ASSET PURCHASE AGREEMENT by and between Iroko Pharmaceuticals Inc., Egalet US Inc., and Egalet Corporation Dated as of October 30, 2018

Exhibits 2.1

EXECUTION VERSION

ASSET PURCHASE AGREEMENT

by and between

Iroko Pharmaceuticals Inc.,

Egalet US Inc.,

and

Egalet Corporation

Dated as of October 30, 2018

TABLE OF CONTENTS

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EXHIBITS

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ASSET PURCHASE AGREEMENT

THIS ASSET PURCHASE AGREEMENT (this “Agreement”) is entered into as of October 30, 2018, by and between Iroko Pharmaceuticals Inc., a business company incorporated in the British Virgin Islands (registered number 1732699) (the “Company”) and Egalet US Inc., a Delaware corporation (“NewCo”), and Egalet Corporation, a Delaware corporation (“Buyer Parent” and, collectively with NewCo, the “Buyer”).

RECITALS

WHEREAS, the Company and its Subsidiaries desire to sell, transfer and assign to the Buyer, and the Buyer desires to purchase from the Company and its Subsidiaries, substantially all of the assets and rights of the Company and its Subsidiaries, other than the Excluded Assets, upon the terms and subject to the conditions set forth in this Agreement (the “Acquisition”);

WHEREAS, Buyer Parent has previously issued its outstanding (i) 13% Senior Secured Notes (the “13% Notes”), (ii) 6.50% Convertible Senior Notes due 2024 (the “6.50% Notes”) and (iii) 5.50% Convertible Senior Notes due 2020 (the “5.50% Notes”);

WHEREAS, prior to or substantially concurrently with the consummation of the Acquisition, through and pursuant to the Plan, Buyer Parent intends to (i) redeem, repay or otherwise retire or discharge at least $20,000,000 of aggregate principal amount of the outstanding 13% Notes (the “13% Notes Redemption”) and (ii) convert all of the outstanding 6.50% Notes and 5.50% Notes into shares of Parent Common Stock (the “Convertible Note Conversions”);

WHEREAS, the parties hereto intend to effectuate the Acquisition pursuant to the Plan to be filed with the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”) in cases (the “Chapter 11 Cases”) to be commenced for the Buyer and certain of its Affiliates (each a “Debtor,” and collectively, the “Debtors”) under chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”);

WHEREAS, the Debtors intend to seek entry of the Confirmation Order in form and substance materially consistent with the Plan and the terms of this Agreement;

WHEREAS, substantially concurrently with the execution and delivery of this Agreement, Iroko Pharmaceuticals, LLC, a Delaware limited liability company, and Iroko Properties Inc., a British Virgin Islands company (both wholly-owned Subsidiaries of the Company), have entered into an Amended and Restated Nano-Reformulated Compound License Agreement with iCeutica Inc., a Delaware corporation, and iCeutica Pty Ltd., an Australian corporation, attached hereto as Exhibit N (the “iCeutica License”), which license shall be effective upon, and assigned to the Buyer (or its designated Affiliate) at, the Closing;

WHEREAS, substantially concurrently with the execution and delivery of this Agreement, and as a condition and inducement to the Buyer’s willingness to enter into this Agreement, (i) the Buyer and Athilio Pharma, LLC, a Delaware limited liability company, are executing and delivering a Master Services Agreement and (ii) the Buyer and 42 North, LLC, a Delaware limited liability company, are executing and delivering a Master Services Agreement,

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the effectiveness of each of which is contingent upon the consummation of the transactions contemplated hereby; and

WHEREAS, the Boards of Directors of the Buyer and Buyer Parent have approved this Agreement, the Ancillary Agreements and the transactions contemplated hereby and thereby including, without limitation, the Acquisition, the 13% Notes Redemption and the Convertible Note Conversions.

AGREEMENT

NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth below, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Buyer and the Company agree as follows:

ARTICLE I
PURCHASE AND SALE OF THE TRANSFERRED ASSETS

1.1                               Purchase and Sale of Assets.  Upon the terms and subject to the conditions set forth in this Agreement, at the Closing, the Company shall, and shall cause its Subsidiaries to, sell, convey, transfer, assign and deliver to the Buyer (directly or through a designated Affiliate), and the Buyer (directly or through a designated Affiliate) shall purchase, acquire and accept from the Company and its Subsidiaries, all of the Company’s and its Subsidiaries’ right, title and interest in and to the Transferred Assets, free and clear of any Liens (other than Permitted Liens, it being understood that any such Permitted Liens shall be Excluded Liabilities).  For purposes of this Agreement, the term “Transferred Assets” means all of the properties, assets, claims, causes of action, contracts, rights, interests, privileges, expectations and business of every kind, character and description, whether real, personal or mixed, tangible or intangible, whether accrued, contingent or otherwise, of the Company and its Subsidiaries, whether held by the Company, its Subsidiaries or any other Person on its or their behalf, and wherever located, in each case, other than the Excluded Assets, and including, without limitation all of the Company’s and its Subsidiaries’ right, title and interest in and to the following (other than the Excluded Assets):

(a)                                 all regulatory filings, marketing authorizations, NDAs, master files, permits, licenses, registrations, regulatory clearances, approvals, concessions, qualifications, registrations, certifications and similar items (“Regulatory Authorizations”), including those related to market, pricing or reimbursement approval (the “Transferred Regulatory Authorizations”), including but not limited to the Transferred Regulatory Authorizations set forth on Schedule 1.1(a);

(b)                                 all regulatory, scientific and technical documents that the personnel of the Company or its Subsidiaries responsible for regulatory compliance and the management of the Company’s or its Subsidiaries’ product operations maintain in the ordinary course of business with respect to applications for the Transferred Regulatory Authorizations and any renewals thereof and the manufacture, distribution and sale of the Products and the Naproxen Product,

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including the list of the components of the Products and the Naproxen Product and the specifications therefor and quantities thereof;

(c)                                  all domain names controlled by the Company or its Subsidiaries (the “Transferred Domain Names”), including but not limited to the Transferred Domain Names set forth on Schedule 1.1(c), but excluding the domain names set forth on Schedule 1.2(l));

(d)                                 all trademarks, logos, brands, trade names and other source identifiers (“Trademarks”) owned by or used under license by the Company or its Subsidiaries, and all applications and registrations of the foregoing (the “Transferred Trademarks”), including but not limited to the Transferred Trademarks set forth on Schedule 1.1(d), but excluding the trademarks set forth on Schedule 1.2(l);

(e)                                  all issued and pending patents and patent applications (collectively, “Patents”) owned by or used under license by, the Company or its Subsidiaries, and including any provisional, continuation, divisional, continuation in part application, substitution, reissue, renewal, reexamination, supplemental protection certificate, extension, registration and confirmation of any such patents and patent applications (collectively, the “Transferred Patents”), including but not limited to the Transferred Patents set forth on Schedule 1.1(e), and all patent files, correspondence, opinions, studies, search results and documentation related to any of the foregoing;

(f)                                   all correspondence and reports submitted to or received from the FDA (including minutes and official contact reports relating to any communications with the FDA) and relevant supporting documents with respect thereto, including the product labeling, all medical letters, regulatory drug lists and complaint files, dossiers, reports, data and other written materials filed as a part of any applications for approvals or registrations relating to the Products and the Naproxen Product;

(g)                                  any and all information, books, records, documents, ideas, inventions, copyrights, data (including historical government pricing data), files, correspondence, plans, operating records, instructions, processes, formulas, formulation information, manufacturing technology, validations, package specifications, chemical specifications, chemical and finished goods analytical test methods, manufacturing records, sampling records, standard operating procedures, batch records, laboratory notebooks, stability data, product specifications, information with respect to expert opinion, drawings, formulae, reports and information (whether or not patented or patentable), technology, techniques, trade secrets, concepts, ideas, inventions, specifications, surveys, designs, engineering and other manuals, flow diagrams, chemical, pharmacological, toxicological, pharmaceutical, physical, analytical, safety, quality assurance, and quality control data, technical information, other confidential or proprietary information, systems or procedures, clinical, non-clinical, safety and Adverse Event report data and databases, and know-how relating to Transferred Regulatory Authorizations, Transferred Domain Names, Transferred Trademarks and Transferred Patents (collectively, the “Transferred Other IP”);

(h)                                 duplicate copies of personnel files of the Transferred Employees and other Employees who prior to Closing accept the Buyer’s offer of a consulting relationship pursuant to Section 4.15;

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(i)                                     all marketing and sales assets, including, without limitation, all customer and supplier lists, cost and pricing information, sales training materials and prescriber lists, as well as the websites and content at the Transferred Domain Names;

(j)                                    all rights under the contracts set forth on Schedule 1.1(j) and any other contracts approved in writing by the Buyer in accordance with Section 4.10(b)(1)(C) (the “Assumed Contracts”);

(k)                                 the tangible assets set forth on Schedule 1.1(k) and any other tangible assets primarily related to the Business;

(l)                                     the Transferred Inventory;

(m)                             all guaranties, warranties, indemnities and similar rights that have been made in favor of the Company, its Subsidiaries and any predecessors in title by any manufacturers, suppliers and other third parties, except to the extent relating to any Excluded Liabilities;

(n)                                 all files, correspondence and other documents relating to the Pending Actions;

(o)                                 all claims, counterclaims, defenses, causes of action, demands, judgments, rights of recovery, rights of set-off, rights of subrogation and all other rights of any kind against any third party related to the Business, except to the extent relating to any Excluded Liabilities;

(p)                                 all credits, prepaid expenses, deferred charges, advance payments, security deposits and prepaid items, except those that relate to any Excluded Liabilities;

(q)                                 all goodwill associated with the Business or the Transferred Assets; and

(r)                                    all other assets, rights and properties that are primarily related to the Business (other than Excluded Assets and any assets to the extent relating to Excluded Liabilities).

1.2                               Excluded Assets.  Notwithstanding anything to the contrary in this Agreement, the Transferred Assets shall not include any of the Excluded Assets.  For purposes of this Agreement, the term “Excluded Assets” means the following assets, rights and properties of the Company and its Subsidiaries:

(a)                                 all cash and cash equivalents, bank accounts and shares or securities of or in the Company and its Subsidiaries (including any and all issued and outstanding shares in each of the Subsidiaries);

(b)                                 all accounts receivable;

(c)                                  any Finished Product not included in the Transferred Inventory;

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(d)                                 any of the Company’s and its Subsidiaries’ inventory other than the Transferred Inventory;

(e)                                  all Regulatory Authorizations exclusively relating to Development Products, along with all exclusively related regulatory, scientific and technical documents and all exclusively related correspondence and reports;

(f)                                   all employee-related files or records (other than duplicate copies of personnel files of the Transferred Employees or other Employees who prior to the Closing accept the Buyer’s offer of a consulting relationship pursuant to Section 4.15), all Company Benefit Plans and all contracts and assets relating to any Company Benefit Plan;

(g)                                  any right to any refund, rebate, abatement, credit or similar Tax benefits with respect to Taxes relating to any Tax period (or portions thereof) ending on or before the Closing Date and all Tax records of the Company and its Subsidiaries (including any Tax Returns of the Company, any Subsidiary or any Affiliate of the Company);

(h)                                 all rights in respect of real property, including leasehold interests;

(i)                                     all rights under any contracts not listed on Schedule 1.1(j) (collectively, the “Excluded Contracts”);

(j)                                    any books, records, files and rights to the extent primarily relating to any Excluded Assets or Excluded Liabilities;

(k)                                 all rights under the state-level licenses and authorizations set forth on Schedule 1.2(k);

(l)                                     all Intellectual Property other than the Transferred Intellectual Property (including, for the avoidance of doubt, the patents, domain names and trademarks set forth on Schedule 1.2(l));

(m)                             all insurance policies of the Company and all rights to applicable claims and proceeds thereunder; and

(n)                                 all rights under this Agreement and the Ancillary Agreements.

1.3                               Assumption of Liabilities.  Upon the terms and subject to the conditions set forth in this Agreement, except as set forth below, at the Closing, the Buyer shall assume and agree to perform, pay, satisfy or discharge when due, the Assumed Liabilities.  For purposes of this Agreement, the term “Assumed Liabilities” means, without duplication, all liabilities and obligations of the Company and its Subsidiaries:

(a)                                 arising from the manufacture, delivery or sale of any Finished Product, where such activities are performed on or after the Closing Date (including liabilities related to rebates, chargebacks, recall, withdrawal, post-sale warnings, wholesaler fees, copay buydowns, product returns, copay discounts or otherwise for Product sold on or after the Closing Date), (it being understood that any and all liabilities arising from the manufacture, delivery or sale of any

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Finished Product where such activities are performed prior to the Closing Date shall be Excluded Liabilities such that, as an example, in the case of any Finished Product that is transferred to the Buyer at the Closing, liabilities arising from the manufacture of such Finished Product prior to the Closing Date shall be Excluded Liabilities and liabilities arising from the delivery or sale of any such Finished Product on or after the Closing Date shall be Assumed Liabilities);

(b)                                 arising out of user or other similar fees payable to FDA or other Governmental Entity to the extent such fees are payable or obligated to be paid on account of the operation of the Business on or after the Closing Date, subject to Section 4.24 to the extent the Company or any of its Subsidiaries paid any such fees prior to Closing Date;

(c)                                  under the Assumed Contracts relating to periods from and after the Closing, excluding any liabilities and obligations resulting from (i) any material breach or violation of any Assumed Contract occurring prior to the Closing or (ii) any act or omission occurring prior to the Closing that would have constituted a breach or violation upon notice or passage of time (or both) under any Assumed Contract; and

(d)                                 referenced on Schedule 1.3(d).

1.4                               Excluded Liabilities.  Notwithstanding anything to the contrary in this Agreement, the Assumed Liabilities shall not include any of the Excluded Liabilities, and the Buyer does not hereby and shall not assume or in any way undertake to perform, pay, satisfy or discharge, and the Company or its Subsidiaries (as applicable) shall fully retain and be responsible for, any Excluded Liabilities.  For purposes of this Agreement, the term “Excluded Liabilities” means all liabilities and obligations other than those specifically listed or described in the definition of Assumed Liabilities, including, but not limited to (in each case excluding those liabilities and obligations specifically listed or described in the definition of Assumed Liabilities), (i) any liabilities of the Company or its Subsidiaries which arise out of facts, circumstances, occurrences, conditions, acts or omissions occurring on or prior to Closing, (ii) any Taxes of the Company, its Subsidiaries or any of their respective Affiliates and any Tax related to the Transferred Assets, in each case for any Tax periods (or portions thereof) ending on or prior to the Closing Date, (iii) any liabilities arising from the manufacture, delivery or sale of any Finished Product where such activities were performed prior to the Closing Date (including liabilities related to rebates, chargebacks, recall, withdrawal, post-sale warnings, wholesaler fees, copay buydowns, product returns, copay discounts or otherwise arising from Product sold prior to the Closing Date), (iv) any royalty or milestone obligations of the Company or its Subsidiaries accruing on or prior to the Closing, (v) any environmental liabilities of the Company or its Subsidiaries, (vi) any liabilities under or related to any Company Benefit Plan (or any contract or assets relating thereto), (vii) any liabilities with respect to employment, termination of employment, compensation, severance, vacation, sick leave and employee benefits of any nature owed to any current or former officer, manager, director, member, employee or independent contractor (or any of their respective dependents or beneficiaries) of the Company, its Subsidiaries or any of their respective Affiliates (including, without limitation, any Employee) that relate to such individual’s employment or service (or the termination thereof) with the Company, its Subsidiaries or any of their respective Affiliates or any of their respective predecessors, whether or not such current or former officer, manager, director, member, employee or independent contractor of the Company, its Subsidiaries or any of their respective

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Affiliates becomes an employee of or other service provider to Buyer or any of its Affiliates, including, without limitation, any obligation to pay or provide any current or former officer, manager, director, member, employee or independent contractor (or any of their respective dependents or beneficiaries) of the Company, its Subsidiaries or any of their respective Affiliates, any severance or change in control payments, transaction bonuses, retiree benefits, salary, wages or commissions (including accrued vacation or paid time off), or statutory entitlements (including under the WARN Act), (viii) any liabilities to the extent relating to any Excluded Assets including, without limitation, the Excluded Contracts, (ix) any liabilities of the Company or its Subsidiaries related to any real property (whether leased or owned), (x) any regulatory fees or other similar fees due and payable to the FDA or any other Governmental Entity prior to the Closing, subject to the provisions of Section 4.24, (xi) any Transfer Taxes payable by the Company or its Subsidiaries in accordance with Section 1.9, (xii) any liabilities arising under the iCeutica Promissory Notes, (xiii) any liabilities arising from, relating to or resulting from the Company Redemption (including any related dissent or appraisal process) and (xiv) any liabilities arising from, relating to or resulting from the China License and Supply Agreement (it being understood that nothing herein shall preclude any Company Indemnified Party from making a claim against the Buyer under Section 6.2(b) for a breach of Section 4.29).

1.5                               Purchase Price; Royalty.

(a)                                 Purchase Price. In consideration of the Acquisition, the Buyer (directly or through a designated Affiliate) agrees to purchase, acquire and accept from the Company and its Subsidiaries the Transferred Assets, and to assume the Assumed Liabilities, for the Equity Consideration, the Notes Consideration and the Royalty Consideration, as may be adjusted pursuant to Article VI.

(b)                                 Closing Payments. At the Closing, the Buyer Parent shall (directly or, with respect to the Equity Consideration only, through a designated Affiliate) pay, issue or otherwise deliver to the Company or its Permitted Designees: (i) the Equity Consideration, (ii) the Notes Consideration and (iii) the Interim Payments Note Consideration (collectively, the “Closing Consideration”).

(c)                                  Royalty Consideration.

(1)                                 Royalty Payments. In addition to the payments and other deliveries pursuant to Section 1.5(c), following the Closing and during the Royalty Term, the Buyer shall, subject to the terms and conditions of this Section 1.5(c), pay or cause the payment to the Royalty Recipient additional payments as follows (the “Royalty Payments”): (x) with respect to Indocin Net Sales in excess of $20,000,000 following the Closing and during the fiscal year ending December 31, 2019, 15% of such excess Indocin Net Sales and (y) with respect to Indocin Net Sales in excess of $20,000,000 during any fiscal year ending after January 1, 2020, twenty percent (20%) of such excess Indocin Net Sales; provided, however, that if the Royalty Term begins after January 1, 2019, the $20,000,000 amount in clause (x) above shall be reduced and prorated by multiplying such amount by a fraction where (i) the numerator is the number of days between the start of the Royalty Term and December 31, 2019, and (ii) the denominator is 365; and

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provided further, that in the final fiscal year of the Royalty Term, the $20,000,000 amount in clause (y) above shall be reduced and prorated by multiplying such amount by a fraction where (i) the numerator is the number of days between the start of such final fiscal year and the end of the Royalty Term, and (ii) the denominator is 365.

(2)                                 Royalty Statements. Within forty-five (45) days after the end of each fiscal quarter (or ninety (90) days with respect to the fourth quarter of each fiscal year) during the Royalty Term beginning with the fiscal quarter ending March 31, 2019, the Buyer shall deliver to the Royalty Recipient a report setting forth for such fiscal quarter (or such fiscal year with respect to the fourth quarter of such fiscal year) the following information: (a) the aggregate amount of Indocin Net Sales and (b) the Royalty Payments due pursuant to Section 1.5(c)(1) for such sales (each, a “Royalty Statement”).  For the avoidance of doubt, no such reports shall be due in respect of any fiscal quarter occurring after the expiration of the Royalty Term.

(3)                                 Determination of Royalty Payments. Unless the Royalty Recipient disputes the Buyer’s calculations included in the Royalty Statement in accordance with the provisions of Section 1.5(c)(6) within forty-five (45) days after delivery by the Buyer of such Royalty Statement (the “Royalty Dispute Period”), the Buyer’s determinations thereof shall be conclusive and binding upon the Royalty Recipient and the Buyer, subject to the Royalty Recipient’s subsequent right to dispute such calculations pursuant to Section 1.5(c)(5) and subject also to the provisions of Section 1.5(c)(7).  Each Royalty Payment, if any, will, be paid in cash by Buyer or its Affiliates within ten (10) days after the delivery by the Buyer of the corresponding Royalty Statement.  In the event of a dispute concerning amounts owed by the Buyer with respect to such Royalty Statement, pursuant to Section 1.5(c)(5) or Section 1.5(c)(6), any additional amounts determined to be due by the Buyer or its Affiliates shall be paid in cash by Buyer or its Affiliates within ten (10) days after the date of the final determination thereof pursuant to Section 1.5(c)(5), Section 1.5(c)(6), and/or Section 1.5(c)(7).  Any payments payable by the Buyer or its Affiliates under this Section 1.5(c) shall be deemed part of the Final Purchase Price.  It is understood and agreed that, to the extent that at any time there are pending claims made by Buyer Indemnified Parties for indemnification pursuant to and in accordance with Article VI, the Buyer and its Affiliates may hold back from paying a portion of any Royalty Payment in an amount equal to the amount at issue in such pending claims until the final resolution of such claim in accordance with this Agreement.  In addition, subject to the terms of Article VI, the Buyer and its Affiliates may recoup and/or set-off against all or a portion of any Royalty Payment any Agreed Amount or any amount finally determined (by a court of competent jurisdiction through a non-appealable order) to be owed to the Buyer Indemnified Parties under the indemnification obligations set forth in Article VI, provided, that the Buyer must notify the Royalty Recipient of its intent to set-off the amount of any Royalty Payment as promptly as possible after making such a determination, but in any event not less than five (5) Business Days in advance of such set-off.

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(4)                                 Payment of Royalty Payments. After giving effect to any set-off in accordance with Section 1.5(c)(3), the Buyer (or one of its Affiliates) shall pay the Royalty Payment by wire transfer of immediately available funds to an account or accounts designated in writing by the Royalty Recipient at least three (3) Business Days prior to the date of such payment.

(5)                                 Audit of Royalty Payments. During the Royalty Term and for a period of one (1) year thereafter, no more than once in any twelve (12)-month period, the Royalty Recipient shall have the right to have an independent certified public accountant of nationally recognized standing reasonably acceptable to the Buyer inspect and audit the Buyer’s records for the purpose of verifying the accuracy of any Royalty Payments that were not the subject of a dispute pursuant to Section 1.5(c)(6) or a prior audit pursuant to this Section 1.5(c)(5).  The accountant shall keep confidential from third parties (other than the Royalty Recipient and its Representatives) any information obtained during such inspection and shall only report its calculation of the amounts of Indocin Net Sales and Royalty Payments corresponding to the time period under review.  If the Royalty Recipient wishes to dispute the amount of Royalty Payments due hereunder for any particular time period, the Royalty Recipient shall prepare and deliver to the Buyer a report setting forth the accountant’s calculation of the Indocin Net Sales and the corresponding Royalty Payments in respect of such time period (the “Royalty Audit Statement”).

(A)                               Unless the Buyer disputes the calculations set forth in the Royalty Audit Statement within forty-five (45) days following receipt of the Royalty Audit Statement, the findings set forth in the Royalty Audit Statement shall be conclusive and binding upon the Buyer and the Royalty Recipient.  In such case, if the Royalty Audit Statement indicates that additional amounts are owed by the Buyer or its Affiliates to the Royalty Recipient in respect of the relevant period under audit, the Buyer or its Affiliates shall pay the Royalty Recipient such additional amounts within sixty (60) days after delivery by the Royalty Recipient of the Royalty Audit Statement.  The professional fees charged by the accountant in connection with any such audit shall be borne by the Royalty Recipient unless the Royalty Audit Statement indicates there was an underpayment by the Buyer or its Affiliates for such period of more than the greater of (1) five (5) percent (5%) of the aggregate amount payable for the term of the audit, and (2) $50,000, in which case the Buyer shall pay the fees and expenses of the Royalty Recipient’s accountant within fifteen (15) days of the Royalty Recipient’s request therefor.

(B)                               In the event that the Buyer disputes the calculations set forth in any Royalty Audit Statement, the Buyer shall notify the Royalty Recipient in writing by delivery of a notice (an “Audit Dispute Notice”) within the forty-five (45) day period set forth in clause (A) above (the “Audit Dispute Period”), which Audit Dispute Notice shall set forth in reasonable detail the basis for such dispute, and the parties shall follow the

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dispute resolution procedures set forth in Section 1.5(c)(6), mutatis mutandis (it being understood that the Audit Dispute Period shall serve as the Royalty Dispute Period, the Royalty Audit Statement shall serve as the Royalty Statement, and the Audit Dispute Notice shall serve as the Royalty Dispute Notice).

(6)                                 Disputes. In the event that the Company disputes the Buyer’s calculations included in any Royalty Statement, the Royalty Recipient shall notify the Buyer in writing by delivery of a notice (a “Royalty Dispute Notice”) within the Royalty Dispute Period, which Royalty Dispute Notice shall set forth in reasonable detail the basis for such dispute.  If the Royalty Recipient does not submit a Royalty Dispute Notice within the Royalty Dispute Period, then the calculations included in the applicable Royalty Statement shall become final and binding upon the parties and shall not be subject to further review, challenge or adjustment (other than pursuant to Section 1.5(c)(7)).  If the Buyer and the Royalty Recipient cannot mutually agree upon the calculations of the Indocin Net Sales within thirty (30) days after delivery of the Royalty Dispute Notice, the Royalty Recipient and the Buyer shall jointly engage a nationally recognized firm of independent certified public accountants selected by mutual agreement of the Company and the Buyer (the “Settlement Accountants”) to resolve such dispute.  The parties shall furnish the Settlement Accountants, at the time of such engagement, with a copy of the Royalty Dispute Notice (if any) and the Royalty Statement.  Each of the Royalty Recipient and the Buyer shall (i) furnish the Settlement Accountants with such other information and documents as the Settlement Accountants may reasonably request in order to resolve the dispute; and (ii) within ten (10) days of the date of joint engagement of the Settlement Accountants, provide the Settlement Accountants with a written notice (a “Royalty Position Statement”) describing in reasonable detail its position on the dispute (a copy of which will concurrently be delivered to the other party).  Each party shall, within ten (10) days following the submission of the other party’s Royalty Position Statement to the Settlement Accountants, have the opportunity and right to submit to the Settlement Accountants a written response to the other party’s Royalty Position Statement. Any information submitted to the Settlement Accountants by either party shall be in writing, with a copy sent concurrently to the other party. If either of the Royalty Recipient or the Buyer fails to timely deliver its Royalty Position Statement to the Settlement Accountants, the Settlement Accountants shall resolve the items in dispute solely upon the basis of the information otherwise timely provided to them.  The Settlement Accountants (A) shall be bound by all other matters and calculations as to which the parties are in accord, (B) shall not assign a value to any disputed matter greater than the greatest value for such matter claimed by either party or less than the smallest value claimed for such matter by either party, and (C) shall rely on the written submissions of the parties (and shall not conduct an independent investigation, discovery or ex parte communications).  The determination of the Settlement Accountants with respect to the Royalty Payment shall be in writing and shall be final and binding upon the parties and shall not be subject to further review, challenge or adjustment (other than pursuant to Section 1.5(c)(7)).  The parties

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shall instruct the Settlement Accountants to reach a determination not more than forty-five (45) days after the date of the joint engagement; provided, however, that any delay in delivering such determination shall not invalidate such determination or deprive the Settlement Accountants of jurisdiction to resolve the items in dispute.  Each of the Buyer and the Royalty Recipient shall pay its own costs and expenses incurred in connection with this Section 1.5(c)(6).  The fees, costs and expenses of the services of the Settlement Accountants shall be initially borne by the Royalty Recipient, on the one hand, and the Buyer, on the other hand, fifty percent (50%) by the Royalty Recipient and fifty percent (50%) by the Buyer, provided that the fees, costs and expenses of the Settlement Accountants shall ultimately be borne by the Royalty Recipient and the Buyer based upon the percentage which the aggregate portion of the contested amount (based on the last proposed written offers from each such party for the settlement of the items in dispute, taken as a whole) not awarded to each party bears to the aggregate amount actually contested by the parties.

(7)                                 Year-End Adjustments. If there is any change to the amount of previously determined Indocin Net Sales for any fiscal quarter during any fiscal year as a result of the audit or any restatement of Buyer Parent’s consolidated financial statements for such fiscal year, the amount of such change shall be reported in the Royalty Statement for the fourth quarter of such fiscal year, and the Royalty Payment for such fourth quarter shall be increased or decreased, as applicable, by a corresponding amount determined, in each case, in accordance with this Section 1.5(c).  For the avoidance of doubt, any such adjustments included in a Royalty Statement for the fourth quarter of a fiscal year shall be subject to Section 1.5(c)(5) and Section 1.5(c)(6).

(8)                                 Conduct of Business. During the Royalty Term, the Buyer shall, and shall cause the other Buyer Entities to, use Diligent Efforts to commercialize the Transferred Indocin Product (it being agreed that awareness that taking an action may reduce (or make less likely) Royalty Payments shall not, itself, be sufficient by itself to evidence the Buyer Entities’ objective in taking such action).  Without limiting the Buyer’s obligations under this Section 1.5, the Royalty Recipient hereby acknowledges that any Royalty Payments are uncertain and it is therefore not assured that the Buyer will be required to pay (or cause to be paid) any Royalty Payments hereunder.

