IEH to provide an Exit Facility Term Sheet upon receipt and review of outstanding requested diligence materials, but prior to June 30, 2020.

(3)         The DIP Facility can be upsized to refinance the Secured Notes upon entry of the Final DIP Order (defined below) at the sole discretion of the DIP Lender and DIP Agent.

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(4)   “Allowed” means with reference to any Claim or Interest, (i) any Claim or Interest arising on or before the Effective Date (a) as to which no objection to allowance has been interposed within the time period set forth in the Plan, or (b) as to which any objection has been determined by a Final Order of the Bankruptcy Court to the extent such objection is determined in favor of the respective holder, (ii) any Claim or Interest as to which the liability of the Debtors and the amount thereof are determined by a Final Order, or (iii) any Claim or Interest expressly Allowed under the Plan; provided, however, that notwithstanding the foregoing, (x)  the Allowed amount of Claims shall be subject to and shall not exceed the limitations or maximum amounts permitted by the Bankruptcy Code, including sections 502 and 503 of the Bankruptcy Code, to the extent applicable, and (y) the Reorganized Debtors will retain all claims and defenses with respect to Allowed Claims that are reinstated or otherwise unimpaired pursuant to the Plan.

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(5)   The Supporting Noteholder may determine, by no later than July 6, 2020, in its sole discretion to eliminate the bar date process and GUC Account and permit all Allowed General Unsecured Claims to be paid in the ordinary course of business; provided, that to the extent the Supporting Noteholder determines to revert to such a timeline, the Milestones (including for the avoidance of doubt, the Petition Date) shall be modified as mutually agreed by the Debtors and the Supporting Noteholder.

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6

7

8

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(6)   “Affiliate” means, when used with respect to a specified Person, a Person that, directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with such specified Person. As used in this definition, the term “control” (including with correlative meanings, “controlled by” and “under common control with”), when used with respect to any specified Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities or other interests, by contract, agreement, obligation, indenture, instrument, lease, promise, arrangement, release, warranty, commitment, undertaking or otherwise. For purposes of this definition, with respect to any Person in which IEH does not (i) beneficially own, either directly or indirectly, more than fifty percent (50%) of (x) the total combined voting power of all classes of voting securities of such Person, (y) the total combined equity interests or (z) the capital or profit interests, in the case of a partnership, or (ii) otherwise have the power to vote, either directly or indirectly, sufficient securities to elect a majority of the board of directors or similar governing body, IEH shall only be deemed to control such Person to the extent that, with respect to any particular matter, IEH or its other Affiliates, or IEH’s or such Affiliate’s employees, in their capacities as a shareholder, director, manager or general partner (or similar position) of such Person have voted or consented to take action, or encouraged others to vote or consent to take action (or take action if no vote or consent is required) with respect to such matter. “Person” means an individual, corporation, partnership, limited liability company, association, trust or other entity or organization, including any governmental authority.  For the avoidance of doubt, Affiliate shall not include the Company.

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(7)         “Released Parties” means, collectively, (i) the Debtors, (ii) the Reorganized Debtors, (iii) the Supporting Noteholder, (iv) the Convertible Notes Trustee, (v) the DIP Agent, (vi) the DIP Lender, (vii) the Exit Agent, (viii) the Exit Lender, and (ix) with respect to each of the foregoing Persons in clauses (i) through (viii), such Persons’ predecessors, successors, assigns, subsidiaries, affiliates, managed accounts and funds, and all of their respective equity holders (including shareholders), regardless of whether such interests are held directly or indirectly, current and former officers and directors, principals, members, partners, managers, employees, subcontractors, agents, advisory board members, financial advisors, attorneys, accountants, investment bankers, consultants, representatives, investment managers, investment advisors, management companies, fund advisors, and other professionals, and such Persons’ respective heirs, executors, estates, and nominees, in each case in their capacity as such.  Notwithstanding the foregoing, any Person that opts out of the releases by the Releasing Parties set forth in the Plan shall not be deemed a Released Party hereunder.