1.6                               Closing.

(a)                                 Subject to the terms and conditions of this Agreement, the closing of the transactions contemplated hereby (the “Closing”) shall take place at the offices of Dechert LLP, Three Bryant Park, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ at 10:00 A.M., New York City time, or at such other place and time (including by electronic exchange of documents) as the Buyer and the Company mutually agree in writing, in each case, on the date that is no later than three (3) Business Days after the satisfaction or waiver of the conditions precedent to Closing specified in Article V (other than those conditions that by their nature are to be satisfied by actions taken at the Closing, but subject to the satisfaction or waiver of such

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conditions at the Closing), or at such other time, place and date as the Buyer and the Company mutually agree in writing (the “Closing Date”).  The parties hereto acknowledge and agree that the Closing Date shall occur on the same date as the effective date of the Plan, subject to the provisions of this Section 1.6 and Article V.

(b)                                 At the Closing, the Buyer shall:

(i)                  cause to be issued or transferred, as applicable, to the Company or its Permitted Designee(s) the Equity Consideration and the Notes Consideration;

(ii)               deliver to the Company the following documents duly executed by the Buyer and the Affiliates of the Buyer party thereto:

(1)                                 a ▇▇▇▇ of Sale in substantially the form attached hereto as Exhibit A (the “▇▇▇▇ of Sale”);

(2)                                 (a) one or more Trademark Assignments in substantially the form attached hereto as Exhibit B-1 (the “Trademark Assignment”) and (b) a Trademark Assignment relating to the Indocin US trademark in substantially the form attached hereto as Exhibit B-2 (the “Indocin US Trademark Assignment”);

(3)                                 a Transition Services Agreement in substantially the form attached hereto as Exhibit C (the “Transition Services Agreement”);

(4)                                 an Assignment and Assumption Agreement in substantially the form attached hereto as Exhibit D (the “Assignment and Assumption Agreement”);

(5)                                 a copy of (i) the New Senior Secured Notes Indenture and (ii) the New Notes Royalty Agreement;

(6)                                 the Interim Payments Note;

(7)                                 a certificate, in the form required under Treasury Regulation Section 1.897-2(h) and 1.1445-2(C) and reasonably satisfactory to the Company, and a notice in accordance with provisions of Treasury Regulation Section 1.897-2(h)(2), each duly executed by Buyer Parent and in form reasonably satisfactory the Company (the “Buyer FIRPTA Certificate”);

(8)                                 a Stockholders Agreement in substantially the form attached hereto as Exhibit E (the “Stockholders Agreement”);

(9)                                 a Registration Rights Agreement in substantially the form attached hereto as Exhibit F (the “Registration Rights Agreement”);

(10)                          the officer’s certificate contemplated by Section 5.3(a) and (b), dated as of the Closing Date;

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(11)                          letters from the Buyer to the FDA assuming responsibility for the applicable Transferred Regulatory Authorizations issued by the FDA, in the respective forms attached hereto as Exhibit G-1 (the “Buyer FDA Letters”); and

(12)                          a certified true, correct and complete copy of the Confirmation Order; and

(iii)            deliver to the Company notice of the effective date of the Plan.

(c)                                  At the Closing, the Company shall:

(i)                  deliver to the Buyer the following documents duly executed by the Company and the Affiliates of the Company party thereto:

(1)                                 the ▇▇▇▇ of Sale;

(2)                                 the Trademark Assignment;

(3)                                 the Indocin US Trademark Assignment;

(4)                                 the Transition Services Agreement;

(5)                                 the Assignment and Assumption Agreement;

(6)                                 the Stockholders Agreement (provided, that if any Equity Consideration is to be issued or delivered at the Closing to any Permitted Designee, the Company shall also cause such Permitted Designee to duly execute and deliver to the Buyer at the Closing, the Stockholders Agreement);

(7)                                 the Registration Rights Agreement;

(8)                                 letters from the Company to the FDA transferring to the Buyer the rights to the applicable Transferred Regulatory Authorizations issued by the FDA, in the respective forms attached hereto as Exhibit G-2 (the “Company FDA Letters” and, together with the ▇▇▇▇ of Sale, the Trademark Assignment, the Indocin US Trademark Assignment, the Transition Services Agreement, the Assignment and Assumption Agreement, the New Senior Secured Notes Indenture, the New Notes Royalty Agreement, the Interim Payments Note, the Buyer FIRPTA Certificate, the Company FIRPTA Certificate, the Stockholders Agreement, the Registration Rights Agreement and the Buyer FDA Letters, the “Ancillary Agreements”);

(9)                                 with respect to the Company and any Subsidiary of the Company that transfers to the Buyer hereunder a “United States real property interest” within the meaning of Section 897(c) of the Code, a properly executed certificate of non-foreign status in a form that complies with Treasury Regulation Section 1.1445-2(b)(2) and in form reasonably satisfactory to the Buyer (the “Company FIRPTA Certificate”);

(10)                          the officer’s certificates contemplated by Section 5.2(a) and (b), dated as of the Closing Date; and

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(ii)               deliver to the Buyer (1) all of the Transferred Assets of a tangible nature (including instruments of transfer and conveyance and taking such actions as may be required by applicable Law to effect such transfer and control) and (2) copies of the Company Required Consents; and

(iii)            deliver to the Buyer the irrevocable assignment of the iCeutica License from the Company to the Buyer (or a designated Affiliate) duly executed and delivered by the Company and the other parties to the iCeutica License, in a form reasonably satisfactory to the Buyer.

1.7                               Plan of Reorganization. The Acquisition shall be effected as a principal component of the Plan.

1.8                               Transfer Taxes.  The Company, on the one hand, and the Buyer, on the other hand, shall equally bear any Transfer Taxes, fees or charges incurred in connection with the purchase and sale of the Transferred Assets and the payment of the Final Purchase Price therefor pursuant to this Agreement and not eliminated through the application of section 1146(a) of the Bankruptcy Code, and shall timely file all Tax Returns and other documentation with respect to such Transfer Taxes.  All such Tax Returns related to Transfer Taxes shall be filed by the party required to file under applicable Law, and the non-filing party shall reimburse the filing party for its portion of any such Transfer Taxes.  The Company and the Buyer shall cooperate in taking all actions and in the preparation and filing of all forms and documentation necessary to mitigate or provide exemption from any Transfer Tax, to the extent permitted by applicable Law, including under section 1146(a) of the Bankruptcy Code.

1.9                               Allocation of Purchase Price. On or prior to the forty-fifth (45th) day after the Closing Date, the Company shall deliver a schedule allocating the Final Purchase Price, the amount of the Assumed Liabilities (to the extent relevant in determining the purchase price for Tax purposes) and other relevant items (the “Total Tax Consideration”) among the Transferred Assets (the “Allocation Schedule”) in accordance with Section 1060 of the Code (and any similar provisions of state or local Law, as appropriate) and the schedule prepared by the Company in accordance with Section 4.2(a)(x). The Allocation Schedule shall be deemed final unless the Buyer notifies the Company in writing that the Buyer objects to one or more items reflected in the Allocation Schedule as unreasonable within fifteen (15) days after delivery of the Allocation Schedule to the Buyer. The Parties shall negotiate in good faith to resolve any such dispute, and the Allocation Schedule shall be updated to reflect any such resolution. If the Company and the Buyer are unable to resolve a dispute with respect to the Allocation Schedule within thirty (30) days of Buyer making such objection, and the subject of  such unresolved dispute is the aggregate amount of the Total Tax Consideration, the Buyer shall be permitted to create a separate schedule allocating the Total Tax Consideration among the Transferred Assets utilizing its proposed amount of Total Tax Consideration in a manner that is otherwise substantially consistent with the Allocation Schedule and in accordance with the schedule prepared by the Company in accordance with Section 4.2(a)(x), shall promptly send a copy of such separate schedule to the Company and shall be permitted to report the Tax consequences of the transactions contemplated by this Agreement in a manner consistent with such separate schedule.  Except as required by applicable Law or otherwise permitted pursuant to this Section 1.9, the Company and the Buyer shall report the Tax consequences of the transactions contemplated by

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this Agreement in a manner consistent with the Allocation Schedule and shall not take any position inconsistent therewith in preparing any Tax Returns, IRS Form 8594 or any other Tax forms or filings.

1.10                        Withholding. The Buyer, the Company or any of their respective Affiliates, shall be entitled to deduct and withhold from any payment under this Agreement any Taxes required to be deducted and withheld by the Buyer, the Company or such Affiliate under applicable Law relating to Taxes, and the Buyer, the Company or such Affiliate shall pay such amounts to the appropriate Taxing Authority, provided, that the Buyer or the Company, as the case may be, shall notify the other party of its intent to so withhold at least five (5) Business Days in advance of such withholding or as promptly as possible after such determination, provided, further, that the parties shall use their respective reasonable best efforts to determine a withholding obligation at least five (5) Business Days prior to making any such withholding. Notwithstanding the foregoing, if (i) the Buyer designates an Affiliate that is not organized in the United States to purchase, acquire, and accept any or all of the Transferred Assets, or to assume any or all of the Assumed Liabilities, or to pay, issue, or otherwise deliver any or all of the Equity Consideration, the Notes Consideration, the Royalty Consideration, the Interim Payments Note Consideration or the amounts required in accordance with Section 4.26, and (ii) any payment under this Agreement becomes subject to a deduction or withholding requirement that would otherwise not apply had the Buyer itself directly purchased, acquired, and accepted all of the Transferred Assets, assumed all of the Assumed Liabilities, and paid, issued, and otherwise delivered all of the Equity Consideration, the Notes Consideration, the Royalty Consideration, the Interim Payments Note Consideration and the amounts required in accordance with Section 4.26, then the Buyer shall pay to the Person in respect of whom such deduction and withholding was made an amount, which after such deduction or withholding, is equal to the payment which would have been due if no such deduction or withholding had been required, reduced by any reduction in cash Tax liability of the Company or its Affiliates by reason of being permitted to claim a foreign tax credit in connection with such deduction or withholding.

1.11                        Taxes.  The Company and its Affiliates, on the one hand, and the Buyer and its Affiliates, on the other hand, agree to use commercially reasonable efforts to cooperate to minimize or mitigate any Taxes (including any Transfer Taxes) and to defer any Taxes under the “installment sale” rules of Section 453 of the Code, arising or resulting from any transaction effected pursuant to this Agreement.

ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY

The Company hereby represents and warrants to the Buyer, except as set forth in the disclosure letter (referencing the appropriate section and paragraph numbers in this Article II; provided, however, that any disclosure under one such section or paragraph number shall be deemed to have been disclosed for all purposes of this Agreement in respect of all such other sections and paragraph numbers of this Article II to the extent that the relevance of such disclosure to such other sections and paragraph numbers is reasonably apparent from the text of such disclosure) supplied by the Company to the Buyer on the date of this Agreement (the “Company Disclosure Letter”), as follows:

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2.1                               Organization, Standing and Power; Subsidiaries.

(a)                                 The Company is a business company duly incorporated, validly existing and in good standing under the Laws of its jurisdiction of incorporation and has all requisite corporate power and authority to own, lease and operate its properties and assets and to carry on its business as now being conducted.  The Company is duly qualified to do business and, where applicable as a legal concept, is in good standing as a foreign corporation in each jurisdiction in which the character of the properties it owns, operates or leases or the nature of its activities makes such qualification necessary, except for such failures, individually or in the aggregate, that would not reasonably be expected to have a material adverse effect on the ability of the Company to consummate the transactions contemplated by this Agreement.

(b)                                 Each Subsidiary of the Company and its respective jurisdiction of formation or incorporation is set forth on Schedule 2.1(b) of the Company Disclosure Letter. Each such Subsidiary is an entity duly organized, validly existing and in good standing under the Laws of its jurisdiction of incorporation or formation and has all requisite corporate or other power and authority to own, lease and operate its properties and assets and to carry on its business as now being conducted.  Each such Subsidiary is duly qualified to do business and, where applicable as a legal concept, is in good standing as a foreign entity in each jurisdiction in which the character of the properties it owns, operates or leases or the nature of its activities makes such qualification necessary, except for such failures, individually or in the aggregate, that would not reasonably be expected to have a Material Adverse Effect. Except for the Subsidiaries set forth on Schedule 2.1(b) of the Company Disclosure Letter, the Company does not own, directly or indirectly, any outstanding securities of or other equity-related interests in any other corporation, partnership, joint venture or other Person.

2.2                               Authority; No Conflict; Required Filings and Consents.

(a)                                 The Company has all requisite corporate or other power and authority to enter into this Agreement and each of the Ancillary Agreements to which the Company will be a party and, subject to the entry of the Confirmation Order and the occurrence of the effective date under the Plan, to consummate the transactions contemplated hereby and thereby pursuant to the terms hereof and thereof, respectively.  The Company’s Subsidiaries will have, prior to the execution and delivery of the Ancillary Agreements to which they are a party, all requisite corporate or other power and authority to enter into each of the Ancillary Agreements to which such Subsidiaries will be a party and, subject to the entry of the Confirmation Order and the occurrence of the effective date under the Plan, to consummate the transactions contemplated hereby and thereby pursuant to the terms hereof and thereof, respectively.  The execution, delivery and performance by the Company of this Agreement each of the Ancillary Agreements to which the Company entity will be a party and the consummation of the transactions contemplated hereby and thereby by the Company has been duly authorized by all necessary corporate action on the part of the Company.  The execution, delivery and performance by each of the Company’s Subsidiaries of the Ancillary Agreements to which such Subsidiary will be a party and the consummation of the transactions contemplated thereby will be prior to the execution and delivery of such Ancillary Agreements duly authorized by all necessary corporate action on the part of such Subsidiary.  This Agreement has been duly executed and delivered by the Company.  The Ancillary Agreements to which the Company is a party will be duly executed

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and delivered by the Company.  The Ancillary Agreements to which the Company’s Subsidiaries are a party will be duly executed and delivered by such Subsidiaries.  This Agreement is, and each such Ancillary Agreement when so duly executed and delivered by the Company, its Subsidiaries and, if applicable, the Buyer, will be, subject to entry of the Confirmation Order and the occurrence of the effective date under the Plan, a valid and binding obligation of the Company and/or such Subsidiary, enforceable against the Company and/or such Subsidiary in accordance with their respective terms, except as enforceability may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar Laws relating to or affecting the rights of creditors generally and by equitable principles, including those limiting the availability of specific performance, injunctive relief and other equitable remedies and those providing for equitable defenses (the “Bankruptcy Exceptions”).

(b)                                 Except as set forth on Schedule 2.2(b) of the Company Disclosure Letter, the execution, delivery and performance by the Company and its Subsidiaries of this Agreement and each of the Ancillary Agreements to which it will be a party, and the consummation by the Company and its Subsidiaries of the transactions contemplated hereby and thereby, do not and will not, (i) conflict with, or result in any violation or breach of, any provision of the governing documents of the Company or any of its Subsidiaries, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, require the payment of a penalty under or result in the imposition of any Liens (other than Permitted Liens) on or with respect to any of the Transferred Assets or the Assumed Contracts, or (iii) conflict with or violate any permit, concession, franchise, license or Law applicable to the Company, its Subsidiaries or any of their respective properties or assets, with respect to the foregoing clauses (ii) and (iii), that would, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, the Business or the Transferred Assets, taken as a whole, or materially impair the ability of the Company to perform its obligations under, and consummate the transactions contemplated by, this Agreement.

(c)                                  Except as set forth on Schedule 2.2(c) of the Company Disclosure Letter, no consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with, any Governmental Entity is required by or with respect to the Company or its Subsidiaries in connection with the execution, delivery and performance by the Company and its Subsidiaries of this Agreement and each of the Ancillary Agreement to which it will be a party or the consummation by the Company and its Subsidiaries of the transactions contemplated hereby and thereby that would, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, the Business or the Transferred Assets, taken as a whole, or materially impair the ability of the Company to perform its obligations under, and consummate the transactions contemplated by, this Agreement.

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2.3                               Transferred Assets.

(a)                                 The Company and its Subsidiaries have good and valid title to the Transferred Assets, free and clear of all Liens, except for Permitted Liens, and as of the Closing the Buyer will have good and valid title to the Transferred Assets, free and clear of all Liens other than Permitted Liens (which shall be Excluded Liabilities.)

(b)                                 Other than as set forth on Schedule 2.3 of the Company Disclosure Letter, the Transferred Assets constitute, and will constitute as of the Closing, all of the Intellectual Property, manufacturing related equipment and Regulatory Authorizations used, held for use or necessary, and are sufficient, to allow the Buyer immediately after the Closing to Exploit the Products and the Naproxen Product in all material respects in the form and manner as Exploited by the Company and its Subsidiaries on the date hereof and as such Exploitation is expected to be conducted and operated on the Closing Date.

(c)                                  There are no material assets or properties related to the conduct or operation of the Business owned by any Person other than the Company or its Subsidiaries that are not currently leased or licensed to the Company or one of its Subsidiaries under valid, current lease or license arrangements and any such lease or license arrangements have been made available to the Buyer for review in the due diligence data room maintained by the Company at least three (3) Business Days prior to the date of this Agreement.

(d)                                 The Transferred Assets (i) have been maintained in all material respects in accordance with normal industry practice, and (ii) are in good operating condition and repair (subject to normal wear and tear consistent with the age of such assets).

2.4                               Financial Information; No Undisclosed Liabilities.

(a)                                 The Company has delivered to the Buyer true and complete copies of (collectively, the “Consolidated Financial Statements”): (i) audited consolidated financial statements of the Company and its Subsidiaries as of and for the years ended December 31, 2017, 2016 and 2015, and (ii) interim unaudited consolidated financial statements of the Company and its Subsidiaries as of and for the three and six months ended June 30, 2018 (the “Balance Sheet Date”), and a copy of the Consolidated Financial Statements is attached hereto as Schedule 2.4 of the Company Disclosure Letter.  The Consolidated Financial Statements present fairly in all material respects the consolidated financial condition of the Company and its Subsidiaries, and results of operations and cash flows for the dates or periods indicated thereon, in accordance with GAAP applied on a consistent basis throughout the periods indicated, except as disclosed therein and except, with respect to the interim unaudited consolidated financial statements as of and for the three and six month periods ended on the Balance Sheet Date, (i) for normal year-end audit adjustments, (ii) for the omission of footnote disclosures and statements of shareholders’ equity and cash flows as required by GAAP, and (iii) for the other matters set forth on Schedule 2.4(a) of the Company Disclosure Letter, in each case, that are not material individually or in the aggregate.  The Consolidated Financial Statements, including the footnotes thereto, have been prepared from the books and records of the Company and its Subsidiaries. The Company’s auditors have not notified in writing (or to the Company’s Knowledge, orally) the Company, its Subsidiaries or any of their respective officers or employees of any material

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liabilities, reserves, changes or issues that need to be addressed in the Consolidated Financial Statements.  The books of account and other financial records of the Company are complete and correct in all material respects and represent actual, bona fide transactions.

(b)                                 Neither the Company nor any of its Subsidiaries has any liabilities or obligations (whether accrued, absolute, contingent, known, unknown or otherwise), except for (i) the liabilities to the extent reflected in the Consolidated Financial Statements, (ii) trade payables, accrued expenses and other similar liabilities incurred by the Company or its Subsidiaries since the Balance Sheet Date in the ordinary course of business, (iii) executory contract obligations incurred in the ordinary course of business, (iv) liabilities and obligations incurred in connection with this Agreement and the transactions contemplated hereby, (v) the liabilities of the Company and its Subsidiaries set forth in Schedule 2.4(b) of the Company Disclosure Letter, and (vi) liabilities or obligations that are not, individually or in the aggregate material to the Company and its Subsidiaries, taken as a whole, the Business or the Transferred Assets, taken as a whole.

(c)                                  The Company and its Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; (iv) the recorded accountability for inventory is compared with existing inventory at reasonable intervals and appropriate action is taken with respect to any differences and (v) the unauthorized acquisition, use or disposition of such Person’s assets that could have a material effect on the Consolidated Financial Statements is prevented or timely detected.

2.5                               Intellectual Property.

(a)                                 The Transferred Intellectual Property constitutes all Intellectual Property that is used or held for use by the Company or its Subsidiaries to conduct and operate the Business, which Transferred Intellectual Property is sufficient Intellectual Property to conduct and operate the Business in all material respects as currently conducted and (except as set forth in Schedule 2.5(a) of the Company Disclosure Letter) as conducted during the twelve (12)-month period prior to the date of this Agreement.  Except as set forth in Schedule 2.5(a) of the Company Disclosure Letter, the Company or one of its Subsidiaries is the sole and exclusive legal and beneficial owner of, and has good title to, all of the Transferred Intellectual Property owned by the Company or any of its Subsidiaries, free and clear of all Liens, other than Permitted Liens, and free and clear of any requirement of any royalty payments or other payment obligations to third parties.  The Transferred Patents, the Transferred Trademarks and Transferred Domain Names owned by the Company or any of its Subsidiaries are registered or applied for in the name of the Company or its Subsidiaries and except as set forth in Schedule 2.5(a) of the Company Disclosure Letter, all assignments of Transferred Patents and Transferred Trademarks reflecting the Company’s or its Subsidiary’s ownership thereof have been duly filed or recorded (as applicable) with the United States Patent and Trademark Office and all other foreign patent and trademark offices where the rights have been registered or applied for.

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(b)                                 Except as set forth in Schedule 2.5(b) of the Company Disclosure Letter, no Intellectual Property used in or related to the Business is licensed by the Company or its Subsidiaries from any third party (other than commercially available, off-the-shelf software and immaterial non-exclusive licenses obtained in the ordinary course of business).  None of the Company or its Subsidiaries has licensed or granted any rights under or to the Transferred Intellectual Property to any third party.  For purposes of greater certainty, the term “licensed” includes any license, sublicense, covenant, non-assert, consent, release or waiver. All registrations, issuances and applications for (i) the Transferred Patents are listed on Schedule 1.1(e), (ii) the Transferred Trademarks are listed on Schedule 1.1(d) and (iii) the Transferred Domain Names are listed on Schedule 1.1(c), and, except as set forth in Schedule 2.5(b) of the Company Disclosure Letter, all such registrations, issuances and applications owned by the Company or its Subsidiaries (A) have been duly filed or registered (as applicable) with the applicable Governmental Entity or domain name registration authority (as applicable) and properly maintained, including without limitation the timely submission of all necessary filings and payment of fees in accordance with the legal and administrative requirements in the appropriate jurisdictions, and (B) have not lapsed or expired.  There is no response to an office action, payment requirement or other requirement with respect to the Transferred Trademarks or Transferred Domain Names that will come due in the period between January 1, 2019 and March 31, 2019.

(c)                                  To the Company’s Knowledge, there is no fact with respect to any patent application or trademark application comprised within the Transferred Intellectual Property (i) required to be disclosed to the United States Patent and Trademark Office on or before the date of this Agreement that was not disclosed, that would reasonably be expected to preclude the issuance of an issued patent from such patent application or a registered trademark from such trademark application or (ii) that the Company reasonably believes would render any issued patent issuing from such patent application or registered trademark granted from such trademark application invalid or unenforceable.  The Company, its Subsidiaries and, to the Company’s Knowledge, its patent counsel has complied in all material respects with applicable requirements in the filing and prosecution of the patents and patent applications comprised within the Transferred Intellectual Property, including its duty of candor.

(d)                                 Except as set forth on Schedule 2.5(d) of the Company Disclosure Letter, to the Company’s Knowledge, no third party is infringing or violating or misappropriating, or has infringed, violated or misappropriated, any of the Transferred Intellectual Property.  None of the Company or its Subsidiaries has sent any notice to or asserted or threatened any action or claim against any Person involving or relating to any Transferred Intellectual Property.  The Company and its Subsidiaries have taken commercially reasonable measures, consistent with industry practices, to maintain in confidence all material trade secrets and material confidential information comprising a part of the Transferred Intellectual Property.

(e)                                  The conduct and operation of the Business does not infringe or violate or constitute a misappropriation, and has not infringed, violated or constituted a misappropriation, of any Intellectual Property of any third party.  Since the Reference Date, none of the Company or its Subsidiaries has received any written or, to the Company’s Knowledge, other claim or notice alleging any such infringement, violation or misappropriation.  There is no pending or, to the Company’s Knowledge, threatened, and there has been no, claim, interference, inter partes

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proceeding, opposition or demand of any third party challenging the ownership, use, validity or scope of any Transferred Intellectual Property owned by the Company or any of its Subsidiaries or to the Company’s Knowledge exclusively licensed by the Company or any of its Subsidiaries.  None of the Company or its Subsidiaries has been served with or provided written or, to the Company’s Knowledge, other notice that any Transferred Intellectual Property is the subject of any Order, and none of the Company or its Subsidiaries is subject to any Order barring or limiting the Company’s or its Subsidiaries’ use of any Transferred Intellectual Property.  None of the Company or its Subsidiaries is a party to any past, pending or, to the Company’s Knowledge, threatened, action, lawsuit, or any other judicial, arbitral or administrative proceeding relating to any Transferred Intellectual Property, including involving any claim that the Company or its Subsidiaries infringed, misappropriated or violated the Intellectual Property rights of any third party.

(f)                                   The execution, delivery and performance of this Agreement and the Ancillary Agreements and the consummation of the transactions contemplated hereby and thereby will not result in the loss, forfeiture, termination, license, or impairment of, or give rise to any obligation to transfer or to create, change or abolish, or limit, terminate, or consent to the continued use by the Buyer of any rights in any Transferred Intellectual Property or any Intellectual Property licensed under the Assumed Contracts.

(g)                                  No current or former employee, officer, director, stockholder, consultant or independent contractor of the Company or its Subsidiaries has any right, title, claim or interest in, to or under any Transferred Intellectual Property owned by the Company or any of its Subsidiaries that has not been exclusively assigned and transferred to the Company or its Subsidiaries, and each current and former employee, officer, director, stockholder, consultant or independent contractor who is or was involved in the development of any Intellectual Property rights used in or related to the conduct or operation of the Business has executed a written assignment agreement with the Company or one of its Subsidiaries assigning, to the fullest extent permissible under applicable Law, all of such person’s right, title and interest in and to such Intellectual Property rights to the Company or such Subsidiary, which assignment includes a present tense assignment of all current and future Intellectual Property rights.

(h)                                 No Transferred Intellectual Property owned by the Company or any of its Subsidiaries was developed, in whole or in part, under contract with or using the facilities, funding or personnel of any Governmental Entity or university or other educational institution that would give any such authority, university or institution any rights to such Transferred Intellectual Property or entitle any such Governmental Entity, university or institution to royalties or other payments.

(i)                                     The Company and its Subsidiaries are in compliance in all material respects with all applicable Laws, contractual commitments and published privacy policies relating to the privacy of patient medical records and all other personal information and data, including with respect to the collection, storage, use, sharing, transfer, disposition, protection and processing thereof.  None of the Company or its Subsidiaries has received any notification or allegation from any competent authority (including any information or enforcement notice, or any transfer prohibition notice) alleging that the Company or its Subsidiaries has not complied in any material respect with applicable Laws relating to privacy and/or data protection. No

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individual has successfully claimed, and to the Company’s Knowledge, no grounds exist for an individual to claim, compensation from the Company or its Subsidiaries for material breaches of applicable data protections law or for loss or unauthorized disclosure of personal information and data.

2.6                                     Contracts.

(a)                                 Schedule 1.1(j) sets forth a true and complete list of all Assumed Contracts as of the date hereof. Correct and complete copies of each Assumed Contract (including all modifications, amendments and supplements thereto) have been delivered to Buyer or its advisors (and with respect to Assumed Contracts that are in oral form, the Company has provided the Buyer with a written summary of the terms of such contract).

(b)                                 Each of the Assumed Contracts represents a valid and binding obligation of the Company and its Subsidiaries party thereto and, to the Company’s Knowledge, each other party thereto, and is enforceable against the Company and its Subsidiaries and, to the Company’s Knowledge, each other party thereto, in accordance with its terms, and is in full force and effect, subject to the Bankruptcy Exceptions. Each of the Assumed Contracts shall continue to be in full force and effect and valid, binding and enforceable on substantially the same terms immediately following the consummation of the transactions contemplated hereby, subject to the Bankruptcy Exceptions.  None of the Company or its Subsidiaries or, to the Company’s Knowledge, any other party thereto is in material breach or material violation of or material default under, or has provided or received any written notice of any intention to terminate, any of the Assumed Contracts, or has committed or failed to perform any act which, with or without notice, lapse of time or both would constitute a material breach or material violation of or material default under any of the Assumed Contracts.

2.7                               Litigation.  Except as set forth on Schedule 2.7 of the Company Disclosure Letter, there is no, and since January 1, 2016 (the “Reference Date”) there has not been any, action, suit, proceeding, claim, arbitration, litigation, or investigation, in each case, whether commenced by a Governmental Entity or any other third party (an “Action”), pending against the Company or any of its Subsidiaries or, to the Company’s Knowledge, threatened against the Company or any of its Subsidiaries that would, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, the Business or the Transferred Assets, taken as a whole, or materially impair the ability of the Company to perform its obligations under, and consummate the transactions contemplated by, this Agreement.  As of the date hereof, there are no Court Orders (whether rendered by a court, an administrative agency or by an arbitrator) to which the Transferred Assets, the Company or any of the Company’s Subsidiaries is subject that would, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, the Business or the Transferred Assets, taken as a whole, or materially impair the ability of the Company to perform its obligations under, and consummate the transactions contemplated by, this Agreement.

2.8                               Compliance with Laws; Permits.  The Company’s and its Subsidiaries’ conduct and operation of the Business and ownership and use of the Transferred Assets are, and since the Reference Date have been, in compliance in all material respects with all applicable Laws.  Since the Reference Date, none of the Company or its Subsidiaries have received any written notice of

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any Action against it alleging any failure to comply in any material respect with any applicable Law.  No material investigation or audit by any Governmental Entity with respect to the conduct and operation of the Business or the Transferred Assets is pending or (to the Company’s Knowledge) has been threatened, and since the Reference Date, none of the Company or its Subsidiaries have received any written notice of any such investigation or audit. The Company has made available to the Buyer complete and correct copies of all written notices received by the Company or its Subsidiaries alleging any material failure to comply under any applicable Law, or with respect to any investigation by any Governmental Entity, in each case, since the Reference Date. The Company or its Subsidiaries owns or possesses all right, title and interest in and to, and are and since the Reference Date, has been in compliance with, all Permits necessary or required in connection with the conduct and operation of the Business except as would not reasonably be expected, individually or in the aggregate, to materially and adversely affect the Business.  All such Permits that are material to the Company and its Subsidiaries, taken as a whole, or the Business, are set forth on Schedule 2.8 of the Company Disclosure Letter, each of which is valid and in full force and effect and none of which is (to the Company’s Knowledge) expected to be terminated, impaired or require amendment, or to become terminable, impaired or require amendment, in whole or in part, as a result of or in connection with the consummation of the transactions contemplated by this Agreement.  The Company has delivered to the Buyer true and complete copies of all such Permits. None of the Company or its Subsidiaries has received any written communication since the Reference Date from any Governmental Entity or other entity having jurisdiction over the Company or its Subsidiaries or their respective licensees regarding (i) any actual or alleged material violation of any such Permit or any failure to comply with any term or requirement of any such Permit, or (ii) any actual, alleged or proposed revocation, withdrawal, suspension, cancellation, termination or modification of any such Permit, and, to the Company’s Knowledge, there is no reasonable basis for the issuance of any such notice or the taking of any such action. There is no actual, nor to the Company’s Knowledge, threatened investigation, inquiry or administrative or judicial action, hearing or enforcement proceeding by any Governmental Entity against the Company or its Subsidiaries or their respective licensees regarding any violation of any such Permit that if determined adversely to the Company or any of its Subsidiaries would be material to the Business. All fees and charges with respect to the Permits have been timely paid in full since the Reference Date, except as would not reasonably be expected, individually or in the aggregate, to materially and adversely affect the Business.

2.9                               Regulatory Authorizations. The Company and its Subsidiaries have all Regulatory Authorizations necessary for the Company and its Subsidiaries to own, lease or operate the Transferred Assets and conduct and operate the Business in all material respects in the manner currently conducted or as conducted since May 23, 2018.  Schedule 1.1(a) contains a true and complete listing of all such Regulatory Authorizations, which such Regulatory Authorizations constitute the Transferred Regulatory Authorizations.  The Company and its Subsidiaries are in compliance with the terms of the Transferred Regulatory Authorizations, except as would not reasonably be expected, individually or in the aggregate, to materially and adversely affect the Business and have not received any notices that it is in violation of any of the terms or conditions of such Transferred Regulatory Authorizations.  All such Transferred Regulatory Authorizations are in full force and effect and no action or claim is pending or, to the Company’s Knowledge, threatened to revoke, suspend, adversely modify or terminate any such Transferred Regulatory Authorizations or declare any such Transferred Regulatory Authorizations invalid in any

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material respect. To the Company’s Knowledge, no event has occurred that would reasonably be expected to result in the suspension, limitation, revocation or rescission, cancellation, non-renewal, or adverse modification of any of the Transferred Regulatory Authorizations.

2.10                        Product Liability.

(a)                                 Schedule 2.10 of the Company Disclosure Letter sets forth a true and complete list of all Product Registrations as of the date hereof.  For purposes of this Agreement, “Product Registrations” means all material marketing approvals, clearances or other authorizations necessary to conduct and operate the Business and granted to the Company, or its Subsidiaries by, or pending with, any Governmental Entity.

(b)                                 All Products sold under the Product Registrations are Exploited in accordance with the specifications and standards contained in such Product Registrations, except where the failure to comply therewith would not reasonably be expected, individually or in the aggregate, to materially and adversely affect the Business or the Transferred Assets.

(c)                                  To the Company’s Knowledge, except as would not reasonably be expected, individually or in the aggregate, to materially and adversely affect the Business, each Product is free of and does not contain any defect in the design or formulation, or any defect resulting from, arising from, or in connection with, the Exploitation of such Product.

(d)                                 Since the Reference Date, except as would not reasonably be expected, individually or in the aggregate, to materially and adversely affect the Business, (i) there has not been, nor is there currently under consideration by the Company or its Subsidiaries, or to the Company’s Knowledge, any Governmental Entity, any product recall, market withdrawal, post-sale warning, or other corrective action in respect of the Products, and (ii) no Product distributed or sold prior to the date hereof has been discontinued (whether voluntarily or otherwise) by the Company or its Subsidiaries due to concerns over potential harm to human health or safety.

(e)                                  Except as would not reasonably be expected, individually or in the aggregate, to materially and adversely affect the Business, no product liability claims have been received in writing by the Company or its Subsidiaries regarding the Products, and there is no pending or, to the Company’s Knowledge, threatened claim against the Company or its Subsidiaries with respect to the quality, merchantability, or safety of or defect in, or involving a breach of warranty which has not been fully resolved with respect to, or involving liability directly or indirectly caused by the Products that would reasonably be expected to have a Material Adverse Effect. To the Company’s Knowledge, no such claims have been threatened against the Company or its Subsidiaries as of the date hereof. There is no Order outstanding against the Company or its Subsidiaries relating to product liability claims. To the Company’s Knowledge, there are no design, manufacturing or other defects, latent or otherwise, with respect to the Products.

2.11                        Regulatory Matters.

(a)                                 Schedule 2.11(a) of the Company Disclosure Letter sets forth a true and complete list as of the date hereof of all of the Products and the Naproxen Product, including the dosage form, active ingredient and strength of each such Product. In respect of the Products,

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Schedule 2.11(a) of the Company Disclosure Letter sets forth (i) a description of the regulatory status thereof (as of the date hereof), including the pending or approved NDAs or Abbreviated New Drug Applications (“ANDAs”) that the Company or any of its Subsidiaries has submitted to the FDA in respect of such Products (collectively, “Filed NDAs”); and (ii) whether the particular regulatory status has been presented to the FDA or any other Governmental Entity under the name of the Company or one of its Subsidiaries, or under the name of another Person. Copies of the Filed NDAs and any other material filings or submissions made by the Company or any of its Subsidiaries with the FDA or any other Governmental Entity (1) were reviewed before filing by an employee or other agent of the Company or one of its Subsidiaries who is knowledgeable about the contents of the filing and, were true and accurate in all material respects when filed (subject to correction, amendment or supplementation by subsequent filings as required by the FDA or other Governmental Entity), and were made in good faith upon the best information reasonably available to the Company and its Subsidiaries; and (2) have been placed in the due diligence data room maintained by the Company.

(b)                                 Except as set forth in Schedule 2.11(b) of the Company Disclosure Letter, the conduct and operation of the Business is, and at all times since the Reference Date has been, in compliance in all material respects with the FDC Act, and applicable regulations issued by the FDA and all other applicable Laws, including any regulatory Laws of any applicable non-U.S. jurisdiction, and in all material respects with all reporting requirements under the FDC Act, the associated rules and regulations promulgated thereunder and all other applicable Laws. Without limiting the generality of the foregoing, (i) the Company and its Subsidiaries have obtained all material clearances, authorizations, licenses and registrations required by any Governmental Entity (including, without limitation, the FDA or any other Governmental Entity, domestic or foreign, performing functions similar to those performed by the FDA) to permit the conduct of the Business as currently conducted, (ii) the Company and its Subsidiaries have filed with each applicable Governmental Entity (including, without limitation, the FDA or any other Governmental Entity, domestic or foreign, performing functions similar to those performed by the FDA) all material, required filings, declarations, listings, registrations, reports or submissions, including but not limited to Adverse Event reports and all manufacturing changes to the Products, (iii) complete and correct copies of all such documents referred to in the immediately preceding clause (ii) have been delivered to the Buyer and (iv) all such filings, declarations, listings, registrations, reports or submissions were in compliance in all material respects with applicable Laws when filed, or subsequently corrected, and no deficiencies have been asserted by any applicable Governmental Entity to the Company or its Subsidiaries with respect to any such filings, declarations, listing, registrations, reports or submissions.

(c)                                  Each of the Products and the Naproxen Product is being, and has been for the past three (3) years, researched, developed, tested, manufactured, supplied, distributed, and stored by or on behalf of the Company or its Subsidiaries in compliance in all material respects with the FDC Act and applicable regulations issued by the FDA, including, as applicable, those requirements relating to the FDA’s current Good Manufacturing Practices, Good Laboratory Practices and Good Clinical Practices, all filings, declarations, listings, registrations, reports or submissions of the Company or its Subsidiaries to Governmental Entities relating to such Product or Naproxen Product (including with respect to all Product or Naproxen Product, as applicable, specifications), and all other applicable Laws, including any rules and regulations of

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any other Governmental Entity, domestic or foreign, performing functions similar to those performed by the FDA.

(d)                                 All preclinical studies and clinical trials sponsored by the Company and its Subsidiaries have been conducted in material compliance with applicable Laws, rules and regulations and Good Clinical Practices, and federal and state Laws, rules and regulations, including, all applicable security laws and privacy standards restricting the use and disclosure of individually identifiable health information.  Scientific reports of such investigations have been, or will be, drafted in all material respects according to applicable requirements and raw data adequately archived and available for inspection by the applicable Governmental Entities. None of the Company or its Subsidiaries has received any written notices or other correspondence from the FDA or any other foreign, federal, state or local Governmental Entity performing functions similar to those performed by the FDA with respect to (i) requiring the termination, suspension or material modification of ongoing clinical trials or pre-clinical studies, (ii) adverse inspection reports, (iii) notices of adverse findings, warning letters, untitled letters or (iv) other correspondence asserting that the Company or any of its Subsidiaries may not be in compliance with applicable Laws or that the Products or Naproxen Product or any compounds contained in the Products or Naproxen Product may not be approvable.

(e)                                  Since the Reference Date, neither the Company nor any of its Subsidiaries has been subject to any investigation related to the Products or the conduct and operation of the Business that is pending and of which the Company or its Subsidiaries has been notified in writing or which (to the Company’s Knowledge) has been threatened, in each case by any Governmental Entity pursuant to the Medicaid rebate law (42 U.S.C. § 1396r-8), the Veterans Health Care Act of 1992, the Federal Healthcare Program Anti-Kickback Statute (42 U.S.C. §1320a-7b(b), the Federal False Claims Act (31 U.S.C. §3729) or any similar anti-kickback or false claims statutes applicable to the Company and its Subsidiaries.  Since the Reference Date, neither the Company nor any of its Subsidiaries has submitted any claim for payment to any government healthcare program in connection with any referrals related to the Products that violated in any material respect any applicable self-referral Law.  Since the Reference Date, neither the Company nor any of its Subsidiaries has submitted any claim for payment to any government healthcare program related to the Products in material violation of any Laws relating to false claim or fraud.

(f)                                   Since the Reference Date, neither the Company or any of its Subsidiaries nor, to the Company’s Knowledge, any of the Representatives acting on behalf of the Company or its Subsidiaries has been under investigation for, nor has (i) made an untrue statement of material fact or fraudulent statement to any Governmental Entity, failed to disclose a material fact required to be disclosed to any Governmental Entity, or committed an act, made a statement, or failed to make a statement, including with respect to any scientific data or information, that, at the time such disclosure was made or failure to disclose occurred, would reasonably be expected to provide a basis for the Governmental Entity to invoke the FDA policy respecting “Fraud, Untrue Statements of Material Facts, Bribery and Illegal Gratuities,” set forth in 56 Fed. Reg. 46191 (September 10, 1991), in each case as related to the Products or the conduct or operation of the Business, (ii) been convicted of any crime or engaged in any conduct for which disqualification, exclusion or similar action is authorized by a Governmental Entity in relation to the development or approval of any pharmaceutical product, including for which debarment is

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mandated by 21 U.S.C. § 335a(a) or authorized by 21 U.S.C. § 335a(b) or (iii) been convicted of any crime or engaged in any conduct for which such Person or entity could be excluded from participating in the Federal health care programs under Section 1128 of the Social Security Act of 1935, as amended.

(g)                                  Since the Reference Date, none of the Company or its Subsidiaries have voluntarily or involuntarily initiated, conducted or issued, or caused to be initiated, conducted or issued, any recall, field alerts, field corrections, market withdrawal, safety alert or warning, “dear doctor” letter, investigator notice or other material notice or action relating to an alleged lack of safety, efficacy or regulatory compliance of the Products.  None of the Company or its Subsidiaries has knowledge of any facts that are reasonably likely to cause (i) the recall, market withdrawal or replacement of any Product, (ii) a material change in the marketing classification or a material change in the labeling of any Product, or (iii) a termination or suspension of the marketing of any Product.  Since the Reference Date, none of the Company or its Subsidiaries has received any written notice that any Governmental Entity has: (1) commenced, or threatened to initiate, any action to request the recall of any Product; (2) commenced, or threatened to initiate, any action to enjoin the manufacture or distribution of any Product; (3) issued any demand letter, finding of material deficiency or non-compliance or adverse inspection report (including any FDA Form 483s, FDA Notices of Adverse Findings, Untitled Letters, or Warning Letters) in respect of any Product; or (4) commenced, or threatened to initiate, any action regarding inappropriate advertising or marketing of any Product, nor to the Company’s Knowledge do any conditions currently exist that reasonably could be expected to lead to any of the foregoing.

(h)                                 The Company has delivered to the Buyer complete and correct copies of all material scientific, CMC (including any supply chain risk assessments), preclinical, and clinical data of the Company and its Subsidiaries, all material non-clinical and safety risk assessments, and all material written correspondence with all Governmental Entities, in each case with respect to any Product or the Naproxen Product.

2.12                        Taxes.

(a)                                 There are no Liens, which such Liens would continue to be attached to the Transferred Assets after the Closing Date, with respect to Taxes upon any of the Transferred Assets.

(b)                                 The Company and its Subsidiaries have timely filed all federal and state income and all other material Tax Returns in respect of the Transferred Assets and the conduct or operation of the Business with respect to any period ending on or prior to the Closing Date that the Company or such Subsidiary was required to file.  All such Tax Returns are true, correct and complete in all material respects.

(c)                                  The Company and its Subsidiaries have paid all income and other material Taxes in respect of the Transferred Assets and the conduct and operation of the Business.

(d)                                 The Company and its Subsidiaries have withheld and collected all material Taxes that it was or is required by applicable Law to withhold and collect in respect of the

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Transferred Assets and the conduct and operation of the Business, and all such Taxes have been paid over to the proper Taxing Authority or, if not yet due, are being held by the Company or its Subsidiaries for payment.

(e)                                  No Tax audits or other legal proceedings are pending, or to Company’s Knowledge, threatened, in each case, with regard to any Taxes or Tax Returns of the Company or its Subsidiaries in respect of the Transferred Assets and the conduct and operation of the Business.  None of the Company or its Subsidiaries has requested or obtained any extension of time within which to file any Tax Return in respect of the Transferred Assets and the conduct and operation of the Business or in which any Tax may be assessed or collected by any Taxing Authority (other than any extension which is no longer in effect).

(f)                                   No Taxing Authority with which the Company and its Subsidiaries do not file a particular Tax Return in respect of the Transferred Assets and the conduct and operation of the Business has claimed that the Company or any of its Subsidiaries is or may be subject to taxation by that Taxing Authority. None of the Company or its Subsidiaries, in respect of the Transferred Assets and the conduct and operation of the Business, is engaged in (or is treated as engaged in due to prior activities) a trade or business through a “permanent establishment” within the meaning of an applicable income Tax treaty in any jurisdiction other than the jurisdiction in which they are formed.

(g)                                  None of the Transferred Assets is (i) a United States Real Property Interest, as defined in Section 897(c) of the Code, (ii) an equity interest in any person (or treated as any equity interest in any person for U.S. federal income tax purposes), or (iii) tax-exempt use property within the meaning of Section 168(g) of the Code.

(h)                                 The Company and its Subsidiaries have collected and remitted any material sales, use, value added and similar Taxes applicable in respect of the Transferred Assets and conduct and operation of the Business.

(i)                                     The Buyer Entities will not, in respect of the Transferred Assets and the conduct and operation of the Business, be required to include any material item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) beginning after the Closing, including as a result of prepaid amount received by the Company or any of its Subsidiaries prior to the Closing.

(j)                                    Neither the execution of, nor the consummation of the transactions contemplated by this Agreement (either alone or when combined with the occurrence of any other event, including without limitation, a termination of employment) will result in the receipt or retention by any person who is a “disqualified individual” (within the meaning of Code Section 280G) of the Company or any of its Subsidiaries of any payment or benefit from the Company or any of its Subsidiaries that is or could be characterized as a “parachute payment” (within the meaning of Code Section 280G), determined without regard to the application of Code Section 280G(b)(5).

2.13                        Suppliers and Wholesalers.  Schedule 2.13 of the Company Disclosure Letter sets forth as of the date hereof (a) a true and complete list of the top suppliers of the Business for the

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nine (9) months ended September 30, 2018 based on the total dollar value of purchases from each supplier (the “Material Suppliers”) and (b) a true and complete list of the top wholesalers of the Business for the nine (9) months ended September 30, 2018 based on the total dollar value of sales to each customer (the “Material Wholesalers”).  Except as would not be reasonably expected, individually or in the aggregate, to be material to the Company and its Subsidiaries, taken as a whole, the Business or the Transferred Assets, taken as a whole, the Company’s and its Subsidiaries’ relationships with the Material Suppliers and Material Wholesalers are good commercial working relationships and, with respect to such Material Suppliers and Material Wholesalers, (a) during the last twelve (12) months, none has, to the Company’s Knowledge, threatened to cancel or otherwise terminate, or provided notice to any of the Company or its Subsidiaries that it intends to cancel or otherwise terminate, the relationship of such Person with the Company or its Subsidiaries and (b) none has, during the last twelve (12) months, decreased materially or, to the Company’s Knowledge, threatened to decrease or limit materially, or provided notice to any of the Company or its Subsidiaries that it intends to modify materially in an adverse manner its relationship with the Company or its Subsidiaries, or provided notice to any of the Company or its Subsidiaries that it intends to decrease or limit materially its services or supplies to any of the Company or its Subsidiaries in connection with the conduct and operation of the Business.

2.14                        Affiliate Transactions.  Except as set forth on Schedule 2.14 of the Company Disclosure Letter, within the twelve (12) month period immediately preceding the date hereof no officer or director of the Company or its Subsidiaries, any immediate family member of any of the foregoing, CRG or, to the Company’s Knowledge, any other current or former stockholder of the Company (a) is a party to or otherwise directly or indirectly interested in any Assumed Contract, (b) has any interest in any Transferred Asset (other than any indirectly through equity ownership in the Company), or (c) to the Company’s Knowledge has, directly or indirectly, any ownership, participation, royalty, or other interest in, or is an officer, director, employee or consultant or contractor of, any Person that competes with, does business with, or has any contractual arrangement with the Company or its Subsidiaries, except in the case of (a) and (b), salaries, expense reimbursement and employee benefits in respect of employment with, or service as an officer or director of the Company or any of its Subsidiaries (in such Person’s capacity as such).

2.15                        Absence of Certain Developments.  Except as required or permitted by this Agreement or by any of the Ancillary Agreements or as set forth on Schedule 2.15 of the Company Disclosure Letter, since December 31, 2017, (a) the Company and its Subsidiaries have operated and conducted the Business in the ordinary course of business consistent with past practice, and there has not occurred any event or events that, individually or in the aggregate, have had, or would reasonably be expected to have, a Material Adverse Effect; and (b) none of the Company or its Subsidiaries has taken any action that would require consent of the Buyer under Section 4.10 between the date hereof and the Closing.

2.16                        Environmental Matters. Except as would not be reasonably expected, individually or in the aggregate, to have a Material Adverse Effect, the Company’s and its Subsidiaries’ conduct and operation of the Business are not in violation of any Laws applicable to protection of the environment or human health, including with respect to exposure to hazardous or toxic substances, materials or wastes, pollutants or contaminants (“Hazardous Substances”) worker

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health and safety, (“Environmental Laws”).  Except as would not reasonably be expected individually or in the aggregate, to have a Material Adverse Effect, the Company and its Subsidiaries have and are in material compliance with all Permits required pursuant to Environmental Laws with respect to the conduct and operation of the Business, each of which is valid and in full force and effect. With respect to the conduct and operation of the Business, none of the Company or its Subsidiaries has received any unresolved written notice from any Governmental Entity or any other Person (a) regarding any actual or alleged material violation of Environmental Laws, or any actual or potential material liabilities (including, for personal injury, property damage or investigatory or cleanup obligations) arising under Environmental Laws or (b) any written request for information, notice of claim, demand or notification that any of them may be potentially responsible for any material investigatory, corrective or remedial obligations with respect to any release of or exposure to Hazardous Substances under any Environmental Laws.

2.17                        Certain Business Practices.

(a)                                 None of the Company or its Subsidiaries, any of their respective officers, directors or employees, or to Company’s Knowledge, the Company’s and Subsidiaries’  respective Representatives acting on their behalf, have directly or indirectly made or authorized any offer, gift, payment, or transfer, or promise of, any money or anything else of value, or provided any benefit, to any Person, (i) for the purpose of (A) influencing any act or decision of that Person, (B) inducing that Person to omit to do any act in violation of any duty under Law, (C) securing any improper advantage, or (D) inducing that Person to use his or her influence with a Governmental Entity or public international organization, (1) to affect or influence any act or decision of any Governmental Entity or public international organization, or (2) to assist the Company or its Subsidiaries in obtaining or retaining business, or directing business to any Person, whether or not lawful, or (ii) which would otherwise constitute or have the purpose or effect of public or commercial bribery, acceptance of or acquiescence in extortion, kickbacks or other unlawful or improper means of obtaining business or any improper advantage.

(b)                                 The Company is familiar with the U.S. Foreign Corrupt Practices Act of 1977 (the “FCPA”), and the Company, its Subsidiaries and, to Company’s Knowledge, each of the Company’s and Subsidiaries’ respective Representatives acting on behalf of the Company or its Subsidiaries, are in full compliance with the FCPA, and any other applicable Law of similar effect, including all Laws enacted to implement the OECD Convention on Combating Bribery of Foreign Officials in International Business Transactions and the UK ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ (collectively, the “Anti-Corruption Laws”), and to the Company’s Knowledge none of them have taken any action which would cause the Company or its Subsidiaries to be in violation of any Anti-Corruption Law.

(c)                                  No portion of any payments paid by the Buyer to the Company, its Permitted Designees or any Royalty Recipient will be used to fund payments in connection with securing government approvals or as a payment, gift, promise to give, or authorization of the giving of anything of value to any government official, political party or official thereof or any candidate for foreign political office for purposes of (i) influencing any act or decision of such government official in his official capacity, (ii) inducing such government official to do or omit to do any act in violation of the lawful duty of such official, or (iii) securing any improper

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advantage; or inducing such official to use his influence with a government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality.

(d)                                 The Company and its Subsidiaries have at all times complied with, and are currently in compliance with, all applicable economic sanctions, export control, import, and other international trade laws and regulations (collectively, the “International Trade Laws”).

(e)                                  None of the Company, its Subsidiaries, any of their respective officers, directors, or employees, or to Company’s Knowledge, any of the Company’s and Subsidiaries’  respective Representatives acting on their behalf, have been investigated for, or charged by any Governmental Entity with a material violation of any Anti-Corruption Laws or International Trade Laws, and there are not now, nor have there been in the past five (5) years, any claims, allegations, or inquiries pending or, to Company’s Knowledge, threatened against the Company, its Subsidiaries or any of their respective Representatives acting on behalf of the Company or its Subsidiaries concerning violations of any Anti-Corruption Laws or International Trade Laws.

(f)                                   The Company and its Subsidiaries maintain a system of internal accounting controls designed to provide reasonable assurances that: (i) transactions are executed and access to assets is permitted only in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles or any other criteria applicable to such statements and to maintain accountability for assets; and (iii) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.

(g)                                  The term “government official,” as used in this Section 2.17 and Section 3.18 (and in all related definitions herein) shall mean any officer or employee of a foreign government or any department, agency, or instrumentality thereof, including government owned or controlled companies, or of a public international organization, or any Person acting in an official capacity for or on behalf of any such government or department, agency, or instrumentality, or for or on behalf of any such public international organization.

(h)                                 The term “Representatives,” as used in this Section 2.17 shall be deemed to include any distributor of Product in the Business.

2.18                        Inventory.  All Transferred Inventory consist of quality and quantity usable and, with respect to finished goods, salable, in the ordinary course of the Business, except for obsolete items and items of below-standard quality which have been written off or written down to fair market value.

2.19                        Brokers.  Other than as set forth in Schedule 2.19 of the Company Disclosure Letter, no agent, broker, investment banker, financial advisor or other firm or Person is or shall be entitled, directly or indirectly, as a result of any action, agreement or commitment of the Company, its Subsidiaries or any of their respective Affiliates, to any broker’s, finder’s, financial advisor’s or other similar fee or commission in connection with any of the transactions contemplated by this Agreement.

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2.20                        Employees and Employment Matters.

(a)                                 The Company has provided Buyer with a true and complete list of all Employees as of the date hereof, which accurately sets forth each Employee’s (i) name, (ii) exempt/non-exempt status, (iii) the existence and terms of all written and oral employment agreements, if any, (iv) title and position, (v) date of hire, (vi) rate of compensation, including any bonus potential, if applicable, together with a statement of the full amount of all remuneration paid to each such Employee during the twelve (12)-month period ending on August 31, 2018, (vii) location of employment, and (viii) amount of accrued vacation and sick leave pay, if any.

(b)                                 Neither the Company nor any of its Subsidiaries is a party to, or bound by, any collective bargaining or other contract with a labor union, labor organization, works council, or other similar employee representative body, and there are no labor unions, labor organizations, works councils, or other similar employee representative bodies representing, purporting to represent or, to the Company’s Knowledge, attempting to represent any Employee. There is not currently, nor since the Reference Date has there been, nor to the Company’s Knowledge has there been any threat since the Reference Date of, any strike, slowdown, work stoppage, lockout, concerted refusal to work overtime, union election petition, demand for recognition, or other similar labor activity or dispute, or unfair labor practice charge, complaint, labor grievance or labor arbitration, against the Company or any of its Subsidiaries.  None of the transactions contemplated by this Agreement require the Company or any of its Subsidiaries to provide any notification or consultation with any labor union, labor organization, works council or other similar employee representative body.

(c)                                  Copies of all written material employment agreements, consulting agreements and independent contractor agreements or arrangements have been provided to the Buyer.  To the Company’s Knowledge, the activities of the Employees with respect to the Business do not conflict with or constitute, and have not conflicted with or constituted, a breach of the terms of any employment agreement, consulting agreement, independent contractor agreement, intellectual property disclosure agreement, restrictive covenant agreement, or other agreement or obligation under which such Employee is bound or obligated, and none of the Company or its Subsidiaries has received or is aware of any allegation to such effect.

(d)                                 Except as set forth in Schedule 2.20(d) of the Company Disclosure Letter, there are no material Actions against the Company or its Subsidiaries pending, or to the Company’s Knowledge, threatened to be brought or filed, by or with any Governmental Entity or arbitrator in connection with the employment or engagement of any current or former employee, consultant or independent contractor of the Business, including, without limitation, any material claim relating to unfair labor practices, employment discrimination, harassment, retaliation, equal pay, misclassification, wages and hours, or any other employment-related matter arising under applicable Laws.

(e)                                  Schedule 2.20(e) of the Company Disclosure Letter lists each employee of the Company and its Subsidiaries who was terminated or laid off for any reason other than for cause, or whose hours were reduced by more than 50%, during the thirty (30) days preceding the

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date of this Agreement, and for each such employee, sets forth: (i) the date of such termination, layoff or reduction in hours; and (ii) the location to which the employee was assigned.

(f)                                   Except as disclosed in the electronic mail sent by counsel to the Company to counsel to the Buyer on October 26, 2018 at 3:18 p.m., Eastern Time, (i) no Employee has any agreement as to length of notice or severance payment required to terminate his or her employment, and (ii) each Employee is employed at will and may be terminated at any time for any reason.