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(8)         “Final Order” means an order or judgment of a court of competent jurisdiction that has been entered on the docket maintained by the clerk of such court, which has not been reversed, vacated, or stayed and as to which (i) the time to appeal, petition for certiorari, or move for a new trial, reargument, or rehearing has expired and as to which no appeal, petition for certiorari, or other proceedings for a new trial, reargument, or rehearing shall then be pending, or (ii) if an appeal, writ of certiorari, new trial, reargument, or rehearing thereof has been sought, such order or judgment shall have been affirmed by the highest court to which such order was appealed, or certiorari shall have been denied, or a new trial, reargument, or rehearing shall have been denied or resulted in no modification of such order, and the time to take any further appeal, petition for certiorari or move for a new trial, reargument, or rehearing shall have expired; provided, however, that no order or judgment shall fail to be a “Final Order” solely because of the possibility that a motion under Rules 59 or 60 of the Federal Rules of Civil Procedure or any analogous federal or local rule of bankruptcy procedure (or any analogous rules applicable in another court of competent jurisdiction) or sections 502(j) or 1144 of the Bankruptcy Code has been or may be filed with respect to such order or judgment.

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(9)   “Exculpated Parties” means, collectively, and in each case in their capacities as such during the Chapter 11 Cases, (i) the Debtors, (ii) Supporting Noteholder, (iii) Convertible Notes Trustee, (iv) DIP Lender, (v) DIP Agent, (vi) Exit Lender, (vii) Exit Agent, and (viii) with respect to each of the foregoing Persons in clauses (i) through (viii) all of their respective predecessors, successors and permitted assigns, subsidiaries, affiliates, managed accounts or funds, and all of their respective equity holders (including shareholders), regardless of whether such interests are held directly or indirectly, current and former officers, directors, principals, stockholders, members, partners, employees, managers, subcontractors, agents, advisory board members, financial advisors, attorneys, accountants, investment bankers, consultants, representatives, investment managers, investment advisors, management companies, fund advisors, and other professionals, and such Persons’ respective heirs, executors, estates, and nominees, in each case in their capacity as such.  Notwithstanding the foregoing, any Person that opts out of the releases by the Releasing Parties set forth in the Plan shall not be deemed an Exculpated Party hereunder.

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EXHIBIT B

FORM OF JOINDER AGREEMENT FOR SUPPORTING NOTEHOLDER

This Joinder Agreement (the “Joinder Agreement”) to the Restructuring Support Agreement, dated as of May [·], 2020 (as amended, restated, amended and restated, supplemented, or otherwise modified from time to time, the “Agreement”), by and among the Company, and the holder of certain principal amounts outstanding under the Convertible Notes Indenture (together with their respective successors and permitted assigns, the “Supporting Noteholder”) is executed and delivered by            (the “Joining Party”) as of [·], 2020.  Each capitalized term used herein but not otherwise defined shall have the meaning set forth in the Agreement.

1.             Agreement to be Bound.  The Joining Party hereby agrees to be bound by all of the terms of the Agreement, a copy of which is attached to this Joinder Agreement as Annex I (as the same has been or may be hereafter amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with the provisions hereof).  The Joining Party shall hereafter be deemed to be a “Supporting Noteholder” and a “Party” for all purposes under the Agreement and with respect to any and all Claims held by such Joining Party.

2.             Representations and Warranties.  With respect to the aggregate principal amount of the Convertible Notes, set forth below its name on the signature page hereto, the Joining Party hereby makes the representations and warranties of the Supporting Noteholder set forth in Section 7 of the Agreement to each other Party to the Agreement.

3.             Governing Law.  Except to the extent that the Bankruptcy Code or other federal law is applicable or to the extent that an applicable Plan Document provides otherwise, the rights, duties, and obligations arising under the Joinder Agreement shall be governed by, and construed and enforced in accordance with, the internal laws of the State of New York, without giving effect to the principles of conflicts of laws thereof that would require the application of the law of any other jurisdiction.  Notwithstanding the foregoing, during the pendency of the Chapter 11 Cases, all proceedings contemplated by Section 11(b) of the Agreement shall be brought in the Bankruptcy Court and each of the Parties (a) irrevocably submits to the exclusive jurisdiction of the Bankruptcy Court; (b) waives any objection to laying venue in any such action or proceeding in the Bankruptcy Court; and (c) waives any objection that the Bankruptcy Court is an inconvenient forum or does not have jurisdiction over any Party to this Agreement.

[Signature Page Follows]

IN WITNESS WHEREOF, the Joining Party has caused this Joinder to be executed as of the date first written above.

SUPPORTING NOTEHOLDER

[Signature Page to Joinder Agreement]