2.21                        Benefit Plans.

(a)                                 Set forth on Schedule 2.21(a) of the Company Disclosure Letter is a true and complete list of each material Company Benefit Plan.  For purposes of this Agreement, “Company Benefit Plan” means each (i) “employee benefit plan,” as defined in Section 3(3) of ERISA and (ii) other pension, retirement, deferred compensation, excess benefit, profit sharing, bonus, incentive, equity or equity-based, phantom equity, employment, consulting, severance, change-of-control, retention, health, life, disability, paid-time off, holiday, welfare and fringe benefit plan, program, contract, or arrangement (whether written or unwritten), in any case, maintained, contributed to, or required to be contributed to, by the Company or any of its ERISA Affiliates for the benefit of any current or former employee, director, officer or consultant (who is a natural person) of the Company or any of its Subsidiaries or with respect to which the Company or any of its Subsidiaries has any liability.

(b)                                 As applicable with respect to each material Company Benefit Plan, the Company has made available to Buyer, true and complete copies of (i) each material Company Benefit Plan, including all amendments thereto, and in the case of an unwritten material Company Benefit Plan, a written description thereof, (ii) the current summary plan description and (iii) the determination, opinion or advisory letter, if any, with respect to such Company Benefit Plan.

(c)                                  Each Company Benefit Plan has been maintained, operated and administered in compliance in all material respects with its terms and any related documents or agreements and the applicable provisions of ERISA, the Code and all other Laws.

(d)                                 None of the Company or any of its ERISA Affiliates maintains, contributes to, is required to contribute to, or has any actual or contingent liability with respect to, (i) any “employee pension benefit plan” (within the meaning of Section 3(2) of ERISA) that is subject to Title IV or Section 302 of ERISA or Section 412 of the Code, (ii) any “multiemployer plan” (within the meaning of Section 3(37) of ERISA), (iii) any “multiple employer plan” (within the meaning of Section 413 of the Code) or (iv) any “multiple employer welfare arrangement” (within the meaning of Section 3(40) of ERISA).

(e)                                  No Company Benefit Plan provides death, medical, dental, vision or life insurance benefits beyond termination of service or retirement other than coverage mandated by applicable Law.

(f)                                   Neither the execution of, nor the performance of the transactions contemplated by, this Agreement will either alone or in connection with any other event(s) (A)

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result in any payment becoming due to any current or former employee, director, officer, or consultant (who is a natural person) of the Company or its Subsidiaries, (B) increase any amount of compensation or benefits otherwise payable under any Company Benefit Plan, (C) result in the acceleration of the time of payment, funding or vesting of any benefits under any Company Benefit Plan, or (D) require any contribution or payment to fund any obligation under any Company Benefit Plan.

2.22                        Securities Laws.

(a)                                 The Company is, or, as applicable, its Permitted Designees that are receiving the Closing Consideration (as applicable, the “Investor(s)”) are, receiving the shares of Parent Common Stock being issued as the Equity Consideration solely for the purpose of investment and not with a view to, or for sale in connection with, any distribution thereof in violation of the Securities Act. The Investor(s) acknowledge that the shares being issued as the Equity Consideration are not registered under the Securities Act, any applicable state securities Law or any applicable foreign securities Laws, and that such shares may not be transferred or sold except pursuant to the registration provisions of the Securities Act or applicable foreign securities Laws or pursuant to an applicable exemption therefrom and pursuant to state securities Laws as applicable. The Investor(s) have sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risks of its investment in the Parent Common Stock and is capable of bearing the economic risks of such investment.

(b)                                 The Investor(s) have had an opportunity to receive all information related to the Buyer and its Affiliates requested by it and to ask questions of and receive answers from the Buyer regarding the Buyer and its Affiliates, their respective businesses and the terms and conditions of the Equity Consideration and the Notes Consideration.  Each such Investor acknowledges receipt of copies of the Buyer Parent’s filings with the SEC.

(c)                                  The Investor(s) understand that the securities to be issued as the Equity Consideration and the Notes Consideration (other than the New Notes Royalty Rights) are characterized as “restricted securities” under the U.S. federal securities Laws inasmuch as they are being acquired in a transaction not involving a public offering and that under such laws and applicable regulations such securities may be resold without registration under the Securities Act only in certain limited circumstances. It is understood that, except as provided below, certificates evidencing such securities may bear the following or any similar legend: “The securities represented hereby have not been registered with the Securities and Exchange Commission or the securities commission of any state in reliance upon an exemption from registration under the Securities Act of 1933, as amended, and, accordingly, may not be transferred unless (i) such securities have been registered for sale pursuant to the Securities Act of 1933, as amended, (ii) such securities are sold pursuant to Rule 144 or pursuant to Rule 144A promulgated under the Securities Act, as amended, or (iii) the issuer has received an opinion of counsel reasonably satisfactory to it that such transfer may lawfully be made without registration under the Securities Act of 1933, as amended; provided that no such opinion shall be required for any bona fide pledge of such securities or for an transfer to any affiliate of the holder.”

(d)                                 At the time any Investor was offered the securities compromising the Notes Consideration and the Equity Consideration, it was, and at the date hereof it is, an

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“accredited investor” as defined in Rule 501(a) under the Securities Act. No Investor is a registered broker dealer registered under Section 15(a) of the Exchange Act, or a member of the Financial Industry Regulatory Authority, Inc. (“FINRA”) or an entity engaged in the business of being a broker dealer.  Except as otherwise disclosed in writing to the Buyer on or prior to the date of this Agreement, no Investor is affiliated with any broker dealer registered under Section 15(a) of the Exchange Act, or a member of FINRA or an entity engaged in the business of being a broker dealer.

(e)                                  No Investor learned of the investment in the securities comprising the Notes Consideration or the Equity Consideration as a result of any general solicitation or general advertising.

2.23                        Buyer Representations.  Notwithstanding anything contained in this Agreement to the contrary, the Company acknowledges and agrees the Buyer is not making any representations or warranties whatsoever, express or implied, beyond those expressly given by the Buyer in Article III.

ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE BUYER

The Buyer hereby represents and warrants to the Company, except as set forth in the Buyer SEC Documents or as set forth in the disclosure letter (such letter referencing the appropriate section and paragraph numbers in this Article III; provided, however, that any disclosure under one such section or paragraph number shall be deemed to have been disclosed for all purposes of this Agreement in respect of all such other sections and paragraph numbers of this Article III to the extent that the relevance of such disclosure to such other sections and paragraph numbers is reasonably apparent from the text of such disclosure) supplied by the  Buyer to the Company on the date of this Agreement (the “Buyer Disclosure Letter”), as follows:

3.1                               Organization, Standing and Power.

(a)                                 Each of Buyer Parent and NewCo is a corporation duly organized, validly existing and in good standing under the Laws of its jurisdiction of incorporation and has all requisite corporate power and authority to own, lease and operate its properties and assets and to carry on its business as now being conducted and operated. Each of Buyer Parent and NewCo is duly qualified to do business and, where applicable as a legal concept, is in good standing as a foreign corporation in each jurisdiction in which the character of the properties it owns, operates or leases or the nature of its activities makes such qualification necessary, except for such failures, individually or in the aggregate, that would not reasonably be expected to have a material adverse effect on the ability of each of Buyer Parent and NewCo to consummate the transactions contemplated by this Agreement.

(b)                                 Each Subsidiary of Buyer Parent and the respective jurisdictions of formation or incorporation of Buyer Parent and each such Subsidiary is set forth on Schedule 3.1(b) of the Buyer Disclosure Letter. Each of Buyer Parent and each such Subsidiary (collectively, including the Buyer, the “Buyer Entities”) is an entity duly organized, validly existing and in good standing under the Laws of its jurisdiction of incorporation or formation and

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has all requisite corporate or other power and authority to own, lease and operate its properties and assets and to carry on its business as now being conducted.  Each of the Buyer Entities is duly qualified to do business and, where applicable as a legal concept, is in good standing as a foreign entity in each jurisdiction in which the character of the properties it owns, operates or leases or the nature of its activities makes such qualification necessary, except for such failures, individually or in the aggregate, that would not reasonably be expected to have a Buyer Material Adverse Effect. Except for the Subsidiaries set forth on Schedule 3.1(b) of the Buyer Disclosure Letter, Buyer Parent does not own, directly or indirectly, any outstanding securities of or other equity-related interests in any other corporation, partnership, joint venture or other Person.

3.2                               Capital Structure.

(a)                                 As of the date hereof, the authorized capital stock of the Buyer Parent consists of 275,000,000 shares of Common Stock, par value $0.001 per share, and 5,000,000 shares of Preferred Stock, par value $0.001 per share, of which, as of October 25, 2018, 56,772,101 shares of Common Stock and no shares of Preferred Stock are issued and outstanding.

(b)                                 As of the Closing Date (and, for the avoidance of doubt, after giving effect to the 13% Notes Redemption, the Convertible Note Conversions, and the transactions contemplated by the Plan and the Confirmation Order), the authorized capital stock of the Buyer Parent will consist of 275,000,000 shares of Parent Common Stock, par value $0.001 per share, and 5,000,000 shares of Preferred Stock, par value $0.001 per share.

(c)                                  As of the date hereof and as of the Closing Date (and, for the avoidance of doubt, after giving effect to the 13% Notes Redemption, the Convertible Note Conversions, and the transactions contemplated by the Plan and the Confirmation Order):

(1)                                 All of the outstanding shares of Buyer Parent capital stock have been duly authorized and validly issued and are fully paid and nonassessable and are not subject to any preemptive rights.  None of the outstanding shares of Buyer Parent capital stock were issued in violation of any Law;

(2)                                 there are no preemptive or other outstanding rights, options, warrants, conversion rights, “phantom” stock rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements, calls, commitments or rights of any kind to which the Buyer Parent is a party or by which the Buyer Parent is bound that obligate the Buyer Parent to issue or sell any shares of capital stock or other equity interests of the Buyer Parent or any securities or obligations convertible or exchangeable into or exercisable for, or giving any Person a right to subscribe for or acquire, any shares of capital stock or other equity interests of the Buyer Parent or outstanding bonds, debentures, notes or other Indebtedness of the Buyer Parent having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) with the Buyer Parent’s stockholders on any matter, and no securities or obligations evidencing such rights are authorized, issued or outstanding.  There are no outstanding contracts to which the Buyer Parent is a party requiring the repurchase,

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redemption, or other acquisition of any shares of capital stock or other equity interests of the Buyer Parent;

(3)                                 other than the Stockholders Agreement and the Registration Rights Agreement, there are no stockholder agreements, registration rights agreements, voting trusts or other contracts to which the Buyer Parent is a party with respect to the voting or registration of the capital stock or other voting or equity interests of the Buyer Parent or any preemptive rights with respect thereto;

(4)                                 Except for the capital stock and other equity interests of the other Buyer Entities, the Buyer Parent does not own, directly or indirectly, any capital stock or other equity interests in any Person. The Buyer Parent has not entered into any commitment, arrangement or other contract, or is otherwise obligated, to contribute capital, loan money or otherwise provide funds or make any investment in any other Person.

3.3                               Authority; No Conflict; Required Filings and Consents.

(a)                                 Each of Buyer Parent and NewCo has all requisite corporate power and authority to enter into this Agreement and each of the Ancillary Agreements to which it will be a party and, subject to the entry of the Confirmation Order and the occurrence of the effective date under the Plan, to consummate the transactions contemplated hereby and thereby.  The execution, delivery and performance by each of Buyer Parent and NewCo of this Agreement and each of the Ancillary Agreements to which it will be a party and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of each of Buyer Parent and NewCo.  This Agreement has been, and each such Ancillary Agreement will be, duly executed and delivered by each Buyer and this Agreement is, and each such Ancillary Agreement when so duly executed, subject to the entry of the Confirmation Order and the occurrence of the effective date under the Plan, and delivered by such party and, if applicable, the Company or one of its Subsidiaries, will be, the valid and binding obligation of the Buyer, enforceable against the Buyer in accordance with their respective terms, subject to the Bankruptcy Exceptions.

(b)                                 The execution, delivery and performance by each of Buyer Parent and NewCo of this Agreement and each of the Ancillary Agreements to which it will be a party, and the consummation by each of Buyer Parent and NewCo of the transactions contemplated hereby and thereby, shall not, (i) conflict with, or result in any violation or breach of, any provision of the governing documents of either Buyer Parent or NewCo, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any Lien, other than Permitted Liens, on or with respect to the assets of either Buyer Parent or NewCo under, any of the terms, conditions or provisions of any Buyer Material Contracts, or (iii) conflict with or violate any material permit, concession, franchise, license or Law applicable to the Buyer, its Subsidiaries or any of their respective properties or assets, with respect to the foregoing clauses (ii) and (iii), that would, individually or in the aggregate, reasonably be expected to be material

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to the Buyer and its Subsidiaries, taken as a whole, or the Buyer Business, or materially impair the ability of the Buyer to perform its obligations under, and consummate the transactions contemplated by, this Agreement.

(c)                                  No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with, any Governmental Entity (subject and after giving effect to any required approvals of the Bankruptcy Court (including, to the extent applicable, the Confirmation Order confirming the Plan) and the Plan) is required by or with respect to either Buyer Parent or NewCo in connection with the execution, delivery and performance by either Buyer Parent or NewCo of this Agreement and each of the Ancillary Agreements to which it will be a party or the consummation by either Buyer Parent or NewCo of the transactions contemplated hereby and thereby that would, individually or in the aggregate, reasonably be expected to be material to the Buyer and its Subsidiaries, taken as a whole, or the Buyer Business, or materially impair the ability of the Buyer to perform its obligations under, and consummate the transactions contemplated by, this Agreement.

3.4                               Buyer’s Assets; Transferability of Consideration.

(a)                                 The Buyer and its Subsidiaries have good and valid title to, or in the case of leased assets, valid leasehold interests in, all of its material assets, rights and properties (tangible and intangible), free and clear of all Liens, except for Permitted Liens,

(b)                                 Such assets constitute, and will at the Closing constitute, all of the assets, rights or properties (tangible or intangible) used, held for use or necessary, and are sufficient, to allow the Buyer Entities to conduct and operate the Buyer Business in all material respects in the form and manner as conducted and operated by the Buyer Entities on the date hereof and as the Buyer Business is expected to be conducted and operated on the Closing Date. There are no material assets or properties related to the conduct or operation of the Buyer Business owned by any Person other than the Buyer or the Buyer Entities that are not currently leased or licensed to the Buyer or one of the Buyer Entities under valid, current lease or license arrangements and any such lease or license arrangements have been made available to the Company for review in the due diligence data room maintained by the Buyer at least three (3) Business Days prior to the date of this Agreement. The Buyer’s assets (i) have been maintained in all material respects in accordance with normal industry practice, and (ii) are in good operating condition and repair (subject to normal wear and tear consistent with the age of such assets).

(c)                                  At the Closing, good and valid title to the Equity Consideration and the Notes Consideration will be issued to the Company or its Permitted Designees free and clear of all Liens, and will be (including any rights to receive payments thereunder) freely transferable, subject to any applicable restrictions on transferability of the Equity Consideration and the Notes Consideration under applicable securities Laws.

3.5                               Financial Information; No Undisclosed Liabilities.

(a)                                 The Buyer has delivered to the Company true and complete copies of (collectively, the “Buyer Consolidated Financial Statements”): (i) audited consolidated financial statements of the Buyer and its Subsidiaries as of and for the years ended December 31, 2017,

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2016 and 2015, and (ii) interim unaudited consolidated financial statements of the Buyer and its Subsidiaries as of and for three and six months ended on the Balance Sheet Date, and a copy of the Buyer Consolidated Financial Statements is attached hereto as Schedule 3.5 of the Buyer Disclosure Letter.  The Buyer Consolidated Financial Statements present fairly in all material respects the consolidated financial condition of the Buyer and its Subsidiaries, and results of operations and cash flows for the dates or periods indicated thereon, in accordance with GAAP applied on a consistent basis throughout the periods indicated, except as disclosed therein and, except, with respect to the interim unaudited consolidated financial statements as of and for the three and six months period ended on the Balance Sheet Date, (i) for normal year-end audit adjustments, (ii) for the omission of footnote disclosures and statements of shareholders’ equity and cash flows as required by GAAP, and (iii) for the other matters set forth on Schedule 3.5(a) of the Buyer Disclosure Letter, in each case, that are not material individually or in the aggregate.  The Buyer Consolidated Financial Statements, including the footnotes thereto, have been prepared from the books and records of the Buyer and its Subsidiaries. The Buyer’s auditors have not notified in writing (or to the Buyer’s Knowledge, orally) the Buyer, its Subsidiaries or any of their respective officers or employees of any material liabilities, reserves, changes or issues that need to be addressed in the Buyer Consolidated Financial Statements.  The books of account and other financial records of the Buyer are complete and correct in all material respects and represent actual, bona fide transactions.

(b)                                 Neither the Buyer nor any of its Subsidiaries has any liabilities or obligations (whether accrued, absolute, contingent, known, unknown or otherwise), except for (i) the liabilities to the extent reflected in the Buyer Consolidated Financial Statements, (ii) trade payables, accrued expenses and other similar liabilities incurred by the Buyer or its Subsidiaries since the Balance Sheet Date in the ordinary course of business, (iii) executory contract obligations incurred by the Buyer or its Subsidiaries in the ordinary course of business, (iv) fees and expenses (including any amounts payable to the Office of the United States Trustee) incurred in connection with this Agreement and the transactions contemplated hereby, or in the Chapter 11 Cases, (v) liabilities disclosed in the Plan and Disclosure Statement, (vi) the liabilities of the Buyer and its Subsidiaries set forth in Schedule 3.5(b) of the Buyer Disclosure Letter, and (vii) liabilities or obligations that are not, individually or in the aggregate material to the Buyer and its Subsidiaries, taken as a whole, or the Buyer Business.

(c)                                  The Buyer and its Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; (iv) the recorded accountability for inventory is compared with existing inventory at reasonable intervals and appropriate action is taken with respect to any differences and (v) the unauthorized acquisition, use or disposition of such Person’s assets that could have a material effect on the Buyer Consolidated Financial Statements is prevented or timely detected.

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3.6                               Intellectual Property.

(a)                                 Each Buyer Entity owns or otherwise has the valid and legally enforceable rights to use all Buyer Intellectual Property, which Buyer Intellectual Property is sufficient Intellectual Property to conduct and operate the Buyer Business in all material respects as currently conducted and as conducted during the twelve (12)-month period prior to the date of this Agreement.  Except as set forth in Schedule 3.6(a) of the Buyer Disclosure Letter, one of the Buyer Entities is the sole and exclusive legal and beneficial owner of, and has good title to, all of the Buyer Intellectual Property owned by a Buyer Entity, free and clear of all Liens, other than Permitted Liens, and free and clear of any requirement of any royalty payments or other payment obligations to third parties.  The Patents, Trademarks and domain names included in the Buyer Intellectual Property owned by a Buyer Entity are registered or applied for in the name of one of the Buyer Entities and, except as set forth in Schedule 3.6(a) of the Buyer Disclosure Letter, all assignments of any such Patents and Trademarks reflecting such Buyer Entity’s ownership thereof have been duly filed or recorded (as applicable) with the United States Patent and Trademark Office and all other foreign patent and trademark offices where the rights have been registered or applied for.

(b)                                 Except as set forth in Schedule 3.6(b)(i) of the Buyer Disclosure Letter, no Intellectual Property used in or related to the Buyer Business is licensed by the Buyer Entities from any third party (other than commercially available, off-the-shelf software and immaterial non-exclusive licenses obtained in the ordinary course of business).  Except as set forth in Schedule 3.6(b)(ii) of the Buyer Disclosure Letter, none of the Buyer Entities has licensed or granted any rights under or to the Buyer Intellectual Property to any third party.  For purposes of greater certainty, the term “licensed” includes any license, sublicense, covenant, non-assert, consent, release or waiver.  All registrations, issuances and applications for Patents, Trademarks and domain names included in the Buyer Intellectual Property are listed on Schedule 3.6(b)(iii) of the Buyer Disclosure Letter.  Except as set forth in Schedule 3.6(b)(iv) of the Buyer Disclosure Letter, all registrations, issuances and applications owned by the Buyer Entities (A) have been duly filed or registered (as applicable) with the applicable Governmental Entity or domain name registration authority (as applicable) and properly maintained, including without limitation the timely submission of all necessary filings and payment of fees in accordance with the legal and administrative requirements in the appropriate jurisdictions, and (B) have not lapsed or expired.  There is no response to an office action, payment requirement or other requirement with respect to the Patents, Trademarks or domain names included in the Buyer Intellectual Property that will come due in the period between January 1, 2019 and March 31, 2019.

(c)                                  To the Buyer’s Knowledge, there is no fact with respect to any patent application or trademark application comprised within the Buyer Intellectual Property (i) required to be disclosed to the United States Patent and Trademark Office on or before the date of this Agreement that was not disclosed, that would reasonably be expected to preclude the issuance of an issued patent from such patent application or a registered trademark from such trademark application or (ii) that the Buyer reasonably believes would render any issued patent issuing from such patent application or registered trademark granted from such trademark application invalid or unenforceable.  The Buyer Entities and, to the Buyer’s Knowledge, its patent counsel has complied in all material respects with applicable requirements in the filing

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and prosecution of the patents and patent applications comprised within the Buyer Intellectual Property, including its duty of candor.

(d)                                 Except as set forth in Schedule 3.6(d) of the Buyer Disclosure Letter, to the Buyer’s Knowledge, no third party is infringing or violating or misappropriating, or has infringed, violated or misappropriated, any of the Buyer Intellectual Property. None of the Buyer Entities has sent any notice to or asserted or threatened any action or claim against any Person involving or relating to any Buyer Intellectual Property.  The Buyer Entities have taken commercially reasonable measures, consistent with industry practices, to maintain in confidence all material trade secrets and material confidential information comprising a part of the Buyer Intellectual Property.

(e)                                  The conduct and operation of the Buyer Business does not infringe or violate or constitute a misappropriation, and has not infringed, violated or constituted a misappropriation, of any Intellectual Property of any third party.  Since the Reference Date, none of the Buyer Entities has received any written or, to the Buyer’s Knowledge, other claim or notice alleging any such infringement, violation or misappropriation.  There is no pending or, to the Buyer’s Knowledge, threatened, and there has been no, claim, interference, inter partes proceeding, opposition or demand of any third party challenging the ownership, use, validity or scope of any Buyer Intellectual Property owned by any Buyer Entity or to the Buyer’s Knowledge exclusively licensed to a Buyer Entity.  None of the Buyer Entities has been served with or provided written or, to the Buyer’s Knowledge, other notice that any Buyer Intellectual Property is the subject of any Order, and none of the Buyer Entities is subject to any Order barring or limiting the Buyer Entities’ use of any Buyer Intellectual Property.  None of the Buyer Entities is a party to any past, pending or, to the Buyer’s Knowledge, threatened, action, lawsuit, or any other judicial, arbitral or administrative proceeding relating to any Buyer Intellectual Property, including involving any claim that the any of the Buyer Entities infringed, misappropriated or violated the Intellectual Property rights of any third party.

(f)                                   The execution, delivery and performance of this Agreement and the Ancillary Agreements and the consummation of the transactions contemplated hereby and thereby will not result in the loss, forfeiture, termination, license, or impairment of, or give rise to any obligation to transfer or to create, change or abolish, or limit, terminate, or consent to the continued use by the Buyer Entities of any rights in any Buyer Intellectual Property.

(g)                                  No current or former employee, officer, director, stockholder, consultant or independent contractor of the Buyer Entities has any right, title, claim or interest in, to or under any Buyer Intellectual Property owned by any Buyer Entity that has not been exclusively assigned and transferred to one of the Buyer Entities, and each current and former employee, officer, director, stockholder, consultant or independent contractor who is or was involved in the development of any Intellectual Property rights used in or related to the conduct or operation of the Buyer Business has executed a written assignment agreement with one of the Buyer Entities assigning, to the fullest extent permissible under applicable Law, all of such person’s right, title and interest in and to such Intellectual Property rights to such Buyer Entity, which assignment includes a present tense assignment of all current and future Intellectual Property rights.

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(h)                                 No Buyer Intellectual Property owned by a Buyer Entity was developed, in whole or in part, under contract with or using the facilities, funding or personnel of any Governmental Entity or university or other educational institution that would give any such authority, university or institution any rights to such Buyer Intellectual Property or entitle any such Governmental Entity, university or institution to royalties or other payments.

(i)                                     The Buyer Entities are in compliance in all material respects with all applicable Laws, contractual commitments and published privacy policies relating to the privacy of patient medical records and all other personal information and data, including with respect to the collection, storage, use, sharing, transfer, disposition, protection and processing thereof.  None of the Buyer Entities has received any notification or allegation from any competent authority (including any information or enforcement notice, or any transfer prohibition notice) alleging that the Buyer Entities have not complied in any material respect with applicable Laws relating to privacy and/or data protection. No individual has successfully claimed, and (to the Buyer’s Knowledge) no grounds exist for an individual to claim, compensation from the Buyer Entities for material breaches of applicable data protections law or for loss or unauthorized disclosure of personal information and data.

3.7                                     Contracts.

(a)                                 The Buyer SEC Documents list all material contracts as of the date hereof to which each Buyer Entity is a party or by which each Buyer Entity or any of their respective material properties or assets is bound or affected, in any case, other than the Buyer Benefit Plans (the “Buyer Material Contracts”).

(b)                                 Correct and complete copies of each Buyer Material Contract (including all modifications, amendments and supplements thereto) have been delivered to the Company or its advisors (and with respect to Buyer Material Contracts that are in oral form, the Buyer has provided the Company with a written summary of the terms of such contract).

(c)                                  Each of the Buyer Material Contracts represents a valid and binding obligation of the Buyer Entities party thereto and, to the Buyer’s Knowledge, each other party thereto, and is enforceable against the Buyer Entities and, to the Buyer’s Knowledge, each other party thereto, in accordance with its terms, and is in full force and effect, subject to the Bankruptcy Exceptions. Each of the Buyer Material Contracts shall continue to be in full force and effect and valid, binding and enforceable on substantially the same terms immediately following the consummation of the transactions contemplated hereby, subject to the Bankruptcy Exceptions.  None of the Buyer Entities or, to the Buyer’s Knowledge, any other party thereto is in material breach or material violation of or material default under, or has provided or received any written notice of any intention to terminate, any of the Buyer Material Contracts, or has committed or failed to perform any act which, with or without notice, lapse of time or both would constitute a material breach or material violation of or material default under any of the Buyer Material Contracts.

3.8                               Litigation.  Except as set forth on Schedule 3.8 of the Buyer Disclosure Letter, there is no Action pending against the Buyer Entities and, to the Buyer’s Knowledge, no Action has been threatened against the Buyer Entities that would, individually or in the aggregate,

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reasonably be expected to be material to the Buyer and its Subsidiaries, taken as a whole, or Buyer Business, or materially impair the ability of the Buyer to perform its obligations under, and consummate the transactions contemplated by, this Agreement.  As of the date hereof, there are no Court Orders (whether rendered by a court, an administrative agency or by an arbitrator) to which the Buyer Entities or their assets are subject that are material to the Buyer Entities, taken as a whole that would, individually or in the aggregate, reasonably be expected to be material to the Buyer and its Subsidiaries, taken as a whole, or the Buyer Business, or materially impair the ability of the Buyer to perform its obligations under, and consummate the transactions contemplated by, this Agreement.

3.9                               Compliance with Laws; Permits. The Buyer Entities’ conduct and operation of the Buyer Business and ownership and use of their assets are, and since the Reference Date have been, in compliance in all material respects with all applicable Laws.  Since the Reference Date, none of the Buyer Entities have received any written notice of any Action against it alleging any failure to comply in any material respect with any applicable Law.  No material investigation or audit by any Governmental Entity with respect to the conduct and operation of the Buyer Business or the Buyer Entities’ assets is pending or, to the Buyer’s Knowledge, has been threatened, and since the Reference Date, none of the Buyer Entities have received any written notice of any such investigation or audit. The Buyer has made available to the Company complete and correct copies of all written notices received by the Buyer Entities alleging any material failure to comply under any applicable Law, or with respect to any investigation by any Governmental Entity, in each case, since the Reference Date. The Buyer Entities own or possess all right, title and interest in and to, and are and since the Reference Date, has been in compliance with, all Permits necessary or required in connection with the conduct and operation of the Buyer Business, except as would not reasonably be expected, individually or in the aggregate, to materially and adversely affect the Buyer Business. All such Permits that are material to the Buyer Entities, taken as a whole, or the Buyer Business are set forth on Schedule 3.9 of the Buyer Disclosure Letter, each of which is valid and in full force and effect and none of such Permits is (to the Buyer’s Knowledge) expected to be terminated, impaired or require amendment, or to become terminable, impaired or require amendment, in whole or in part, as a result of or in connection with the consummation of the transactions contemplated by this Agreement.  The Buyer has delivered to the Company true and complete copies of all such Permits. None of the Buyer Entities have received any written communication since the Reference Date from any Governmental Entity or other entity having jurisdiction over the Buyer Entities or their respective licensees regarding (i) any actual or alleged material violation of any such Permit or any failure to comply with any term or requirement of any such Permit, or (ii) any actual, alleged or proposed revocation, withdrawal, suspension, cancellation, termination or modification of any such Permit, and, to the  Buyer’s Knowledge, there is no reasonable basis for the issuance of any such notice or the taking of any such action. There is no actual, nor to the Buyer’s Knowledge, threatened investigation, inquiry or administrative or judicial action, hearing or enforcement proceeding by any Governmental Entity against the Buyer Entities or their respective licensees regarding any violation of any such Permit that if determined adversely to any Buyer Entity would be material to the Buyer Business. All fees and charges with respect to the Permits have been timely paid in full since the Reference Date, except as would not reasonably be expected, individually or in the aggregate, to materially and adversely affect the Buyer Business.

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3.10                        Regulatory Authorizations.  The Buyer Entities have all Regulatory Authorizations necessary for the Buyer Entities to conduct and operate the Buyer Business in all material respects in the manner currently conducted (the “Buyer Regulatory Authorizations”).  The Buyer Entities are in compliance with the terms of the Buyer Regulatory Authorizations, except as would not reasonably be expected, individually or in the aggregate, to materially and adversely affect the Buyer Business, and have not received any notices that it is in violation of any of the terms or conditions of such Buyer Regulatory Authorizations.  All such Buyer Regulatory Authorizations are in full force and effect and no action or claim is pending or, to the Buyer’s Knowledge, threatened to revoke, suspend, adversely modify or terminate any such Buyer Regulatory Authorizations or declare any such Buyer Regulatory Authorizations invalid in any material respect. To the Buyer’s Knowledge, no event has occurred that would reasonably be expected to result in the suspension, limitation, revocation or rescission, cancellation, non-renewal, or adverse modification of any of the Buyer Regulatory Authorizations.

3.11                        Product Liability.

(a)                                 Schedule 3.11 of the Buyer Disclosure Letter sets forth a true and complete list of all Buyer Product Registrations as of the date hereof.  For purposes of this Agreement, “Buyer Product Registrations” means all material marketing approvals, clearances or other authorizations necessary to conduct and operate the Buyer Business and granted to any of the Buyer Entities by, or pending with, any Governmental Entity.

(b)                                 All Buyer Products sold under the Buyer Product Registrations are Exploited in accordance with the specifications and standards contained in such Buyer Product Registrations, except where the failure to comply therewith would not reasonably be expected, individually or in the aggregate, to materially and adversely affect the Buyer Business.

(c)                                  To the Buyer’s Knowledge, except as would not reasonably be expected, individually or in the aggregate, to materially and adversely affect the Buyer Business, each Buyer Product is free of and does not contain any defect in the design or formulation, or any defect resulting from, arising from, or in connection with, the Exploitation of such Buyer Product.

(d)                                 Since the Reference Date, except as would not reasonably be expected, individually or in the aggregate, to materially and adversely affect the Buyer Business, (i) there has not been, nor is there currently under consideration by the Buyer Entities, or to the Buyer’s Knowledge, any Governmental Entity, any product recall, market withdrawal, post-sale warning, or other corrective action in respect of the Buyer Products, and (ii) no Buyer Product distributed or sold prior to the date hereof has been discontinued (whether voluntarily or otherwise) by the Buyer Entities due to concerns over potential harm to human health or safety.

(e)                                  Except as would not reasonably be expected, individually or in the aggregate, to materially and adversely affect the Buyer Business, no product liability claims have been received in writing by the Buyer Entities regarding the Buyer Products, and there is no pending or, to the Buyer’s Knowledge, threatened claim against the Buyer Entities with respect to the quality, merchantability, or safety of or defect in, or involving a breach of warranty which has not been fully resolved with respect to, or involving liability directly or indirectly caused by

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the Buyer Products that would reasonably be expected to have a Buyer Material Adverse Effect. To the Buyer’s Knowledge, no such claims have been threatened against the Buyer Entities as of the date hereof. As of the date hereof, there is no Order outstanding against the Buyer Entities relating to product liability claims. To the Buyer’s Knowledge, there are no design, manufacturing or other defects, latent or otherwise, with respect to the Buyer Products.

3.12                        Regulatory Matters.

(a)                                 Schedule 3.12(a) of the Buyer Disclosure Letter sets forth a true and complete list as of the date hereof of all of the Buyer Products, including the dosage form, active ingredient and strength of each such Buyer Product. In respect of the Buyer Products, Schedule 3.12(a) of the Buyer Disclosure Letter sets forth (i) a description of the regulatory status thereof (as of the date hereof), including the pending or approved NDAs or ANDAs that any of the Buyer Entities has submitted to the FDA in respect of such Buyer Products (collectively, “Buyer Filed NDAs”); and (ii) whether the particular regulatory status has been presented to the FDA or any other Governmental Entity under the name of one of the Buyer Entities, or under the name of another Person. Copies of the Buyer Filed NDAs and any other material filings or submissions made by the Buyer Entities with the FDA or any other Governmental Entity (1) were reviewed before filing by an employee or other agent of one of the Buyer Entities who is knowledgeable about the contents of the filing and, were true and accurate in all material respects when filed (subject to correction, amendment or supplementation by subsequent filings as required by the FDA or other Governmental Entity), and were made in good faith upon the best information reasonably available to the Buyer Entities; and (2) have been made available to the Company upon its request.

(b)                                 Except as set forth in Schedule 3.12(b) of the Buyer Disclosure Letter, the conduct and operation of the Buyer Business is, and at all times since the Reference Date has been, in compliance in all material respects with the FDC Act, and applicable regulations issued by the FDA and all other applicable Laws, including any regulatory Laws of any applicable non-U.S. jurisdiction, and in all material respects with all reporting requirements under the FDC Act, the Controlled Substances Act, as amended, the associated rules and regulations promulgated thereunder and all other applicable Laws. Without limiting the generality of the foregoing, except as set forth in Schedule 3.12(b) of the Buyer Disclosure Letter, (i) the Buyer Entities have obtained all material clearances, authorizations, licenses and registrations required by any Governmental Entity (including, without limitation, the FDA, DEA or any other Governmental Entity, domestic or foreign, performing functions similar to those performed by the FDA or DEA) to permit the conduct of the Buyer Business as currently conducted, (ii) the Buyer Entities have filed with each applicable Governmental Entity (including, without limitation, the FDA, DEA or any other Governmental Entity, domestic or foreign, performing functions similar to those performed by the FDA or DEA) all material, required filings, declarations, listings, registrations, reports or submissions, including but not limited to Adverse Event reports and all manufacturing changes to the Buyer Products, (iii) complete and correct copies of all such documents referred to in the immediately preceding clause (ii) have been delivered to the Company and (iv) all such filings, declarations, listings, registrations, reports or submissions were in compliance in all material respects with applicable Laws when filed, or subsequently corrected, and no deficiencies have been asserted by any applicable Governmental Entity to the

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Buyer Entities with respect to any such filings, declarations, listing, registrations, reports or submissions.

(c)                                  Each Buyer Product is being, and has been for the past three (3) years, researched, developed, tested, manufactured, supplied, distributed, and stored by or on behalf of the Buyer Entities in compliance in all material respects with the FDC Act, the Controlled Substances Act, as amended, and the associated rules and regulations promulgated thereunder, including, as applicable, those requirements relating to the FDA’s current Good Manufacturing Practices, Good Laboratory Practices and Good Clinical Practices, all filings, declarations, listings, registrations, reports or submissions of the Buyer or its Subsidiaries to Governmental Entities relating to such Buyer Product (including with respect to all Buyer Product specifications), and all other applicable Laws, including any rules and regulations of any other Governmental Entity, domestic or foreign, performing functions similar to those performed by the FDA or DEA.

(d)                                 All preclinical studies and clinical trials sponsored by the Buyer Entities have been conducted in material compliance with applicable Laws, rules and regulations and Good Clinical Practices, and federal and state Laws, rules and regulations, including, all applicable security laws and privacy standards restricting the use and disclosure of individually identifiable health information.  Scientific reports of such investigations have been, or will be, drafted in all material respects according to applicable requirements and raw data adequately archived and available for inspection by the applicable Governmental Entities. None of the Buyer Entities has received any written notices or other correspondence from the FDA or any other foreign, federal, state or local Governmental Entity performing functions similar to those performed by the FDA with respect to (i) requiring the termination, suspension or material modification of ongoing clinical trials or pre-clinical studies, (ii) adverse inspection reports, (iii) notices of adverse findings, warning letters, untitled letters or (iv) other correspondence asserting that the Buyer Entities may not be in compliance with applicable Laws or that the Buyer Products or any compounds contained in the Buyer Products may not be approvable.

(e)                                  Since the Reference Date, none of the Buyer Entities has been subject to any investigation related to the Buyer Products or the conduct and operation of the Buyer Business that is pending and of which the Buyer Entities has been notified in writing or which (to the Buyer’s Knowledge) has been threatened, in each case by any Governmental Entity pursuant to the Medicaid rebate law (42 U.S.C. § 1396r-8), the Veterans Health Care Act of 1992, the Federal Healthcare Program Anti-Kickback Statute (42 U.S.C. §1320a-7b(b), the Federal False Claims Act (31 U.S.C. §3729) or any similar anti-kickback or false claims statutes applicable to the Buyer Entities.  Since the Reference Date, none of the Buyer Entities has submitted any claim for payment to any government healthcare program in connection with any referrals related to the Buyer Products that violated in any material respect any applicable self-referral Law.  Since the Reference Date, none of the Buyer Entities has submitted any claim for payment to any government healthcare program related to the Buyer Products in material violation of any Laws relating to false claim or fraud.

(f)                                   Since the Reference Date, neither the Buyer Entities nor, to the Buyer’s Knowledge, any of the Representatives acting on behalf of the Buyer Entities has been under investigation for, nor has (i) made an untrue statement of material fact or fraudulent statement to

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any Governmental Entity, failed to disclose a material fact required to be disclosed to any Governmental Entity, or committed an act, made a statement, or failed to make a statement, including with respect to any scientific data or information, that, at the time such disclosure was made or failure to disclose occurred, would reasonably be expected to provide a basis for the Governmental Entity to invoke the FDA policy respecting “Fraud, Untrue Statements of Material Facts, Bribery and Illegal Gratuities,” set forth in 56 Fed. Reg. 46191 (September 10, 1991), in each case as related to the Buyer Products or the conduct or operation of the Buyer Business, (ii) been convicted of any crime or engaged in any conduct for which disqualification, exclusion or similar action is authorized by a Governmental Entity in relation to the development or approval of any pharmaceutical product, including for which debarment is mandated by 21 U.S.C. § 335a(a) or authorized by 21 U.S.C. § 335a(b) or (iii) been convicted of any crime or engaged in any conduct for which such Person or entity could be excluded from participating in the Federal health care programs under Section 1128 of the Social Security Act of 1935, as amended.

(g)                                  Since the Reference Date, none of the Buyer Entities have voluntarily or involuntarily initiated, conducted or issued, or caused to be initiated, conducted or issued, any recall, field alerts, field corrections, market withdrawal, safety alert or warning, “dear doctor” letter, investigator notice or other material notice or action relating to an alleged lack of safety, efficacy or regulatory compliance of the Buyer Products.  None of the Buyer Entities has knowledge of any facts that are reasonably likely to cause (i) the recall, market withdrawal or replacement of any Buyer Product, (ii) a material change in the marketing classification or a material change in the labeling of any Buyer Product, or (iii) a termination or suspension of the marketing of any Buyer Product.  Since the Reference Date, none of the Buyer Entities has received any written notice that any Governmental Entity has: (1) commenced, or threatened to initiate, any action to request the recall of any Buyer Product; (2) commenced, or threatened to initiate, any action to enjoin the manufacture or distribution of any Buyer Product; (3) issued any demand letter, finding of material deficiency or non-compliance or adverse inspection report (including any FDA Form 483s, FDA Notices of Adverse Findings, Untitled Letters, or Warning Letters) in respect of any Buyer Product; or (4) commenced, or threatened to initiate, any action regarding inappropriate advertising or marketing of any Buyer Product, nor to the Buyer’s Knowledge do any conditions currently exist that reasonably could be expected to lead to any of the foregoing.

(h)                                 The Buyer has delivered to the Company complete and correct copies of all material scientific, CMC (including any supply chain risk assessments), preclinical, and clinical data of the Buyer Entities, all material non-clinical and safety risk assessments, and all material written correspondence with all Governmental Entities, in each case with respect to any Buyer Product.

3.13                        Taxes.

(a)                                 There are no Liens with respect to Taxes upon any of the assets of the Buyer Entities other than Permitted Liens.

(b)                                 The Buyer Entities have timely filed all federal and state income and all other material Tax Returns in respect of the assets of the Buyer Entities and the conduct or operation of the Buyer Business with respect to any period ending on or prior to the Closing Date

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that such Buyer Entity was required to file.  All such Tax Returns are true, correct and complete in all material respects.

(c)                                  The Buyer Entities have paid all income and other material Taxes in respect of the assets of the Buyer Entities and the conduct and operation of the Buyer Business.

(d)                                 The Buyer Entities have withheld and collected all material Taxes that any Buyer Entity was or is required by applicable Law to withhold and collect in respect of the assets of the Buyer Entities and the conduct and operation of the Buyer Business, and all such Taxes have been paid over to the proper Taxing Authority or, if not yet due, are being held by the Buyer Entities for payment.

(e)                                  No Tax audits or other legal proceedings are pending, or to Buyer’s Knowledge, threatened, in each case, with regard to any Taxes or Tax Returns of the Buyer Entities in respect of the assets of the Buyer Entities and the conduct and operation of the Buyer Business.  None of the Buyer Entities has requested or obtained any extension of time within which to file any Tax Return in respect of the assets of the Buyer Entities and the conduct and operation of the Buyer Business or in which any Tax may be assessed or collected by any Taxing Authority (other than any extension which is no longer in effect).

(f)                                   No Taxing Authority with which the Buyer Entities do not file a particular Tax Return in respect of the assets of the Buyer Entities and the conduct and operation of the Buyer Business has claimed that any of the Buyer Entities is or may be subject to taxation by that Taxing Authority. None of the Buyer Entities, in respect of the assets of the Buyer Entities and the conduct and operation of the Buyer Business, is engaged in (or is treated as engaged in due to prior activities) a trade or business through a “permanent establishment” within the meaning of an applicable income Tax treaty in any jurisdiction other than the jurisdiction in which they are formed.

(g)                                  None of the Buyer Entities is a United States a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code.

(h)                                 None of the assets of the Buyer Entities is (i) an equity interest in any person (or treated as any equity interest in any person for U.S. federal income tax purposes) or (ii) tax-exempt use property within the meaning of Section 168(g) of the Code.

(i)                                     The Buyer Entities have collected and remitted any material sales, use, value added and similar Taxes applicable in connection with the assets of the Buyer Entities and the conduct and operation of the Buyer Business.

(j)                                    The Company and its Subsidiaries will not be required to include any material item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) beginning after the Closing, including as a result of any (A) change in method of accounting or use of an improper method of accounting, in each case, by the Buyer or any of its Subsidiaries, (B) prepaid amount received by the Buyer or any of its Subsidiaries prior to the Closing or (C) an installment sale or open transaction disposition made on or prior to the Closing Date.

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(k)                                 No Buyer Entity has made an election under Section 965(h) of the Code.

(l)                                     Neither the execution of, nor the consummation of the transactions contemplated by this Agreement (either alone or when combined with the occurrence of any other event, including without limitation, a termination of employment) will result in the receipt or retention by any person who is a “disqualified individual” (within the meaning of Code Section 280G) of the Buyer or any of its Subsidiaries of any payment or benefit from the Buyer or any of its Subsidiaries that is or could be characterized as a “parachute payment” (within the meaning of Code Section 280G), determined without regard to the application of Code Section 280G(b)(5).

3.14                        Suppliers and Wholesalers.  Schedule 3.14 of the Buyer Disclosure Letter sets forth as of the date hereof (a) a true and complete list of the top suppliers of the Buyer Business for the nine (9) months ended September 30, 2018 based on the total dollar value of purchases from each supplier (the “Buyer Material Suppliers”) and (b) a true and complete list of the top wholesalers of the Buyer Business for the nine (9) months ended September 30, 2018 based on the total dollar value of sales to each customer (the “Buyer Material Wholesalers”).  Except as would not be reasonably expected, individually or in the aggregate, to be material to the Buyer Entities, taken as a whole, the Buyer Entities’ relationships with the Buyer Material Suppliers and Buyer Material Wholesalers are good commercial working relationships and, with respect to such Buyer Material Suppliers and Buyer Material Wholesalers, (a) during the last twelve (12) months, none has, to the Buyer’s Knowledge, threatened to cancel or otherwise terminate, or provided notice to any of the Buyer Entities that it intends to cancel or otherwise terminate, the relationship of such Person with the Buyer Entities and (b) none has, during the last twelve (12) months, decreased materially or, to the Buyer’s Knowledge, threatened to decrease or limit materially, or provided notice to any of the Buyer Entities that it intends to modify materially in an adverse manner its relationship with the Buyer Entities, or provided notice to any of the Buyer Entities that it intends to decrease or limit materially its services or supplies to any of the Buyer Entities in connection with the conduct and operation of the Buyer Business.

3.15                        Affiliate Transactions.  Except as set forth on Schedule 3.15 of the Buyer Disclosure Letter, within the twelve (12) month period immediately preceding the date hereof, no officer or director of any Buyer Entity, any immediate family member of any of the foregoing, or, to the Buyer’s Knowledge, current or former stockholder of Buyer Parent: (a) is a party to or otherwise directly or indirectly interested in any Buyer Material Contract, (b) has any interest in any of the Buyer Entities’ assets (other than any indirectly through equity ownership in Buyer Parent), or (c) to the Buyer’s Knowledge, has, directly or indirectly, any ownership, participation, royalty, or other interest in, or is an officer, director, employee or consultant or contractor of, any Person that competes with, does business with, or has any contractual arrangement with the Buyer Entities, except in the case of (a) and (b), salaries, expense reimbursement and employee benefits in respect of employment with, or service as an officer or director of a Buyer Entity (in such Person’s capacity as such).

3.16                        Absence of Certain Developments.  Except as required or permitted by this Agreement or by any of the Ancillary Agreements or as set forth on Schedule 3.16 of the Buyer Disclosure Letter, since December 31, 2017, (a) the Buyer Entities have operated and conducted the Buyer Business in the ordinary course of business consistent with past practice, and there has

49

not occurred any event or events that, individually or in the aggregate, have had, or would reasonably be expected to have, a Buyer Material Adverse Effect; and (b) none of the Buyer Entities has taken any action that would require consent of the Company under Section 4.10 between the date hereof and the Closing.

3.17                        Environmental Matters. Except as would not be reasonably expected, individually or in the aggregate, to have a Buyer Material Adverse Effect, the Buyer Entities’ conduct and operation of the Buyer Business are not in violation of any Environmental Laws.  Except as would not be reasonably expected, individually or in the aggregate, to have a Buyer Material Adverse Effect, the Buyer Entities have and are in material compliance with all Permits required pursuant to Environmental Laws with respect to the conduct and operation of the Buyer Business, each of which is valid and in full force and effect. With respect to the conduct and operation of the Buyer Business, none of the Buyer Entities has received any unresolved written notice from any Governmental Entity or any other Person (a) regarding any actual or alleged material violation of Environmental Laws, or any actual or potential material liabilities (including, for personal injury, property damage or investigatory or cleanup obligations) arising under Environmental Laws or (b) any written request for information, notice of claim, demand or notification that any of them may be potentially responsible for any material investigatory, corrective or remedial obligations with respect to any release of or exposure to Hazardous Substances under any Environmental Laws.

3.18                        Certain Business Practices.

(a)                                 None of the Buyer Entities or any of their respective officers, directors or employees or to Buyer’s Knowledge, the Buyer Entities’ respective Representatives acting on their behalf, have directly or indirectly made or authorized any offer, gift, payment, or transfer, or promise of, any money or anything else of value, or provided any benefit, to any Person, (i) for the purpose of (A) influencing any act or decision of that Person, (B) inducing that Person to omit to do any act in violation of any duty under Law, (C) securing any improper advantage, or (D) inducing that Person to use his or her influence with a Governmental Entity or public international organization, (1) to affect or influence any act or decision of any Governmental Entity or public international organization, or (2) to assist the Buyer Entities in obtaining or retaining business, or directing business to any Person, whether or not lawful, or (ii) which would otherwise constitute or have the purpose or effect of public or commercial bribery, acceptance of or acquiescence in extortion, kickbacks or other unlawful or improper means of obtaining business or any improper advantage.

(b)                                 The Buyer is familiar with the FCPA, and the Buyer Entities and, to Buyer’s Knowledge, each of their respective Representatives acting on behalf of any Buyer Entity, are in full compliance with the FCPA, and any other applicable Law of similar effect, including all Anti-Corruption Laws, and to the Buyer’s Knowledge none of them have taken any action which would cause the Buyer Entities to be in violation of any Anti-Corruption Law.

(c)                                  No portion of any assets transferred or payments paid by the Company to the Buyer (or its designees) will be used to fund payments in connection with securing government approvals or as a payment, gift, promise to give, or authorization of the giving of anything of value to any government official, political party or official thereof or any candidate

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for foreign political office for purposes of (i) influencing any act or decision of such government official in his official capacity, (ii) inducing such government official to do or omit to do any act in violation of the lawful duty of such official, or (iii) securing any improper advantage; or inducing such official to use his influence with a government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality.

(d)                                 The Buyer Entities have at all times complied with, and are currently in compliance with, all applicable International Trade Laws.

(e)                                  None of the Buyer Entities, any of their respective officers, directors or employees, or to the Buyer’s Knowledge, any of the Buyer Entities’ respective Representatives acting on their behalf, have been investigated for, or charged by any Governmental Entity with a material violation of any Anti-Corruption Laws or International Trade Laws, and there are not now, nor have there been in the past five (5) years, any claims, allegations, or inquiries pending or, to Buyer’s Knowledge, threatened against the Buyer Entities or any of their respective Representatives acting on behalf of the Buyer Entities concerning violations of any Anti-Corruption Laws or International Trade Laws.

(f)                                   The Buyer Entities maintain a system of internal accounting controls designed to provide reasonable assurances that: (i) transactions are executed and access to assets is permitted only in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles or any other criteria applicable to such statements and to maintain accountability for assets; and (iii) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.

(g)                                  The term “Representatives,” as used in this Section 3.18 shall be deemed to include any distributor of Buyer Product in the Buyer Business.

3.19                        Brokers.  Other than as set forth on Schedule 3.19 of the Buyer Disclosure Letter, no agent, broker, investment banker, financial advisor or other firm or Person is or shall be entitled, directly or indirectly, as a result of any action, agreement or commitment of the Buyer Entities or any of their respective Affiliates, to any broker’s, finder’s, financial advisor’s or other similar fee or commission in connection with any of the transactions contemplated by this Agreement.

3.20                        Employees and Employment Matters.

(a)                                 None of the Buyer Entities is a party to, or bound by, any collective bargaining or other contract with a labor union, labor organization, works council, or other similar employee representative body, and there are no labor unions, labor organizations, works councils, or other similar employee representative bodies representing, purporting to represent or, to the Buyer’s Knowledge, attempting to represent any Buyer Employee. There is not currently, nor since the Reference Date has there been, nor to the Buyer’s Knowledge has there been any threat since the Reference Date of, any strike, slowdown, work stoppage, lockout, concerted refusal to work overtime, union election petition, demand for recognition, or other

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similar labor activity or dispute, or unfair labor practice charge, complaint, labor grievance or labor arbitration, against the Buyer Entities.  None of the transactions contemplated by this Agreement require any Buyer Entity to provide any notification or consultation with any labor union, labor organization, works council or other similar employee representative body.

(b)                                 Copies of all written material employment agreements, consulting agreements and independent contractor agreements or arrangements have been provided to the Company (to the extent not included in the Buyer SEC Documents).  To the Buyer’s Knowledge, the activities of the Buyer Employees with respect to the Buyer Business do not conflict with or constitute, and have not conflicted with or constituted, a breach of the terms of any employment agreement, consulting agreement, independent contractor agreement, intellectual property disclosure agreement, restrictive covenant agreement, or other agreement or obligation under which such Buyer Employee is bound or obligated, and none of the Buyer Entities has received or is aware of any allegation to such effect.

(c)                                  Except as set forth in Schedule 3.20(c) of the Buyer Disclosure Letter, there are no material Actions against the Buyer Entities pending, or to the Buyer’s Knowledge, threatened to be brought or filed, by or with any Governmental Entity or arbitrator in connection with the employment or engagement of any current or former employee, consultant or independent contractor of the Buyer Business, including, without limitation, any material claim relating to unfair labor practices, employment discrimination, harassment, retaliation, equal pay, misclassification, wages and hours, or any other employment-related matter arising under applicable Laws.

3.21                        Buyer Benefit Plans.

(a)                                 Set forth on Schedule 3.21(a) of the Buyer Disclosure Letter is a true and complete list of each material “Buyer Benefit Plan”.  For purposes of this Agreement, “Buyer Benefit Plan” means each (i) “employee benefit plan,” as defined in Section 3(3) of ERISA and (ii) other pension, retirement, deferred compensation, excess benefit, profit sharing, bonus, incentive, equity or equity-based, phantom equity, employment, consulting, severance, change-of-control, retention, health, life, disability, paid-time off, holiday, welfare and fringe benefit plan, program, contract, or arrangement (whether written or unwritten), in any case, maintained, contributed to, or required to be contributed to, by the Buyer Parent or any of its ERISA Affiliates for the benefit of any current or former employee, director, officer or consultant (who is a natural person) of the Buyer Parent or any of its Subsidiaries or with respect to which the Buyer Parent or any of its Subsidiaries has any liability.

(b)                                 As applicable with respect to each material Buyer Benefit Plan, the Buyer has made available to the Company, true and complete copies of (i) each material Buyer Benefit Plan, including all amendments thereto, and in the case of an unwritten material Buyer Benefit Plan, a written description thereof, (ii) the current summary plan description and (iii) the determination, opinion or advisory letter, if any, with respect to such Buyer Benefit Plan.

(c)                                  Each Buyer Benefit Plan has been maintained, operated and administered in compliance in all material respects with its terms and any related documents or agreements and the applicable provisions of ERISA, the Code and all other Laws.

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(d)                                 None of the Buyer Parent or any of its ERISA Affiliates maintains, contributes to, is required to contribute to, or has any actual or contingent liability with respect to, (i) any “employee pension benefit plan” (within the meaning of Section 3(2) of ERISA) that is subject to Title IV or Section 302 of ERISA or Section 412 of the Code, (ii) any “multiemployer plan” (within the meaning of Section 3(37) of ERISA), (iii) any “multiple employer plan” (within the meaning of Section 413 of the Code) or (iv) any “multiple employer welfare arrangement” (within the meaning of Section 3(40) of ERISA).

(e)                                  No Buyer Benefit Plan provides death, medical, dental, vision or life insurance benefits beyond termination of service or retirement other than coverage mandated by applicable Law.

(f)                                   Neither the execution of, nor the performance of the transactions contemplated by, this Agreement will either alone or in connection with any other event(s) (A) result in any payment becoming due to any current or former employee, director, officer, or consultant (who is a natural person) of the Buyer Entities, (B) increase any amount of compensation or benefits otherwise payable under any Buyer Benefit Plan, (C) result in the acceleration of the time of payment, funding or vesting of any benefits under any Buyer Benefit Plan, or (D) require any contribution or payment to fund any obligation under any Buyer Benefit Plan.

3.22                        Inventory.  All of the Buyer Entities’ inventory consist of quality and quantity usable and, with respect to finished goods, salable, in the ordinary course of the Buyer Business, except for obsolete items and items of below-standard quality which have been written off or written down to fair market value.

3.23                        Company Representations.  Notwithstanding anything contained in this Agreement to the contrary, the Buyer acknowledges and agrees the Company is not making any representations or warranties whatsoever, express or implied, beyond those expressly given by the Company in Article II.

ARTICLE IV
ADDITIONAL AGREEMENTS

4.1                               Confidentiality; Public Announcements.

(a)                                 From and after the Closing Date, the Company, on the one hand, and the Buyer, on the other hand, shall, and shall cause their respective Subsidiaries and Representatives to, treat and hold as confidential, and not use or disclose any non-public or confidential information relating to their respective business operations (with respect to each party, the “Confidential Information”) to any Person (including any Affiliates), except that the party in receipt (such party, the “Receiving Party”) of Confidential Information of the other party (such party, the “Disclosing Party”) shall not be bound by the confidentiality requirements of this Section 4.1 with respect to information or documents which (i) are or become generally known to the public other than as a result of a disclosure by the Receiving Party, such Receiving Party’s Subsidiaries or any of their respective Affiliates or Representatives, (ii) to the extent required to be disclosed by applicable Law or in any legal proceeding, interrogatory, subpoena, civil

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investigative demand or similar process or to the extent required by Law including, without limitation, the Securities Act or the Exchange Act and related regulations and interpretations thereof or (iii) to the extent necessary for the Receiving Party (x) to pursue its rights under this Agreement or the Ancillary Agreements or (y) to defend itself in any action involving the Business, the Transferred Assets, the Assumed Liabilities or the transactions contemplated therein; provided; however, that, in the event that the Receiving Party or its Subsidiaries or Representatives are required to disclose any Confidential Information of the Disclosing Party pursuant to clause (ii) above, such Confidential Information shall not be used for any other purpose and the Receiving Party will (x) first notify the Disclosing Party promptly of such requirement, to the extent permitted by applicable Law, so that the Disclosing Party may seek, at its expense, an appropriate protective order or waive compliance with the provisions of this Section 4.1, (y) inform the Disclosing Party of all relevant facts relating to such a disclosure and shall provide such opportunity as is reasonable in the circumstances for the Disclosing Party to object to, or limit, such disclosure and will provide reasonable assistance to the Disclosing Party (at the Disclosing Party’s expense) in seeking to prevent or limit such disclosure (provided that no such act by the Disclosing Party to object to or limit, or assistance of the Receiving Party or its Subsidiaries requested by the Disclosing Party, shall interfere with, delay or hinder the Receiving Party’s obligations under applicable Law) and (z) only disclose such portion of such Confidential Information as is required, in the opinion of counsel (including internal counsel), to be disclosed pursuant to applicable Law.  If, in the absence of a protective order or the receipt of a waiver hereunder, the Receiving Party or one of its Subsidiaries is compelled to disclose any Confidential Information or else stand liable for contempt, such Persons may disclose the Confidential Information; provided, however, that the Receiving Party and its Subsidiaries shall (x) use their commercially reasonable efforts to obtain, at the request, and at the expense of the Disclosing Party, an order or other assurance that confidential treatment will be accorded to such portion of the Confidential Information required to be disclosed as the Disclosing Party shall designate and (y) only disclose such portion of such Confidential Information as is required, in the opinion of counsel (including internal counsel), to be disclosed pursuant to applicable Law.  For clarity, any non-public or confidential information with respect to the Business, the Transferred Assets or the Assumed Liabilities shall be deemed to be Confidential Information of the Buyer and not of the Company.

4.2                               Access to Information.

(a)                                 From the date hereof until the earlier of the Closing or the termination of this Agreement in accordance with Article VII (the “Pre-Closing Period”), the parties shall, and shall cause their Subsidiaries, and each of their respective Representatives to, (i) provide one another and each of their respective Representatives (such Persons, collectively, the “Inspecting Party”) reasonable access, during normal business hours and without undue interruption of their respective businesses, to the offices, and all of the properties, facilities, assets, contracts, data, books and records (other than records relating to attorney-client privileged communications, and, for the avoidance of doubt, other than where access to such information is prohibited by applicable Law or would reasonably be expected to jeopardize a legal privilege or third party contract as in effect as of the date hereof; provided, that, in the case of any restriction to access of the foregoing information, the party restricting such access shall give notice to the Inspecting Party of any such information being withheld, and thereafter the party restricting such access shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to cause such

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information to be provided to the Inspecting Party in a manner that would not reasonably be expected to jeopardize such privilege or violate such Law or contract), and will furnish the Inspecting Party during such period all such information as such other party may reasonably request, (ii) permit the Inspecting Party to make such inspections thereof as such other party may from time to time reasonably request, (iii) furnish the Inspecting Party such financial and operating data and any other information as such the Inspecting Party may reasonably request and (iv) cooperate in good faith with one another, and provide one another with reasonable access to their respective Representatives and Subsidiaries.  The Inspecting Party will hold in confidence all information so obtained in accordance with the terms and conditions of Section 4.1.  At least fifteen (15) days prior to the Closing Date, (x) the Company shall provide the Buyer with a schedule showing which of the Company and its Subsidiaries will receive the Closing Consideration and the Royalty Consideration at the Closing and in which proportions, and which of the Company and its Subsidiaries will be transferring the specified Transferred Assets and Assumed Liabilities at the Closing and (y) the Buyer shall provide the Company with a schedule showing which of the Buyer Entities will receive the specified Transferred Assets and assume the specified Assumed Liabilities at the Closing and which of the Buyer Entities will pay the Closing Consideration and the Royalty Consideration to the Company and its Subsidiaries at Closing and in which proportions.  The Parties agree to use reasonable best efforts to cooperate to minimize or mitigate any Taxes in connection with the transfers of Transferred Assets and Assumed Liabilities and payments of Closing Consideration, Royalty Consideration and the amounts required in accordance with Section 4.26 contemplated by this Agreement.  The Parties further agree to use commercially reasonable efforts to cooperate (i) to ensure that each of the transactions contemplated in this Agreement does not qualify as an exchange under Section 351 of the Code; and (ii) to ensure that the Company and its Subsidiaries are permitted to defer Tax that arises by reason of the transfers of Transferred Assets and Assumed Liabilities and payments of Closing Consideration, Royalty Consideration and the amounts required in accordance with Section 4.26 contemplated by this Agreement to the maximum extent possible under the “installment sale” rules of Section 453 of the Code.

(b)                                 For six (6) years after the Closing Date, the Company and its Representatives shall have, during normal business hours, without undue interruption of the business of the Buyer, and on at least two (2) Business Days’ prior written notice, reasonable access to those books and records of the Buyer Entities to the extent related to the Business to enable the Company to prepare financial statements or Tax Returns or comply with Tax audits, regulatory proceedings or to perform any other obligations of the Company related to the Business.  In addition, if the Buyer (or any of its Subsidiaries) decides to dispose of any such books and records and other records prior to the expiration of such six (6)-year period, the Buyer shall, prior to such disposition, give the Company a reasonable opportunity, at the Company’s expense, to segregate and remove such books and records as the Company may select.

(c)                                  For six (6) years after the Closing Date, the Buyer and its Representatives shall have, during normal business hours, without undue interruption of the business of the Company, and on at least two (2) Business Days’ prior written notice, reasonable access to those books and records of the Company or its Subsidiaries to the extent related to the Business to enable the Buyer to prepare financial statements or Tax Returns or comply with Tax audits, regulatory proceedings or to perform any other obligations of the Buyer related to the Business.  In addition, if the Company (or any of its Subsidiaries) decides to dispose of any such books and

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records and other records prior to the expiration of such six (6)-year period, the Company shall, prior to such disposition, give the Buyer a reasonable opportunity, at the Buyer’s expense, to segregate and remove such books and records as the Buyer may select.

(d)                                 In addition to the foregoing, during the Royalty Term and for one (1) year thereafter, the Buyer shall maintain, and shall cause its Subsidiaries and use reasonable best efforts to cause its sublicensees to maintain, complete and accurate records in all material respects with respect to the commercialization of the Indocin Product to the extent required to permit the Royalty Recipient to confirm the accuracy of the Royalty Statements submitted by the Buyer hereunder.  The  Buyer shall provide the Royalty Recipient and its Representatives reasonable access to such records during normal business hours during the Royalty Term and for a period of one (1) year thereafter for the purpose of reviewing the accuracy of the Royalty Statements submitted by the Buyer hereunder.

(e)                                  Any party permitted access pursuant to Sections 4.2(b) through 4.2(d) shall be subject to the same restrictions and qualifications on such access as an Inspecting Party pursuant to Section 4.2(a), mutatis mutandis.

4.3                               Further Assurances; Filings; Efforts; Cooperation

(a)                                 In connection with this Agreement and the transactions contemplated hereby, the parties hereto shall (i) use their reasonable best efforts to obtain as promptly as practicable any consents, approvals, waivers and authorizations of, actions or non-actions by, and make, as promptly as reasonably practicable, all necessary filings and submissions with, or deliver any notices to, any Governmental Entity or other third party, in each case which are required to be obtained, made or sent by the Company or the Buyer or any of their respective Subsidiaries in connection with the authorization, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby (including without limitation, obtaining the Company Required Consents; provided that in no event shall (A) the Company be required to pay or agree to pay any fee, penalty or other consideration (other than payment of any applicable HSR Act filing fee triggered by its proposed acquisition of the Equity Consideration, Notes Consideration and Royalty Consideration under this Agreement), or modify any Assumed Contract, to obtain any consent, approval, clearance, order, waiver or authorization in connection with the transactions contemplated by this Agreement under any Assumed Contract in each case, that is not otherwise required to be made by the Company or any of its Subsidiaries pursuant to the terms of any such Assumed Contract, or (B) the Buyer be required to pay or agree to pay any fee, penalty or other consideration (other than payment of any applicable HSR Act filing fee triggered by its proposed acquisition of the Transferred Assets under this Agreement), or modify any Assumed Contract, to obtain any consent, approval, clearance, order, waiver or authorization in connection with the transactions contemplated by this Agreement under any Assumed Contract in each case, that is not otherwise required to be made pursuant to the terms of any such Assumed Contract, (ii) cooperate with each other in (A) determining which filings are required to be made prior to the Closing with, and which material consents, approvals, permits, notices or authorizations are required to be obtained prior to the Closing from, Governmental Entities or third parties in connection with the execution and delivery of this Agreement and the Ancillary Agreements and consummation of the transactions contemplated hereby and thereby and (B) making all such filings and timely seeking all such consents, approvals, permits, notices or

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authorizations, (iii) use reasonable best efforts to cause the conditions to the Closing set forth in Article V to be satisfied as promptly as reasonably practicable, and (iv) use reasonable best efforts to take, or cause to be taken, all other actions and do, or cause to be done, and cooperate with each other in order to do, all other things reasonably necessary or appropriate to cause the Closing to occur and to consummate the transactions contemplated hereby as soon as practicable; provided that, for the avoidance of doubt, none of the parties hereto shall be obligated or required by this Section 4.3 to waive a condition to Closing set forth in Article V.

(b)                                 Without limiting the generality of Section 4.3(a), and subject to Section 4.3(c), the Buyer and the Company shall, and shall cause their respective Subsidiaries and other Affiliates to (i) as soon as practicable after the date of this Agreement, each prepare and file any pre-acquisition notification required under the HSR Act to be filed with the Federal Trade Commission (the “FTC”) and the U.S. Department of Justice (the “DOJ”) and (ii) promptly provide any supplemental information requested or required by the FTC and DOJ in connection with such notification in substantial compliance with the HSR Act and other applicable Laws.  The parties shall jointly develop, and each of the parties shall consult and cooperate in all respects with one another, and consider in good faith the views of one another, in connection with the form and content of any analyses, appearances, presentations, memoranda, briefs, arguments, opinions, and proposals made or submitted by or on behalf of any party, hereto in connection with proceedings under or relating to the HSR Act prior to their submission.  In connection with the foregoing, with respect to this Agreement and the transactions contemplated hereby, (w) the parties agree to provide the other (or its outside counsel, where appropriate), with any information that may be necessary or advisable to make such applications, notices, and/or filings, including, upon request by the other, all information concerning itself, its subsidiaries, directors, officers, and stockholders, and copies of any material correspondence, filing or communication (or oral summaries or memoranda setting forth the substance thereof) between such party or any of its Representatives, on the one hand, and any Governmental Entity or members of their respective staffs, on the other hand, (x) each party will keep the other apprised of the status of matters relating to completion of the transactions contemplated herein; (y) prior to submitting or making any such correspondence, filing or communication to any such Governmental Entity or members of their respective staffs, the parties shall first provide the other party with a copy of such correspondence, filing or communication in draft form, and incorporate all reasonable comments timely made by the other party with respect thereto; and (z) to the extent permitted by applicable Law, each of the parties shall not agree to participate in any meeting or discussion with any such Governmental Entity in respect of any filing, investigation, or inquiry concerning this Agreement unless, to the extent reasonably practicable, it consults with the other party in advance and, to the extent permitted by such Governmental Entity, gives the other party the opportunity to attend and participate therein.  The parties hereto agree that they will consult with each other with respect to the obtaining of all permits, consents, approvals and authorizations of all third parties and Governmental Entities necessary or advisable to consummate the transactions contemplated by this Agreement.

(c)                                  Without limiting the foregoing in this Section 4.3, the Buyer and the Company shall not extend any waiting period or comparable period under the HSR Act or other Competition Laws or enter into any agreement with any Governmental Entity not to consummate the transactions contemplated hereby, except with the prior written consent of the other party  In addition, each of parties agrees to use its commercially reasonable efforts to take promptly any

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and all actions necessary to vacate or lift any order relating to antitrust or competition that would have the effect of making any of the transactions contemplated hereby illegal or otherwise prohibiting, preventing, or delaying their consummation.

(d)                                 Notwithstanding anything in this Agreement to the contrary, it is expressly understood and agreed that: (i) no party shall have any obligation to litigate or contest any administrative or judicial action or proceeding or any decree, judgment, injunction or other order, whether temporary, preliminary or permanent; and (ii) no party shall be under any obligation to make proposals, execute or carry out agreements, enter into consent decrees or submit to orders providing for (A) the sale, divestiture, license or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of the Buyer or any of its Affiliates or the Company or any of its Subsidiaries, (B) the imposition of any limitation or regulation on the ability of such party or any of its Affiliates to freely conduct their business or own such assets, or (C) the holding separate of the Company or its Subsidiaries or any limitation or regulation on the ability of the Buyer or any of its Affiliates to exercise full rights of ownership of the Business or any of the Transferred Assets.

(e)                                  The Buyer acknowledges that (i) pursuant to the Company Term Loan Agreement, the Company Lenders (or affiliates thereof) have made available to the Company and its Subsidiaries term loans (together with any amendments thereto, the “Company Term Loan”) secured by collateral comprised in part of the Transferred Assets and (ii) this Agreement and all consideration received in connection therewith (including the Equity Consideration, the Notes Consideration and the Royalty Consideration) will constitute proceeds of the Transferred Assets and will become (and be required to become) subject to such security interests under the Company Term Loan Agreement upon receipt thereof by the Company and its Subsidiaries.  The Buyer hereby agrees that it will not object to or interfere with the Company, any Subsidiary of the Company, the Collateral Agent or any Company Lender, as the case may be, (i) executing any pledge or security documents in respect of the Equity Consideration, the Notes Consideration or the Royalty Payments, (ii) performing any and all actions that the Company, any Subsidiary of the Company, the Collateral Agent or any Company Lender deems reasonably necessary or desirable to perfect the security interest in respect of the foregoing, and (iii) enforcing any remedies that the Collateral Agent or any Company Lender has under the Company Term Loan Agreement or any related loan, pledge or security documents, in the case of clauses (i) through (iii), to the extent that any of the foregoing activities do not result in any material out of pocket expenses for any Buyer Entity.  The Buyer hereby further agrees that, following a valid Transfer of the Royalty Consideration or any portion of the Equity Consideration or the Notes Consideration, including any rights thereunder, to any Company Lender in accordance with Section 8.4, it shall comply with any reasonable instructions from the Company to pay all or any portion of any amounts due and payable under the Notes Consideration, the Equity Consideration or the Royalty Payments to such Company Lender, and to transfer on the Buyer’s books the record ownership of all or any portion of the Notes Consideration or the Equity Consideration to the Collateral Agent or any Company Lender or its designee or assignee(s) to the extent so validly Transferred to any such Person.

(f)                                   The Company acknowledges and agrees that no Buyer Entity nor any of such Buyer Entity’s Affiliates or Representatives shall have any responsibility for, or incur any liability to any Person as a result of the execution of pledge or security documents in respect of

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the Equity Consideration, the Notes Consideration or the Royalty Payments, the perfection of a security interest thereon or the enforcement of remedies under the Company Term Loan Agreement or any related loan, pledge or security documents or compliance with Company instructions, in each case as described in Section 4.3(e) (except to the extent of a Buyer breach of Section 4.3) and that the Company shall indemnify and hold harmless the Buyer Entities, their respective Affiliates and Representatives from and against any Damages suffered or incurred by any of them as a result of their activities performed in accordance with in Section 4.3(e).

(g)                                  To the extent reasonably requested by the Company, for a period of two (2) years after the Closing, the Buyer shall use reasonable best efforts to assist the Company and its Subsidiaries in collecting accounts receivables that constitute Excluded Assets and thereafter the Buyer shall cooperate with the Company and its Subsidiaries in good faith in connection with their efforts to collect such accounts receivable, provided that, in each case, no Buyer Entity shall be required to pay or agree to pay any material out of pocket fees, costs or expenses, to grant or provide any other consideration to any third party (including granting any accommodation, waiving any right or foregoing any benefit), or to initiate any claim, action, suit or other proceeding against any third party, in each case in connection with such assistance.

4.4                               Public Disclosure.  Except as required to be disclosed by applicable Law including, without limitation, applicable securities Laws or other stock market regulations or in connection with filings or other communications made by the Debtors in the Chapter 11 Cases, from and after the date hereof, the Buyer and the Company shall not, and shall cause their respective Subsidiaries and other Affiliates not to, issue any press release or other public statement or communication with respect to the transactions contemplated by this Agreement unless approved in advance in writing by the Buyer and the Company, which approval shall not be unreasonably withheld, conditioned or delayed; provided, that the party seeking disclosure shall provide the other party with at least two (2) Business Days written notice, or. if shorter, such written notice as promptly as reasonably practicable under the circumstances, of the proposed release, statement or communication.  Any subsequent disclosure that solely contains information included in a prior public statement, news release or other similar public announcement made in accordance with this Section 4.4 shall be deemed consented to by the Buyer and the Company.

4.5                               Noncompetition.

(a)                                 Non-Competition.  The Company, on its behalf and on behalf of its Subsidiaries and other Affiliates, hereby acknowledges that the Company is familiar with trade secrets with respect to the conduct and operation of the Business and with other Confidential Information of the Buyer. The Company, on its behalf and on behalf of its Subsidiaries and other Affiliates, acknowledges and agrees that the Business would be irreparably damaged if the Company, its Subsidiaries and/or its other Affiliates were to provide services, including manufacturing, testing, developing, distributing, marketing, using, selling, supplying or otherwise dealing with any products that compete, directly or indirectly, with the Business and that any such competition by the Company, its Subsidiaries or any of their respective Affiliates would result in a significant loss of goodwill related to the Business. The Company, on its behalf and on behalf of its Subsidiaries and other Affiliates, further acknowledges and agrees that the covenants and agreements set forth in this Section 4.5 are a material inducement to the Buyer to

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enter into this Agreement and to perform its obligations hereunder, and that the Buyer would not obtain the benefit of the bargain set forth in this Agreement as specifically negotiated by the parties hereto if the Company, its Subsidiaries and/or its other Affiliates breached the provisions of this Section 4.5.  Therefore, the Company, on its behalf and on behalf of its Subsidiaries and other Affiliates, agree, in further consideration of the amounts to be paid hereunder for the Transferred Assets sold by the Company, its Subsidiaries and their respective Affiliates, that neither the Company nor any of its Subsidiaries shall (and shall cause their respective Affiliates not to) directly or indirectly own any interest in, manage, control, participate in (whether as an officer, director, employee, partner, agent, representative or otherwise), consult with, render services for, or in any other manner engage anywhere in any business which manufactures, tests, develops, distributes, markets, uses, sells, supplies, or otherwise deals with any products that compete, directly or indirectly, with (i) in the case of any Indocin Product, for a period of time from the Closing Date until the expiration of eighteen (18) calendar months following the Closing Date and (ii) in the case of any other nonsteroidal anti-inflammatory Product, for a period of time from the Closing Date until the first (1st) anniversary of the Closing Date; provided, that nothing herein shall prohibit the Company or any of its Subsidiaries or other Affiliates from being a passive owner of not more than two percent (2%) of the outstanding securities of any class of a company or business which is publicly traded so long as none of such Persons has any active participation in the business of such company or business.

(b)                                 Employee and Contractor Non-Solicit. From the Closing Date until the first (1st) anniversary of the Closing Date, the Company and its Subsidiaries shall not, and shall cause their respective Affiliates not to, directly or indirectly through another Person, (i) induce or attempt to induce any employee or contractor involved in the conduct or operation of the Business to leave the employ or the engagement with any Buyer Entity, or in any way interfere with the relationship between any Buyer Entity and any employee or contractor thereof; or (ii) hire any individual who is or was, within six (6) months of such Person’s termination of employment or services with any Buyer Entity, an employee or contractor involved in the conduct or operation of the Business; provided, however, this clause (b) shall not prohibit the Company and its Subsidiaries and their respective Affiliates from soliciting or hiring any such current or former employee or contractor who responds to a general advertisement or solicitation, including but not limited to advertisements or solicitations through any general advertising medium, including but not limited to newspapers, trade publications, periodicals, radio or internet database, or efforts by any recruiting or employment agencies, not specifically directed at such current or former employees or contractors.

(c)                                  Customer Non-Solicit. From the Closing Date until the first (1st) anniversary of the Closing Date, the Company and its Subsidiaries shall not, and shall cause their respective Affiliates not to, directly or indirectly through another Person, induce or attempt to induce any customer of the Business to cease doing business with any Buyer Entity, or in any way interfere with the relationship between any such customer and any Buyer Entity (including making any negative public statements or communications about the Business or any Product).

(d)                                 Supplier and Business Relation Non-Solicit. From the Closing Date until the first (1st) anniversary  of the Closing Date, the Company and its Subsidiaries shall not, and shall cause their respective Affiliates not to, directly or indirectly through another Person, induce or attempt to induce any strategic partner, supplier, vendor, licensee, licensor or other business

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relation of the Business to cease doing business with any Buyer Entity, or in any way interfere with the relationship between any such strategic partner, supplier, vendor, licensee or business relation and any Buyer Entity (including making any negative public statements or communications about the Business or any Product).

(e)                                  Non-Disparagement. The Company and its Subsidiaries, on the one hand, and the Buyer, on the other hand, agree that they shall cause their respective officers not to (i) make any negative statement or communication regarding, in the case of the Company, the Buyer, the Buyer Lenders or any of their respective Affiliates, the Business or any Product, any of the foregoing’s respective directors, officers or employees, and, in the case of the Buyer, the Company, its Subsidiaries, the Company Lenders or any of their respective Affiliates, or any of the foregoing’s respective directors, officers or employees, or (ii) make any derogatory or disparaging statement or communication regarding, in the case of the Company, the Buyer, the Buyer Lenders or any of their respective Affiliates, the Business or any Product or any of the foregoing’s respective directors, officers or employees, and in the case of the Buyer, the Company, its Subsidiaries, the Company Lenders or any of their respective Affiliates, any of the foregoing’s respective directors, officers or employees. Nothing in this Section 4.5(e) shall limit any party, its Subsidiaries or any of their respective Affiliates’ ability to make true and accurate statements or communications in connection with any disclosure such Person reasonably believes is required pursuant to applicable Law, to any Governmental Entity or in connection with any dispute, litigation or other proceeding related to this Agreement or the transactions contemplated hereby.

(f)                                   Enforcement. If, at the time of enforcement of the covenants contained in this Section 4.5 (the “Restrictive Covenants”), a court shall hold that the duration, scope or area restrictions stated herein are unreasonable under circumstances then existing, the parties agree that the maximum duration, scope or area reasonable under such circumstances shall be substituted for the stated duration, scope or area and that the court shall be allowed and directed to revise the restrictions contained herein to cover the maximum period, scope and area permitted by Law.  The Company and its Subsidiaries have consulted with legal counsel regarding the Restrictive Covenants and based on such consultation has determined and hereby acknowledges that the Restrictive Covenants are reasonable in terms of duration, scope and area restrictions and are necessary to protect the goodwill of the Business, the substantial investment in the Transferred Assets made by the Buyer in this Agreement, and other legitimate business interests of the Buyer. The Company further acknowledges and agrees (including on behalf of its Subsidiaries) that the Restrictive Covenants are being entered into by it in connection with the sale by the Company of the Transferred Assets. If the Company, or its Subsidiaries or Affiliates, breaches, or threatens to commit a breach of, any of the Restrictive Covenants, the Buyer shall have the right and remedy to have the Restrictive Covenants specifically enforced by any court of competent jurisdiction, without the necessity of proving actual damage or posting bond or other security, it being agreed that any breach or threatened breach of the Restrictive Covenants would cause irreparable injury to the Buyer and that money damages would not provide an adequate remedy to the Buyer, and which right and remedies shall be independent of any others and severally enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Buyer or any of its Affiliates at Law or in equity.  Any claim the Company, or its Subsidiaries or Affiliates, may have against the Buyer or its Affiliates, or any Representative, under this Agreement or otherwise, shall not constitute a defense to the

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enforcement of the Restrictive Covenants. The Company agrees that the Buyer’s Affiliates are a beneficiary of the restrictions set forth in this Section 4.5 and may enforce the obligations in this Section 4.5.

(g)                                  Tolling.  The Company and the Buyer agree and intend that the Company’s and its Subsidiaries’ and other Affiliates’ obligations under this Section 4.5 (to the extent not perpetual) be tolled during any period that the Company, its Subsidiaries or any of their respective Affiliates are in breach of any of the Restrictive Covenants, so that the Buyer and its Affiliates are provided with the full benefit of the restrictive periods set forth herein.

(h)                                 Affiliates.  Notwithstanding anything to the contrary in this Agreement, for purposes of Section 4.5, none of ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇ or any of their respective Affiliates, including Athilio Pharma, LLC and 42 North, LLC, shall be deemed an Affiliate of the Company or any of its Subsidiaries or other Affiliates.

4.6                               Regulatory Matters.

(a)                                 At least five (5) Business Days prior to the Closing Date, the Buyer and the Company shall (or shall cause their applicable Subsidiary or Affiliate to) deliver to the other party the Buyer FDA Letters and the Company FDA Letters, respectively.

(b)                                 Promptly following the Closing, each party shall take all other actions reasonably necessary to notify the FDA and any other applicable Governmental Entities that the Transferred Regulatory Authorizations have been transferred to the Buyer.  Transfer of title to the Transferred Regulatory Authorizations shall be effective as of the Closing.

(c)                                  Following the Closing Date, the Buyer shall, as promptly as reasonably practicable, list with the FDA its own NDC numbers with respect to each Product and to have in place as soon as reasonably practicable all resources such that manufacturing and sales can be accomplished under the NDC numbers of the Buyer.  The Buyer shall be permitted (i) to manufacture and label each Product using the Company’s and its Subsidiaries’ NDC numbers for a period of no more than twelve (12) months following the Closing Date and (ii) to sell and distribute each Product using the Company’s and its Subsidiaries’ NDC numbers for a period of no more than twenty four (24) months following the Closing Date.

(d)                                 From the Closing Date until six (6) months after the Closing Date, the Company shall notify the Buyer of any information provided to it by any third party and not generally available to the public concerning any Adverse Event with respect to any Product whether or not determined to be attributable to such Product, no later than five (5) Business Days after receipt of the information.

4.7                               Consents; Wrong Pockets; Payments.

(a)                                 Notwithstanding anything in this Agreement to the contrary, this Agreement shall not constitute the assignment or transfer any Assumed Contract or any other Transferred Asset that is not assignable or transferable without the consent of any third party and to the extent that such consent shall not have been obtained prior to the Closing shall be deemed deferred and any such purported Transfer or Assumption shall be null and void until such time as

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such consent has been obtained; provided, however, that the Company shall, and shall cause its Subsidiaries and other Affiliates to, at the Company’s sole cost and expense, use, prior to the Closing Date, commercially reasonable efforts to obtain as promptly as possible, and the Buyer shall use its commercially reasonable efforts to assist and cooperate with the Company in connection therewith, all necessary consents to the assignment and transfer thereof; provided, further, that none of the Company, the Buyer or any of their Affiliates shall be required to pay money to any Person (other than the costs and expenses referenced above), commence or participate in any litigation or offer or grant any accommodation (financial or otherwise) to any Person in connection with such efforts.  With respect to any Assumed Contract or any other Transferred Asset that is not assigned or transferred to the Buyer at the Closing by reason of this Section 4.7 (a “Nonassigned Asset”), following the Closing the Company shall, and shall cause its Subsidiaries and other Affiliates, to continue to use commercially reasonable efforts to obtain all necessary consents to the assignment and transfer of such Nonassigned Assets, and until the time such requisite consent is obtained and the foregoing is transferred and assigned to the Buyer, (x) the Company shall, and shall cause its Subsidiaries and other Affiliates to, use commercially reasonable efforts to provide to the Buyer the maximum allowable use of the Nonassigned Assets (which shall include, at a minimum, the economic benefits of such Nonassigned Assets), including by establishing an agency type or other similar arrangement reasonably satisfactory to the Buyer under which the Buyer would obtain, to the fullest extent practicable, the claims, rights and benefits and assume the corresponding liabilities and obligations thereunder from and after the Closing in accordance with this Agreement (including by means of any subcontracting, sublicensing or subleasing arrangement) and (y) to the extent permitted by Law, the Company shall, and shall cause its Subsidiaries and other Affiliates to, exercise, enforce and exploit, only at the direction of and for the benefit of the Buyer and its Affiliates, any and all claims, rights and benefits of the Company or its applicable Subsidiary or Affiliate arising in connection with such Nonassigned Asset, including the right to seek any available remedies or to elect to terminate in accordance with the terms thereof at the direction of the Buyer, in each case, without any further consideration.  During such period and without further consideration, (i) the Company shall, and shall cause its Subsidiaries and other Affiliates to, promptly pay, assign and remit to the Buyer when received all monies and other consideration relating to the period after the Closing Date received by it under any such Nonassigned Asset not transferred pursuant to this Section 4.7 and (ii) the Buyer shall perform, at the direction of the Company, the obligations of the Company, its Subsidiaries or any of their respective Affiliates thereunder solely to the extent such obligations constitute Assumed Liabilities hereunder.

(b)                                 If either the Buyer, on the one hand, or the Company, its Subsidiaries or any of their respective Affiliates, on the other hand, becomes aware that any of the Transferred Assets has not been transferred to the Buyer or that any of the Excluded Assets (including any payments due on the accounts receivable that are part of the Excluded Assets) has been transferred to the Buyer or paid to any Buyer Entity by a third party, as the case may be, the Buyer or the Company, as applicable, shall promptly notify the other and the parties shall, as soon as reasonably practicable, ensure that such property is transferred, subject to Section 4.7(a), with any necessary prior third party consent or notice, to (i) the Buyer, in the case of any Transferred Asset which was not transferred to the Buyer at the Closing; or (ii) the Company, in the case of any Excluded Asset which was transferred to the Buyer at the Closing or any payments made to any Buyer Entity by a third party in respect of the Excluded Assets.

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(c)                                  If the Company, its Subsidiaries or any of their respective Affiliates receives any deposit or payment (whether before or after Closing) that relates to obligations under any Assumed Contract to be performed or satisfied in whole or in part after the Closing, then the Company shall pay to the Buyer, promptly but no later than five (5) Business Days following the later of the Closing Date and the date such Company or its Subsidiary or Affiliate receives such deposit or payment, an amount equal to the portion of such deposit or payment that relates to such obligations to be performed or satisfied after the Closing. If the Buyer or any of its Affiliates receives any deposit or payment that relates to obligations under any Assumed Contract performed or satisfied in whole or in part prior to the Closing (including, but not limited to, in payment of any accounts receivable that are part of the Excluded Assets), then the Buyer shall pay to the Company, promptly but no later than five (5) Business Days following the date the Buyer or its Affiliate receives such deposit or payment, an amount equal to the portion of such deposit or payment that relates to such obligations performed or satisfied prior to the Closing notwithstanding any other provision of this Agreement.  If the Company, any of its Subsidiaries or any of their respective Affiliates receives any good or service prior to the Closing under any Assumed Contract which is billed to the Buyer after the Closing, upon request and presentation of reasonable supporting documentation, the Company shall reimburse the Buyer for the amount of such payment promptly following the date of such request, but no later than five (5) Business Days thereafter, provided that the Buyer shall have obtained the Company’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed) before making any such payment.

(d)                                 If at any time after Closing it is established that any asset, which was not included in the Transferred Assets but should have been a Transferred Asset or that is otherwise related to the conduct or operation of the Business, is held or received by the Company, its Subsidiaries or any of their respective Affiliates, the Company shall or shall cause its Affiliate to, subject to Section 4.7(a), without further consideration: (A) execute all instruments, agreements or documents as may be reasonably necessary for the purpose of transferring the relevant interests in the assets (or part thereof) to the Buyer (or its designee as the Buyer shall nominate in writing), (B) do all such further acts or things as may be reasonably necessary to validly effect the transfer and vest the relevant interest in such assets (or part thereof) in the Buyer (or its designee), (C) ensure that the Company, its Subsidiaries and their respective Affiliates hold the asset (or part thereof), and any monies, goods or other benefits arising after the Closing by virtue of it, as agent of and trustee for the Buyer and allow the Buyer to have maximum enjoyment and use of such asset, and (D) ensure that the Company, its Subsidiaries and their respective Affiliates shall promptly on receipt pay or deliver such monies, goods or other benefits to the Buyer (or its designee).

4.8                               Financial Statement Preparation.

(a)                                 The Company shall use commercially reasonable efforts to cooperate with Buyer, Buyer Parent and their accounting advisors in order to enable Buyer Parent to reasonably promptly determine whether it is or would be required to include audited, unaudited and/or pro forma financial statements related to the Transferred Assets and the Business for any periods prior to Closing in the reports to be filed by Buyer Parent with the SEC pursuant to the Exchange Act, in a registration statement filed by Buyer Parent with the SEC under the Securities Act in accordance with Regulation S-X (“Regulation S-X”) promulgated by the SEC or in the Plan or

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any other document related thereto (the “Required Financial Statements”).  For purposes of clarification, if financial statements covering different periods could constitute the Required Financial Statements under the Exchange Act or the Securities Act and the rules and regulations promulgated thereunder, then Buyer Parent shall determine which such periods will constitute the Required Financial Statements for purposes of this Agreement. Such commercially reasonable efforts of the Company shall include providing to Buyer, Buyer Parent and their accounting advisors reasonably promptly such financial information available to the Company related to the Transferred Assets as Buyer Parent may reasonably request (the “Financial Information”).

(b)                                 If Buyer determines to obtain permission from the SEC’s Division of Corporation Finance, Office of the Chief Accountant (“OCA”) for the use of “Abbreviated Financial Statements” as described in Section 2065.4 through 2065.12 of the Division of Corporation Finance Financial Reporting Manual, the Company shall cooperate with Buyer Parent’s efforts to obtain such permission at the same level as described in Section 4.8(a) above.

(c)                                  If Buyer Parent determines that it is required to file with the SEC the Required Financial Statements, then Buyer or Buyer Parent shall retain, at the Buyer’s expense, a public accounting firm to prepare the Required Financial Statements, subject to the approval of the Company, which approval will not be unreasonably withheld or delayed (the accounting firm preparing the Required Financial Statements, the “Preparing Firm”).

(d)                                 From and after the date of this Agreement, the Company shall provide to the Preparing Firm the Financial Information as is reasonably necessary to enable the Preparing Firm to prepare the Required Financial Statements and for the auditing firm engaged by Buyer Parent to audit the applicable Required Financial Statements at Buyer or Buyer Parent’s sole expense (the “Auditing Firm”).  Additionally, from and after the date of this Agreement, the Company shall provide to the Preparing Firm and the Auditing Firm reasonable access to the records of the Company regarding the Financial Information subject to reasonable advance notice and agreed scheduling during normal business hours, and the Company shall make its accounting staff reasonably available to address any questions of the Preparing Firm or the Auditing Firm pertaining to the Financial Information or the Required Financial Statements. The Company’s commercially reasonable efforts to cooperate shall include providing the auditor retained by Buyer or Buyer Parent with reasonable and customary representation letters in connection with the Required Financial Statements to the extent such letters are reasonably requested by such auditor in connection with reviewing or auditing, as applicable, the Required Financial Statements.

(e)                                  The Company shall, at the Company’s sole expense, cause the accounting firm that audited the Company’s consolidated financial statements for the fiscal year ended December 31, 2017 (or such other accounting firm as the Buyer shall reasonably approve in writing) to complete an audit for the Company’s consolidated financial statements for the fiscal year ended December 31, 2018 (the “2018 Financial Statements”), as soon as practicable following December 31, 2018 (and in no event later than sixty (60) days thereafter).  In performance of the audit, the Company shall cause the auditing firm to conduct the examination of the Company and its Subsidiaries in accordance with generally accepted accounting standards.  Upon completion of the audit, the Company shall deliver a true and complete copy of the audited

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financial statements to the Buyer, together with the audit opinion thereon.  The Company shall keep the Buyer reasonably informed as to the status and any material developments with respect to the audit.

4.9                               [Reserved]

4.10                        Conduct of Business Prior to Closing.

(a)                                 During the Pre-Closing Period, the parties shall each, and shall each cause their respective Subsidiaries and other Affiliates to, conduct their respective business operations in the ordinary course of business consistent with past practice and in accordance with applicable Law, and to (i) maintain in effect and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all applications and registrations for, in the case of the Company, any Intellectual Property included in the Transferred Assets, and, in the case of the Buyer, the Buyer Intellectual Property, and (ii) use reasonable best efforts to preserve intact their respective business operations, including their respective existing assets, organizations, operations, rights, permits and goodwill, and business relationships with key customers, suppliers and manufacturers and other Persons with whom the parties, their respective Subsidiaries and their respective Affiliates have significant business relationships.  Notwithstanding anything to the contrary in this Section 4.10, the Company acknowledges that the Buyer and certain of its Affiliates will be debtors in the Chapter 11 Cases and neither the filing of the Chapter 11 Cases nor the taking of any actions required by the Plan or required by the Bankruptcy Court or the Bankruptcy Code shall be construed as a breach of this Section 4.10 by the Buyer, any of its Subsidiaries or any of their respective Affiliates.

(b)                                 Without limiting the foregoing, during the Pre-Closing Period, except as set forth on Schedule 4.10(b) or as expressly required by this Agreement:

(1)                                 The Company shall not, and shall cause its Subsidiaries and other Affiliates not to, without the prior written consent of the Buyer (such consent not to be unreasonably withheld, conditioned or delayed), do any of the following:

(A)                               mortgage, lease, pledge or otherwise encumber any Transferred Assets or sell, transfer, grant any license, abandon, permit to lapse or otherwise dispose of any Transferred Assets except sales of inventory in the ordinary course of business;

(B)                               acquire, lease or license-in any right or other asset that would constitute a Transferred Asset from any other Person for an aggregate value in excess of $500,000;

(C)                               enter into any contract that would constitute an Assumed Contract, or terminate any Assumed Contract, or make any material amendment or modification to, or, other than in the ordinary course of business consistent with past practice, renew or extend or waive any material right under any Assumed Contract;

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(D)                               (i) transfer, assign or grant any license or sublicense of any rights under or with respect to any Intellectual Property included in the Transferred Assets or (ii) abandon, lapse or allow to lapse, or fail to take any action necessary to maintain the validity and enforceability of, any rights with respect to any Intellectual Property included in the Transferred Assets, other than, with respect to clause (ii), in the ordinary course of business consistent with past practice;

(E)                                waive any material claims or rights of material value with respect to the Business, any Transferred Asset or any Assumed Liability;

(F)                                 settle, compromise, pay, discharge, waive, or release any Action, suit, claim, investigation or proceeding with respect to the Business, any Transferred Asset or any Assumed Liability;

(G)                               vary any inventory or sales practices (including, without limitation, with respect to the collection of accounts receivable or payments of accounts payable) with respect to any Product in a manner inconsistent with the ordinary course of business (other than increases in pricing charged by the Company or its Subsidiaries for any Products) or fail to produce and maintain inventory levels and amounts consistent with the ordinary course of business and past practice;

(H)                              make any change in its accounting methods, principles or practices, other than as required by GAAP or applicable Law;

(I)                                   fail to maintain in full force and effect insurance coverage substantially comparable in all material respects to that in effect on the date hereof with respect to the Business or the Transferred Assets;

(J)                                   grant any refunds, credits, rebates or other allowances to any supplier, vendor or distributor with respect to the Business, other than in the ordinary course of business consistent with past practice;

(K)                               make any changes to the policies and practices of collecting accounts receivable with respect to the Business, including accelerating the due date of any such payments;

(L)                                permit or allow any of the Transferred Assets to be subjected to any Lien, other than Permitted Liens, and Liens existing on the date hereof;

(M)                            (i) enter into, terminate, adopt or amend any material Company Benefit Plan or any similar arrangement that would be a material Company Benefit Plan if it were in effect on the date hereof; (ii) grant any increase in compensation or benefits, or make any award or

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grant under any Company Benefit Plan, to any current or former director, consultant, officer or employee, in each case, except (A) in the ordinary course of business consistent with past practice, provided that such increases, grants and awards are not in the aggregate material to the Company or any of its Subsidiaries or (B) as required by Law or by the terms of any Company Benefit Plan as in effect immediately prior to the date hereof; or (iii) hire or terminate (except for cause) the employment of (A) any officer or (B) any non-officer employee whose annual compensation is (or is expected to be) at least $200,000; or

(N)                               agree or commit to do any of the foregoing.

(2)                                 The Buyer shall not, and shall cause its Subsidiaries and other Affiliates not to, without the prior written consent of the Company  (such consent not to be unreasonably withheld, conditioned or delayed), do any of the following:

(A)                               mortgage, lease, pledge or otherwise encumber any material assets or sell, transfer, grant any license, abandon, permit to lapse or otherwise dispose of any material assets except sales of inventory in the ordinary course of business;

(B)                               acquire, lease or license-in any right or other asset from any other Person for an aggregate value in excess of $500,000;

(C)                               enter into any contract that would constitute a Buyer Material Contract if entered into prior to the date of this Agreement, or terminate any such contract or any Buyer Material Contract, or make any material amendment or modification to (other than increases in pricing charged by the Buyer Entities for any Buyer Products), or, other than in the ordinary course of business consistent with past practice, renew or extend or waive any material right under any such contract or any Buyer Material Contract;

(D)                               (i) transfer, assign or grant any license or sublicense of any rights under or with respect to any Buyer Intellectual Property or (ii) abandon, lapse or allow to lapse, or fail to take any action necessary to maintain the validity and enforceability of, any rights with respect to any Buyer Intellectual Property, other than, with respect to clause (ii), in the ordinary course of business consistent with past practice;

(E)                                waive any material claims or rights of material value with respect to the Buyer Business or any of the Buyer’s assets or liabilities;

(F)                                 settle, compromise, pay, discharge, waive, or release any Action, suit, claim, investigation or proceeding (other than the

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Chapter 11 Cases in accordance with the Plan) with respect to the Buyer Business or any of the Buyer’s assets or liabilities;

(G)                               vary any inventory or sales practices (including, without limitation, with respect to the collection of accounts receivable or payments of accounts payable) with respect to any Buyer Product in a manner inconsistent with the ordinary course of business (other than increases in pricing charged by the Buyer Entities for any Buyer Products) or fail to produce and maintain inventory levels and amounts consistent with the ordinary course of business and past practice;

(H)                              make any change in its accounting methods, principles or practices, other than as required by GAAP or applicable Law;

(I)                                   fail to maintain in full force and effect insurance coverage substantially comparable in all material respects to that in effect on the date hereof with respect to the Buyer Business or the assets of the Buyer;

(J)                                   grant any refunds, credits, rebates or other allowances to any supplier, vendor or distributor with respect to the Buyer Business, other than in the ordinary course of business consistent with past practice;

(K)                               make any changes to the policies and practices of collecting accounts receivable with respect to the Buyer Business, including accelerating the due date of any such payments;

(L)                                permit or allow any of the properties, rights or assets of the Buyer Entities to be subjected to any Lien, other than Permitted Liens, Liens existing on the date hereof and Liens arising in accordance with the Plan;

(M)                            except as contemplated by the Management Incentive Plan approved in accordance with the Plan, (i) enter into, terminate, adopt or amend any material Buyer Benefit Plan or any similar arrangement that would be a material Buyer Benefit Plan if it were in effect on the date hereof; (ii) grant any increase in compensation or benefits, or make any award or grant under any Buyer Benefit Plan, to any current or former director, consultant, officer or employee, in each case, except (A) in the ordinary course of business consistent with past practice, provided that such increases, grants and awards are not in the aggregate material to the Buyer or any of its Subsidiaries or (B) as required by Law or by the terms of any Buyer Benefit Plan as in effect immediately prior to the date hereof; or (iii) hire or terminate (except for cause) the employment of (A) any officer or (B) any non-officer employee whose annual compensation is (or is expected to be) at least $200,000; or

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(N)                               agree or commit to do any of the foregoing.

(3)                                 Each party shall not, and shall cause its Subsidiaries and other Affiliates not to, without the prior written consent of the other parties (such consent not to be unreasonably withheld, conditioned or delayed), do any of the following:

(A)                               except as contemplated by the Plan, adopt a plan of liquidation, dissolution, merger, consolidation or other reorganization or pass any resolution for voluntary winding-up;

(B)                               acquire or agree to acquire, by merging or consolidating with, or by purchasing any equity or voting interest in or a substantial portion of the assets of, or by any other manner, any business or any Person or division thereof;

(C)                               in each case with respect to the party’s respective assets or in the conduct and operation of its or its Subsidiaries’ and other Affiliates’ businesses or with respect to the party (Buyer Parent, on the one hand, and the Company, on the other hand) and each of its respective Subsidiaries, and except as would not have a material adverse impact on the other party in a period beginning after the Closing Date, (i) make, modify or revoke any Tax election, (ii) change its method of Tax accounting, (iii) amend any Tax Return, (iv) settle or compromise any Tax liability or claim that would create or otherwise cause any Tax liability that would exist or become due after the Closing Date, (v) enter into any Tax sharing agreement, (vi) surrender any right to claim a refund of Taxes or (vii) consent to any extension or waiver of the limitations period (other than an extension or waiver resulting from obtaining a valid extension of time to file Tax Returns in the ordinary course of business) applicable to any Tax claim or assessment relating to any Buyer Entity, the Company, its Subsidiaries or any of the Transferred Assets; or

(D)                               agree or commit to do any of the foregoing.

4.11                        Trade Notification.  From the date hereof through the Closing, the Company and the Buyer shall (and shall cause their respective Subsidiaries to) cooperate in good faith to mutually agree in writing on the method and content of the notifications to customers and suppliers of the sale of the Transferred Assets and the Business to the Buyer hereunder.

4.12                        Exclusivity.  During the Pre-Closing Period, except for the transactions contemplated by this Agreement, each party will, and will cause its Subsidiaries, its other Affiliates and their respective Representatives not to, directly or indirectly, solicit, initiate, facilitate, encourage, cooperate or provide any information to, enter into or continue any negotiation, discussion, contract, agreement, instrument, arrangement or understanding with any Person other than the other parties hereto or such other parties’ Affiliates (including by way of furnishing information regarding their respective businesses and operations, this Agreement or

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the transactions contemplated hereby), with respect to any acquisition of all or a material portion of the assets, capital stock, debt, rights or properties of such party or its Subsidiaries, whether by sale, merger, consolidation, combination, refinancing, liquidation, dissolution, reorganization or similar transaction, or any license, sublicense, sale, lease, exchange, mortgage, pledge, transfer or other disposition in a single transaction or a series of related transactions (each, a “Competing Transaction”).  The parties shall, and shall cause their respective Subsidiaries and other Affiliates and their and their Subsidiaries’ and other Affiliates’ respective Representatives to, immediately cease and cause to be terminated, all discussions or negotiations with any Persons (other than the other parties hereto or any of such other parties’ Affiliates) conducted heretofore with respect to a Competing Transaction and terminate any access of any such Persons to any data room or other document depository maintained by it, its Subsidiaries or any of their respective Affiliates and issue instructions to such Persons (in accordance, if applicable, with the terms and conditions of any confidentiality agreement between it, its Subsidiaries or any of their respective Affiliates, on the one hand, and such Person, on the other hand) to promptly return or destroy any of its, its Subsidiaries’ or their respective Affiliates’ Confidential Information.  In the event that a party, its Subsidiaries or any of their respective Affiliates and Representatives receives any written communication involving the matters set forth in this Section 4.12, such party shall promptly, but in any event within 24 hours, (i) advise the other parties in writing of the receipt, directly or indirectly, of any such communication (including the specific terms thereof and the identity of the other individual or entity or individuals or entities involved), (ii) promptly furnish to such other party a copy of any such written communication in addition to a copy of any information provided to or by any third Person relating thereto, and (iii) advise the sender of such communication that it, its Subsidiaries and their respective Affiliates are subject to the obligations set forth in this Section 4.12.  The Company and the Buyer recognize and agree that immediate irreparable damages for which there is not adequate remedy at law would occur in the event that the provisions of this Section 4.12 are not performed in accordance with the specific terms hereof or are otherwise breached.  It is accordingly agreed that in the event of a failure by a party to perform its obligations under this Section 4.12, the non-breaching party shall be entitled to seek specific performance through injunctive relief to prevent breaches of the provisions and to enforce specifically the provisions of this Section 4.12 in addition to any other remedy to which such party may be entitled, at Law or in equity. Any breach of the terms of this Section 4.12 by any Affiliate or Representative of a party, such party’s Subsidiaries or any of their respective Affiliates (as if it were a party hereto) shall be deemed a breach by such party.

4.13                        Bulk Sales Laws. The parties hereby waive compliance with the provisions of any bulk sales, bulk transfer or similar Laws of any jurisdiction that may otherwise be applicable with respect to the transactions contemplated by this Agreement or any Ancillary Agreement, provided that the Company shall indemnify and hold harmless Buyer from any liability resulting from such non-compliance.

4.14                        Issuance of Equity Consideration; Registration.  Buyer shall, and shall cause Buyer Parent to, take any reasonable action required to be taken under the Securities Act, the Exchange Act, any applicable state securities or “blue sky” laws and the rules and regulations thereunder in connection with the issuance of the Equity Consideration; provided, however, that the parties agree and acknowledge that (a) the shares of Parent Common Stock issued pursuant to the terms of this Agreement are intended to be issued in a transaction exempt from registration under the Securities Act by reason of Section 4(a)(2) thereof and/or Regulation D promulgated

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under the Securities Act and (b) Buyer Parent will not be required to register the issuance of the shares of Parent Common Stock issued pursuant to the terms of this Agreement on a Registration Statement on Form S-4 or otherwise prior to the Closing. The Company shall furnish all information concerning the Company, its Subsidiaries and their respective Affiliates as Buyer may be reasonably requested in connection with any such action..

4.15                        Employees and Employee Benefits.

(a)                                 The Buyer or one of its Affiliates will offer employment to, or will offer to enter into a consulting relationship with, all Employees (x) listed on Schedule 4.15(a) of the Company Disclosure Letter or (y) proposed by the Buyer to the Company in writing within forty-five (45) days after the date hereof, who remain actively employed by the Company immediately prior to the Closing (the “Identified Employees”) on terms and conditions determined by the Buyer or such Affiliate.  All Identified Employees who accept such offer of employment (other than those Identified Employees who are offered a consulting relationship) are herein referred to as the “Transferred Employees.”  Neither the Buyer nor any of its Affiliates will have any obligation to any Employee who is not an Identified Employee or to any Identified Employee who does not become a Transferred Employee (or who does not become a consultant to Buyer or one of its Affiliates as contemplated by this Section 4.15(a)).  An Identified Employee who is offered a consulting relationship with Buyer or any of its Affiliates as contemplated by this Section 4.15(a) shall not be treated as a Transferred Employee.

(b)                                 Each Transferred Employee’s active participation in the Company Benefit Plans shall cease as of the Closing or as otherwise provided under the terms of such Company Benefit Plan or applicable Law.

(c)                                  For purposes of vesting, eligibility to participate, and solely with respect to severance and paid time off plans, level of benefits under the employee benefit plans of the Buyer providing benefits to any Transferred Employees after the Closing (the “New Plans”), each Transferred Employee shall be credited with his or her years of service with the Company, its Subsidiaries and their respective predecessors before the Closing, to the same extent as such Transferred Employee was entitled, before the Closing, to credit for such service under any similar benefit plan in which such Transferred Employee participated, or was eligible to participate, immediately prior to the Closing; provided that the foregoing shall not apply to the extent that its application would result in a duplication of benefits.

(d)                                 Nothing contained in this Agreement shall confer upon any Transferred Employee or other Employee any right with respect to employment by the Buyer or its Affiliates, nor shall anything herein interfere with the right of the Buyer or its Affiliates, following the Closing, to terminate the employment of any such Transferred Employee or other Person at any time, with or without cause, or restrict the Buyer or its Affiliates in the exercise of their independent business judgment in modifying any of the terms and conditions of the employment or engagement of any such Transferred Employee or other Person.  The Buyer shall have no obligation with respect to any severance obligation arising out of or in connection with any Employee’s relationship with the Company or its Subsidiaries, and any such obligation shall be the obligation of the Company or such Subsidiary; provided, however, that if an Employee’s employment with the Company or its Subsidiaries is terminated and such Employee is

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subsequently hired by (or becomes a consultant to) Buyer or one of its Affiliates within ninety (90) days following Closing, then Buyer shall reimburse the Company for all cash severance costs incurred by the Company or its Subsidiaries in connection with such Employee’s termination of employment with the Company or its Subsidiaries to the extent consistent in all respects with the severance arrangement covering such Employee as of immediately prior to the date hereof, as set forth on Section 4.15(d) of the Company Disclosure Letter (and disregarding any amendments that would increase such cash severance that are made on or after the date hereof) (for the avoidance of doubt, any such reimbursement shall not include any liabilities or losses under the WARN Act).

(e)                                  The provisions of this Agreement are for the benefit of the parties to this Agreement only and shall not be construed to grant any rights, as a third party beneficiary or otherwise, to any Person who is not a party to this Agreement, nor shall any provision of this Agreement be deemed to be the adoption of, or an amendment to, any employee benefit plan or arrangement or otherwise limit the right of the Buyer or any of its Affiliates to amend, modify or terminate any employee benefit plan or arrangement at any time and for any reason.

4.16                        Commencement of Chapter 11 Cases; Approval of Plan; Confirmation Order.  Unless otherwise consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed), the Buyer shall, and shall cause each of the other Debtors to:

(a)                                 within five (5) Business Days of the execution of this Agreement, commence the Chapter 11 Cases by filing voluntary petitions for relief under chapter 11 of the Bankruptcy Code (the date of such filing, the “Petition Date”);

(b)                                 on the Petition Date, file with the Bankruptcy Court (i) the Plan and (ii) the Disclosure Statement;

(c)                                  file with the Bankruptcy Court (i) a motion seeking to approve the Disclosure Statement and schedule the confirmation hearing and (ii) a form of confirmation order reasonably acceptable to the Company;

(d)                                 subject to the terms and provisions of this Agreement, diligently pursue confirmation and consummation of the Plan;

(e)                                  reasonably cooperate with the Company and its counsel in connection with any discovery and hearings in connection with this Agreement, the Disclosure Statement or the Plan and any transactions contemplated by such documents;

(f)                                   promptly provide to the Company copies of communications from or sent to creditors or other parties in interest, or summaries of such communications, relating to requests by such creditors or other parties in interest for material modifications or amendments to the Plan, the Disclosure Statement, the Confirmation Order, or the Plan Related Documents;

(g)                                  without duplication or limitation of the foregoing, provide drafts of any proposed modifications, amendments, or changes to the Plan or the Disclosure Statement to the Company and its counsel as soon as reasonably practicable prior to the date on which the

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Debtors intend to file such documents with the Bankruptcy Court (provided that the Buyer shall use its reasonable best efforts to provide to Company the draft of any such document no later than two (2) Business Days before making the contemplated filing of such document) or such other time period agreed to by the Company;

(h)                                 without duplication or limitation of the foregoing, provide drafts of all of the Plan Related Documents to the Company and its counsel as soon as reasonably practicable prior to the date on which the Debtors intend to file such documents with the Bankruptcy Court (provided that the Buyer shall use its reasonable best efforts to provide the draft of any such document to the Company no later than two (2) Business Days before making the contemplated filing of such document) or such other time period agreed to by the Company;

(i)                                     timely file a formal objection and prosecute in good faith such objection to any motion filed with the Bankruptcy Court seeking the entry of an order (A) modifying or terminating the Debtors’ exclusive right to file and/or solicit acceptances of a plan of reorganization, (B) directing the appointment of an examiner with expanded powers or a trustee, (C) converting the Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code, or (D) dismissing the Chapter 11 Cases; and

(j)                                    within ten (10) Business Days after the Petition Date (but, in any event, no later than required for the motion referenced in this subsection to be heard contemporaneously with the approval of the Disclosure Statement), file with the Bankruptcy Court a motion, in form and substance reasonably satisfactory to the Company, seeking approval of the reimbursement obligation of the Buyer referenced in Section 8.13 of this Agreement as an administrative expense of the Debtors’ Chapter 11 Cases under section 503(b) of the Bankruptcy Code, and diligently pursue such motion.

4.17                        Amendments to the Plan, Disclosure Statement, Confirmation Order and Related Documents.  The Buyer shall not amend or modify the Plan, the Disclosure Statement, the Confirmation Order, or any of the Plan Related Documents without the Company’s prior written consent for amendments or modifications (which consent may be provided in the form of electronic mail pursuant to the terms of Section 8.1 below and such consent not to be unreasonably withheld, conditioned or delayed, it being agreed that it would not be reasonable for the Company to object to any such modification, amendment, or change that is consistent with the terms of the Plan, the Disclosure Statement, or the form of confirmation order filed pursuant to Section 4.16(c), as applicable, and the terms of this Agreement; provided that it is agreed that it shall be reasonable for the Company to object to any amendment, modification, or change if such amendment, modification, or change itself, or when taken together with any other amendments, modifications, or changes, adversely affects the Company or impacts the capital structure (either equity or debt) of the Buyer Parent as set forth in the Plan, Disclosure Statement or relevant Plan Related Document).  For the avoidance of doubt, the Buyer Parent shall not amend or modify its Certificate of Incorporation, Bylaws or other governing documents without the Company’s prior written consent in accordance with this Section 4.17; provided that, prior to the Closing, the Buyer shall be permitted to amend its governing documents to declassify Buyer Parent’s board of directors and to satisfy the condition to the Closing set forth in Section 5.3(h); provided further that, the Buyer shall provide the Company with a copy of any such amendments or modifications at least three (3) Business Days before they are proposed to be implemented.

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4.18                        Cooperation from the Company.  Upon request of the Buyer, the Company agrees to (and to cause its Subsidiaries to) use reasonable efforts to (x) assist and cooperate with the Debtors in the Plan solicitation process and/or (y) assist the Debtors in obtaining entry of the Confirmation Order.

4.19                        Sale of Inventory.  Within thirty (30) days after the six (6) month anniversary of the Closing Date and every six (6) months thereafter until and including the thirty six (36) month anniversary of the Closing Date, the Buyer shall deliver to the Company a report (the “Inventory Sales Report”) indicating (i) the amount of each Product sold in the six (6) month period to which such Inventory Sales Report pertains and (ii) with respect to the Transferred Inventory, the amount of inventory of each Product included in the Transferred Inventory that remains to be sold as of the end of such six (6) month period.

4.20                        Notice Regarding Changes.

(a)                                 During the Pre-Closing Period, each party shall promptly inform the other in writing of (i) any change in facts and circumstances that could reasonably be expected to render any of the representations or warranties made herein by such party inaccurate or misleading in any material respect at or prior to the Closing (including any Material Adverse Effect or Buyer Material Adverse Effect, as the case may be), (ii) any material correspondence with any Governmental Entity or any customer, supplier or manufacturer not in the ordinary course of business (it being understood that the Buyer’s compliance with Section 4.16 shall satisfy its obligations under this Section 4.20(a)(ii) with respect to the Chapter 11 Cases), or (iii) any written notice or other written communication from any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated by this Agreement.

(b)                                 For the avoidance of doubt, the delivery of any notice pursuant to this Section 4.17 shall not (x) cure any inaccuracy in any representation or warranty or (y) limit or otherwise affect any remedies available to any Indemnified Party contained in this Agreement (including for purposes of determining whether conditions to Closing have been satisfied or in respect of indemnification rights).

4.21                        Buyer Transaction Expenses.  At least three (3) Business Days prior to the Closing Date, the Buyer shall provide to the Company a statement setting forth the Buyer’s good faith estimate of the Buyer Transaction Expenses as of the Closing Date, together with reasonable supporting documentation thereof.

4.22                        Supplemental Disclosure.

(a)                                 The Company shall, prior to the Closing Date, deliver to the Buyer, updates in writing to: (a) the list of Regulatory Authorizations set forth on Schedule 1.1(a), (b) the list of Transferred Domain Names set forth on Schedule 1.1(c), (c) the list of Transferred Trademarks set forth on Schedule 1.1(d), (d) the list of Transferred Patents set forth on Schedule 1.1(e), (e) the list of Assumed Contracts set forth on Schedule 1.1(j), (f) the list of Permits set forth on Schedule 2.8 of the Company Disclosure Letter, (g) the list of Product Registrations set forth on Schedule 2.10 of the Company Disclosure Letter, (h) the list of

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Products set forth on Schedule 2.11 of the Company Disclosure Letter, and (i) the list of Material Suppliers and Material Wholesalers set forth on Schedule 2.13 of the Company Disclosure Letter, in the case of each of (a) through (i), to the extent required to disclose or take into account facts, matters or circumstances which arise or occur between the date of this Agreement and the Closing Date and where the underlying matter disclosed is required, permitted or contemplated by this Agreement (it being understood that no Assumed Contract may be removed from Schedule 1.1(j) without the Company’s prior written consent).

(b)                                 The Buyer shall, prior to the Closing Date, deliver to the Company, updates in writing to: (a) the list of Buyer Material Contracts set forth on Schedule 3.6 of the Buyer Disclosure Letter, (b) the list of Product Registrations set forth on Schedule 3.11 of the Buyer Disclosure Letter, (c) the list of Buyer Filed NDAs set forth on Schedule 3.12 of the Buyer Disclosure Letter and (d) the list of Buyer Material Suppliers and Buyer Material Wholesalers set for on Schedule 3.14 of the Buyer Disclosure Letter, in the case of each of (a) through (d), to the extent required to disclose or take into account facts, matters or circumstances which arise or occur between the date of this Agreement and the Closing Date and where the underlying matter disclosed is required, permitted or contemplated by this Agreement.

(c)                                  No updated information provided to the Buyer in accordance with Section 4.22(a) or to the Company in accordance with Section 4.22(b) shall be deemed to cure any breach or inaccuracy of any representation, warranty or covenant made in this Agreement.  If any written update (i) to the Company Disclosure Letter is provided to the Buyer or (ii) to the Buyer Disclosure Letter is provided to the Company, in each case fewer than three (3) Business Days prior to the scheduled Closing Date, then the party receiving such written update may elect to defer the Closing Date up to the date that is three (3) Business Days following the date that such update is provided to provide the receiving party with sufficient time to evaluate such information.

4.23                        License to Use the Seller Names and Marks.

(a)                                 Subject to the terms and conditions of this Section 4.23, the Company, on behalf of itself and its Subsidiaries, grants to the Buyer a limited, non-transferable, non-exclusive, fully-paid up, royalty-free license to use the Iroko Marks solely for the purpose of using up Transferred Inventory and any product literature, displays and similar materials related to such Transferred Inventory within twenty four (24) months following the Closing Date in conjunction with the obligations specified in Section 4.23(b).

(b)                                 As soon as practicable following the Closing Date, and in any event within twenty four (24) months following the Closing Date, the Buyer will (i) remove the Iroko ▇▇▇▇ from any internet domain names or other electronic communications vehicles and from the content of any internet websites within the Transferred Assets, and remove all links to any internet domains of the Company from any of the foregoing and (ii) remove or irreversibly cover or modify the Iroko Marks from or destroy any (x) Transferred Inventory and any other inventory, product literature, displays and similar materials bearing the Iroko Marks that are in the possession of the Buyer and (y) any other public facing materials bearing the Iroko Marks (e.g., signage, business cards and stationery) in the possession of the Buyer.

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4.24                        FDA Fees and Inventory.

(a)                                 Prior to the Closing Date, the Company shall pay to the FDA the fees payable to the FDA under the Prescription Drug User Fee Act described on Schedule 4.24(a) of the Company Disclosure Letter (the “Pre-Paid PDUFA Fees”).  Promptly after making such payment and, in any event, prior to the Closing, the Company shall provide evidence reasonably satisfactory to the Buyer that such payment has been made.

(b)                                 On the Closing Date, subject to satisfaction of the Company’s obligations under Section 4.24(a) and delivery of the Transferred Inventory, the Buyer shall issue to the Company an unsecured promissory note in the aggregate principal amount of $4,500,000, in substantially the form attached hereto as Exhibit M (the “Interim Payments Note”), as reimbursement for (i) a portion of the Pre-Paid PDUFA Fees paid by the Company in accordance with Section 4.24(a) and (ii) the costs incurred by the Company and its Subsidiaries to manufacture a portion of the Transferred Inventory.

4.25                        Transition Services.  Each party hereto agrees that, from the date hereof through the Closing, it shall cooperate fully and negotiate in good faith with the other parties in finalizing the schedules to, and services to be provided under (and fees therefor), the Transition Services Agreement.

4.26                        Naproxen, Tivorbex and Zorvolex Matters.  From and after the Closing Date:

(a)                                 Buyer shall (or shall cause one of its Affiliates to) pay to the Company (or a designated Subsidiary of the Company) on a quarterly basis, for so long as there are any payments or proceeds whatsoever arising from a Naproxen Product, a Tivorbex Product and/or a Zorvolex Product, (i) five percent (5%) of the Net Sales; plus (ii) in the event of a Sublicense, or at the election of Buyer, either (A) fifty percent (50%) of the minimum royalties and all other royalty revenues from the Sublicense(s) or (B) $5,000,000 plus five percent (5%) of minimum royalties and all other royalty revenues from the Sublicense(s).

(b)                                 On or prior to the thirtieth (30th) day following the last day of each calendar quarter with respect to which a payment is due pursuant to Section 4.26(a), Buyer shall deliver to the Company (or a designated Subsidiary of the Company) a written notice, certified by an executive officer of the Buyer, setting forth the Net Sales arising from Naproxen Product, Tivorbex Product and/or Zorvolex Product as of the end of such quarter and Buyer’s determination of the amount of the applicable payment due, together with the payment determined by the Buyer to the Company (or to a designated Subsidiary of the Company); provided that, with respect to the first calendar quarter following the Closing, the certificate shall be limited to the period from and after the Closing Date.

(c)                                  Buyer shall permit independent auditors, identified by the Company (or a designated Subsidiary of the Company), no more than once during any calendar year, upon no less than one (1) weeks’ advance notice and at such reasonable times and intervals and to such reasonable extent as the Company shall request, an opportunity to examine and have access to the books, records, personnel and workpapers of Buyer in respect of matters relating to royalty

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payments made pursuant to this Section 4.26, for purposes of verifying such payments.  Buyer shall keep, and shall require its Affiliates to keep, for three (3) years from the date of each royalty payment made pursuant to this Section 4.26, complete and accurate records to allow the royalty payment to be determined accurately.

(d)                                 In the event there is a dispute regarding the royalty payment calculation, Buyer and the Company shall cooperate in good faith to resolve such dispute as promptly as practicable.  If Buyer and the Company are unable to resolve any such dispute within twenty (20) days (or longer if Buyer and the Company shall mutually agree in writing) of Buyer’s receipt of written notice of such dispute from the Company, such dispute shall be resolved by an internationally recognized firm of independent certified public accountants selected by the Company, with input from Buyer, and such determination shall be final and binding on the parties.  Any expenses relating to the efforts of the independent certified public accountants shall be borne by the party that is decided against in the dispute.  The accountants shall be instructed to use reasonable best efforts to deliver to Buyer and the Company a written report setting forth the resolution of each disputed matter within sixty (60) days of submission of the applicable dispute to it and, in any case, as promptly as practicable after such submission.  Any expenses related to the engagement of the accountants in respect of its services pursuant to this Section 4.26(d) with respect to each dispute matter shall be borne by the party that is decided against in the dispute.

(e)                                  Buyer shall use commercially reasonable diligence to develop, commercialize, market and sell the Naproxen Product, the Tivorbex Product and the Zorvolex Product in accordance with the iCeutica License.

(f)                                   All overdue royalty payments pursuant to this section shall be paid as soon as possible by Buyer, plus a late charge equal to two percent (2%) per annum above the LIBOR Rate on the last Business Day of the quarter on which such payments were to be made.  Interest shall be calculated from the last day on which such royalty was payable.  Any portion of such payments that are being contested in accordance with Section 4.26(d) shall not be considered overdue.

(g)                                  Upon reasonable written notice, Buyer shall furnish or cause to be furnished to the Company (or a designated Subsidiary of the Company), during normal business hours, such information and assistance relating to the Naproxen Product, the Tivorbex Product and/or Zorvolex Product as is reasonably requested and necessary for financial reporting, legal, regulatory, and accounting matters, in preparation and filing of any tax returns or the defense of any tax claim or assessment.

(h)                                 The Buyer shall inform the Company promptly of any infringement claims of which the Buyer has knowledge relating to the Naproxen Product, Tivorbex Product and/or Zorvolex Product.  To the extent permitted under the iCeutica License, the Buyer shall use commercially reasonable efforts to pursue all reasonable infringement claims, or cause such commercially reasonable efforts to be pursued, to non-appealable final judgment. To the extent that Buyer is successful in prosecuting any such infringement claim for the Naproxen Product, the Tivorbex Product and/or Zorvolex Product, any recoveries arising from such infringement claim(s) shall be included in the calculation of Net Sales and Buyer shall pay, or cause to be

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paid, to the Company (or a designated Subsidiary of the Company) a royalty payment, calculated in accordance with Sections 4.26(a) and (b) on the date of resolution by a final decision of a governmental entity of competent jurisdiction from which no further appeal is possible, after the reimbursement of out-of-pocket legal fees and expenses incurred in connection with such infringement claim.

(i)                                     The Buyer and the Company acknowledge and agree that the Buyer’s payments under this Section 4.26 are intended to compensate the Company for royalty payments due and payable by the Company for the Naproxen Product, the Tivorbex Product and/or the Zorvolex Product, and that if these royalty obligations are terminated or discharged in any manner, then the Company shall provide the Buyer with prompt written notice thereof and the Buyer’s obligations under this Section 4.26 shall be accordingly terminated or discharged, as applicable.  To the extent of any payment received by the Company under Section 4.26, the Company shall, in accordance with its obligations under the Naproxen Product, the Tivorbex Product and/or the Zorvolex Product, forward such payment to the party owed such payment and provide prompt written notice to the Buyer that payment has been made.  The Company shall within two (2) Business Days of receipt (or sending, as applicable) of a written communication with any counterparty regarding the royalty obligations under the Naproxen Product, the Tivorbex Product and/or the Zorvolex Product provide the Buyer with a copy of such communication.

4.27                        CRG Contribution.  The Company acknowledges that CRG has agreed following the date of this Agreement to contribute, lend or advance to, or otherwise invest in, the Company and/or any Subsidiary of the Company, an aggregate amount of $7,500,000 in cash (the “Contribution”).

4.28                        Current Litigation.  The parties acknowledge and agree that, promptly following the Closing, the Buyer shall assume control and all costs of the pending actions listed on Schedule 4.28, which relate to the Transferred Assets (the “Pending Actions”) to the same extent then controlled and funded by the Company.  Accordingly, Buyer and the Company share a common interest in the successful prosecution of the Pending Actions at least as of the date of this Agreement. Prior to the Closing, the parties shall use reasonable efforts to ensure an orderly transition of the Pending Actions from the Company to the Buyer, including by the Company providing copies of files and correspondence relating to the Pending Actions as well as access to legal counsel representing the Company in the Pending Actions. Based on their common interest in the outcome of the Pending Actions, the parties, their counsel and their consultants, agents and representatives desire to share privileged communications without waiving the attorney-client privilege, work product protection or any other applicable privilege or protection. The parties agree immediately following the Closing to notify the relevant courts in the Pending Actions regarding the termination of the iCeutica license agreement with the Company, the transition of control of the Pending Actions to the Buyer and the Company’s withdrawal from the Pending Actions.

4.29                        China Product Supply.

(a)                                 From and after the Closing, during the term of the China License and Supply Agreement:

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(i)                  upon receipt by the Buyer of one or more written purchase requests from the Company, any of its Subsidiaries, or Sichuan Credit Pharmaceuticals Co., Ltd. in accordance with the China License and Supply Agreement, Buyer shall use its commercially reasonable efforts to supply the Company or such Subsidiary with Zorvolex Product in accordance with the requirements of the China License and Supply Agreement; provided, the Company shall reimburse the Buyer for all reasonable costs and expenses incurred by any Buyer Entity in supplying the Zorvolex Product in accordance with this Section 4.29(a)(i).

(ii)               the Buyer shall not grant rights to any other party to market, distribute or package the Zorvolex Product in China (PRC), Hong Kong or Macau during the term of the China License and Supply Agreement and may only market, distribute and/or package the Zorvolex Product in China (PRC), Hong Kong or Macau, directly or indirectly, through Sichuan Credit Pharmaceuticals Co., Ltd. and in accordance with the terms of the China License and Supply Agreement.

(b)                                 All amounts payable pursuant to Section 4.29(a)(i) shall be payable in arrears by wire transfer of immediately available funds within fifteen (15) Business Days following delivery of a billing statement or invoice reasonably detailing the costs and expenses incurred. Should the Company dispute any portion of any such invoice, the Company shall pay in full all amounts not in dispute and notify the Buyer in writing of the nature and basis of the dispute.

(c)                                  The Company shall not amend or renew, or permit the amendment or renewal of, the China License and Supply Agreement without the Buyer’s prior written consent, which shall not be  unreasonably witheld.

ARTICLE V
CONDITIONS TO THE PURCHASE AND SALE

5.1                               Conditions to Each Party’s Obligation to Effect the Closing.  The respective obligations of each party to this Agreement to consummate the transactions contemplated hereby shall be subject to the satisfaction on or prior to the Closing Date of the following conditions:

(a)                                 Governmental Approvals.  All authorizations, consents, orders or approvals of, or declarations or filings with, or expirations of waiting periods imposed by, any Governmental Entity in connection with the consummation of the transactions contemplated by this Agreement, shall have been filed, been obtained or occurred, including, without limitation, the expiration or termination of any applicable waiting period under the HSR Act.

(b)                                 No Injunctions.  No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any order, executive order, stay, decree, judgment or injunction (preliminary or permanent) or statute, rule or regulation which is in effect and which has the effect of making the transactions contemplated by this Agreement illegal or otherwise prohibiting consummation of the transactions contemplated by this Agreement.

(c)                                  FDA Letters.  The Buyer and the Company shall, on the Closing Date, have filed, or caused to be filed, through the electronic gateway, the Buyer FDA Letters and the Company FDA Letters, respectively, with the FDA.

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(d)                                 Plan and Confirmation Order. The Plan shall have been confirmed by the Bankruptcy Court pursuant to the Confirmation Order, the Confirmation Order shall be in full force and effect and shall not have been stayed, modified or vacated, and the effective date of the Plan shall have occurred on the same date as the Closing Date.

5.2                               Additional Conditions to Obligations of the Buyer. The obligations of the Buyer to consummate the transactions contemplated hereby shall be subject to the satisfaction on or prior to the Closing Date of each of the following additional conditions, any of which may be waived, in writing, exclusively by the Buyer:

(a)                                 Representations and Warranties.  The representations and warranties of the Company set forth in this Agreement that are qualified by any reference to materiality or Material Adverse Effect shall each be true and correct in all respects as of the Closing Date with the same force and effect as though made on and as of the Closing Date (except to the extent that any representation or warranty is limited by its terms to a specific date or range of dates (in which case such representation and warranty need only be true and correct on the date or during the range of dates so specified)) and all other representations and warranties of the Company shall each be true and correct in all material respects as of the Closing Date with the same force and effect as though made on and as of the Closing Date (except to the extent that any representation or warranty is limited by its terms to a specific date or range of dates (in which case such representation and warranty need only be true and correct on the date or during the range of dates so specified)) and the Buyer shall have received a certificate signed on behalf of the Company by an authorized officer of the Company to such effect.

(b)                                 Performance of Obligations of the Company.  The Company and its Subsidiaries shall have performed in all material respects all obligations required to be performed by the Company or its Subsidiaries under this Agreement on or prior to the Closing Date and the Buyer shall have received a certificate signed on behalf of the Company by an authorized officer of the Company to such effect.

(c)                                  Release of Liens.  All Liens (except Permitted Liens) on the Transferred Assets shall have been released and the Buyer shall have received satisfactory evidence thereof.

(d)                                 Regulatory.  With respect to each Product, no voluntary drug recall shall have been initiated or agreed to by the Company or any of its Subsidiaries and no drug recall shall have been requested or mandated by any Governmental Entity.

(e)                                  Consents.  All of the consents set forth in Schedule 5.2(e) (the “Company Required Consents”) shall have been obtained by the Company and shall be in full force and effect, and the Buyer shall have been furnished with written evidence of the granting of such consents.

(f)                                   Deliverables.  The Buyer shall have received from the Company the items to be delivered pursuant to Section 1.6(c)(i).

(g)                                  Material Adverse Effect.  Since the date of this Agreement, there has not occurred any event that, individually or in the aggregate with other events, has had, or would reasonably be expected to have, a Material Adverse Effect.

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(h)                                 Employees. The Company or its applicable Subsidiary shall have terminated the employment of the Transferred Employees effective the day immediately prior to Closing.

(i)                                     Contribution.  The Company shall have received the Contribution and the Buyer shall have received reasonably satisfactory evidence thereof.

(j)                                    Redemption.  The Company Redemption shall have been completed and the Buyer shall have received reasonably satisfactory evidence thereof.

(k)                                 iCeutica License.  All of the conditions to effectiveness contained in Section 2.2 of the iCeutica License other than the Closing under this Agreement shall have been satisfied or waived in writing by iCeutica.

5.3                               Additional Conditions to Obligations of the Company.  The obligation of the Company to consummate the transactions contemplated hereby shall be subject to the satisfaction on or prior to the Closing Date of each of the following additional conditions, either of which may be waived, in writing, exclusively by the Company:

(a)                                 Representations and Warranties.  The representations and warranties of the Buyer set forth in this Agreement that are qualified by any reference to materiality or Buyer Material Adverse Effect shall each be true and correct in all respects as of the Closing Date with the same force and effect as though made on and as of the Closing Date (except to the extent that any representation or warranty is limited by its terms to a specific date or range of dates (in which case such representation and warranty need only be true and correct on the date or during the range of dates so specified)) and all other representations and warranties of the Buyer shall each be true and correct in all material respects as of the Closing Date with the same force and effect as though made on and as of the Closing Date (except to the extent that any representation or warranty is limited by its terms to a specific date or range of dates (in which case such representation and warranty need only be true and correct on the date or during the range of dates so specified)) and the Company shall have received a certificate signed on behalf of the Buyer by an authorized officer of the Buyer to such effect.

(b)                                 Performance of Obligations of the Buyer.  The Buyer shall have performed in all material respects all obligations required to be performed by it under this Agreement on or prior to the Closing Date and the Company shall have received a certificate signed on behalf of the Buyer by an authorized officer of the Buyer to such effect.

(c)                                  Regulatory.  With respect to each of the Buyer Products, no voluntary drug recall shall have been initiated or agreed to by any Buyer Entity and no drug recall shall have been requested or mandated by any Governmental Entity.

(d)                                 [Reserved]

(e)                                  Deliverables.  The Company shall have received from the Buyer the items to be delivered pursuant to Section 1.6(b).

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(f)                                   Material Adverse Effect.  Since the date of this Agreement, there has not occurred any event that, individually or in the aggregate with other events, has had, or would reasonably be expected to have, a Buyer Material Adverse Effect.

(g)                                  Plan, Confirmation Order and Related Documents. The Plan, the Disclosure Statement, the Plan Related Documents, and the Confirmation Order shall be in form and substance reasonably acceptable to the Company (such acceptance not to be unreasonably delayed, conditioned or withheld, it being agreed that it would not be reasonable for the Company to object to (i) any plan that is in form and substance materially consistent with the form of plan attached hereto as Exhibit H (as amended, modified or supplemented from time to time in accordance with this Agreement) and with the terms of this Agreement, (ii) any disclosure statement that is in form and substance materially consistent with the form of disclosure statement attached hereto as Exhibit I (as amended, modified or supplemented from time to time in accordance with this Agreement) and with the terms of this Agreement, (iii) any confirmation order that is in form and substance materially consistent with the form of confirmation order filed pursuant to Section 4.16(c) and with the terms of this Agreement, or (iv) any Plan Related Document that is consistent with the terms of the Plan and this Agreement, and no such documents shall have been amended or modified except in accordance with this Agreement.

(h)                                 Buyer Governing Documents. At Closing, Buyer’s Certificate of Incorporation shall include the following terms: (i) the board of directors of the Buyer Parent shall consist of no more than seven (7) directors and (ii) following the Closing Date, directors shall be elected to the board of directors of the Buyer Parent by plurality vote of the stockholders of Buyer Parent.  At Closing, the directors of the Buyer Parent shall be as set forth in Section 8(b) of the Stockholders Agreement attached hereto as Exhibit E.

(i)                                     Buyer Parent Cash Balance; Buyer Current Liabilities. The Company shall have received evidence reasonably satisfactory to it that (i) the aggregate amount of cash, cash equivalents and marketable securities of Buyer Parent and its Subsidiaries (the “Buyer Parent Cash Balance”) is equal to at least $10,200,000, minus a buffer of fifteen percent (15%) of that amount, as of the Closing Date and (ii) the Buyer Current Liabilities will be equal to or less than the Current Liabilities Target, as of the Closing Date, in each case after giving effect to the Plan.  For the avoidance of doubt, for purposes of calculating the Buyer Parent Cash Balance, any cash held in the Professional Fee Escrow Account (as defined in the Plan) to be funded in accordance with the Plan or any cash to be distributed pursuant to the Plan (whether or not such cash is distributed on the Closing Date) shall be excluded from the Buyer Parent Cash Balance.

(j)                                    Buyer Parent Indebtedness.  The Company shall have received evidence reasonably satisfactory to it that, after giving effect to the Plan, Buyer Parent shall have no outstanding Indebtedness other than (1) the aggregate principal amount of $95,000,000 of New Senior Secured Notes and (2) the Interim Payments Note.

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ARTICLE VI
INDEMNIFICATION

6.1                               Indemnification by the Company.   Subject to the terms and conditions of this Article VI, from and after the Closing, the Company shall indemnify and hold harmless the Buyer, its Affiliates and their respective successors and permitted assigns (the “Buyer Indemnified Parties”) from and against, and pay as incurred on behalf of (or reimburse), any and all losses, including diminution in value, damages, obligations, liabilities, Taxes, fines, fees, costs, expenses, penalties, interest, awards, judgments, claims, demands, actions, suits and settlements of any kind, including reasonable attorneys’ and consultants’ fees and expenses and other reasonable legal costs and expenses incurred in the prosecution, investigation, remediation, defense or settlement (collectively, “Damages”) (provided, that an Indemnified Party shall only be entitled to Damages for diminution of value with respect to any matter properly subject to indemnification under this Article VI to the extent such Indemnified Party demonstrates that the matter was a direct cause of, or directly resulted in, the diminution in value), resulting from, based on or arising out of:

(a)                                 the inaccuracy or any breach of any of the representations or warranties of the Company contained in Article II of this Agreement as of the date hereof or as if such representation or warranty was made on and as of the Closing Date (unless another date is specified in such representation or warranties, in which case any inaccuracy or breach of such representation and warranty as of such date);

(b)                                 any breach or failure to perform by the Company of any covenant or agreement contained in this Agreement;

(c)                                  any Excluded Liabilities;

(d)                                 any Excluded Assets; or

(e)                                  the enforcement of the Buyer Indemnified Parties’ rights hereunder.

6.2                               Indemnification by the Buyer.  Subject to the terms and conditions of this Article VI, from and after the Closing, the Buyer shall indemnify and hold harmless the Company, its stockholders, its Affiliates and their respective successors and permitted assigns (the “Company Indemnified Parties”) from and against, and pay as incurred on behalf of (or reimburse), any and all Damages resulting from, based on or arising out of:

(a)                                 the inaccuracy or any breach of any of the representations or warranties of the Buyer contained in Article III of this Agreement as of the date hereof or as if such representation or warranty was made on and as of the Closing Date (unless another date is specified in such representation or warranties, in which case any inaccuracy or breach of such representation and warranty as of such date);

(b)                                 any breach or failure to perform by the Buyer of any covenant or agreement contained in this Agreement;

(c)                                  any Assumed Liabilities;

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(d)                                 any liabilities arising from the conduct or operation of the Business by the Buyer following the Closing, other than liabilities arising from any Excluded Liability;

(e)                                  any liabilities arising from third party claims in the Chapter 11 Cases alleging any misstatement or omission in the Disclosure Statement or challenging the consummation of the Plan or the transactions contemplated thereby, including any fees and expenses incurred in connection with any discovery sought from or motions or adversarial proceedings filed against any Company Indemnified Party or any objection to the motion seeking approval of the reimbursement obligation of the Buyer referenced in Section 8.13 of this Agreement (but excluding costs incurred by any Company Indemnified Party to participate in or monitor, the Chapter 11 Cases (including attending any hearings for the purpose of monitoring or filing any pleadings unrelated to any such third party claim)); or

(f)                                   the enforcement of the Company Indemnified Parties’ rights hereunder.

6.3                               Claims for Indemnification.

(a)                                 Third Party Claims.  All claims for indemnification made under this Agreement resulting from, related to or arising out of a third-party claim against an Indemnified Party (a “Third Party Claim”) shall be made in accordance with the following procedures.  A Person entitled to indemnification under this Article VI (an “Indemnified Party”) shall give prompt written notification to the Indemnifying Party (a “Third Party Claim Notice”) of the commencement of any action, suit or proceeding relating to a third party claim for which indemnification may be sought or, if earlier, upon the assertion of any such claim by a third party in any written claim or demand; provided, that the failure to timely deliver a Third Party Claim Notice shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party shall have been actually and materially prejudiced by such failure.  For purposes of this Agreement, the term “Indemnifying Party” means (i) in the case of a claim for indemnification by the Buyer, the Company and (ii) in the case of a claim for indemnification by the Company, the Buyer.  Within ten (10) Business Days after delivery of such Third Party Claim Notice, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense with counsel reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party shall not be entitled to defend any Third Party Claim (a) that seeks remedies other than money damages without the written agreement of the Indemnified Party, or if defense of such Third Party Claim could reasonably be expected to adversely affect the Indemnified Party or its Affiliates, other than as a result of monetary damages for which it would be entitled to relief under this Agreement, (b) involving criminal actions or allegations of criminal conduct, or claims reasonably expected to result in claims for specific performance, injunction or other equitable or non-monetary relief, (c) unless the Indemnifying Party conducts the defense of the Third Party Claim in a commercially reasonable and diligent manner, or (d) that relates to Taxes or is brought by a Governmental Entity.  If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right to participate in the defense thereof and to employ counsel separate from the counsel employed by the Indemnifying party, it being understood, however, that the Indemnifying Party shall control such defense, and the Indemnified Party shall not be entitled to indemnification for legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof unless incurred at the request of the Indemnifying Party; provided, that, subject to the limitations in this Article VI, the

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Indemnified Party shall be entitled to indemnification for the fees and expenses of counsel employed by the Indemnified Party for any period following the ten (10) Business Day period referenced above during which the Indemnifying Party has not assumed the defense thereof (or otherwise has not conducted such defense actively and diligently). If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense at the Indemnifying Party’s sole expense (to the extent indemnifiable under this Article VI and subject to the limitations contained herein) and the reasonable fees and expenses of counsel to the Indemnified Party solely in connection therewith shall be considered “Damages” for purposes of this Agreement. In no event shall the Indemnifying Party be responsible for the fees and expenses of more than one (1) counsel for the Indemnified Party (in addition to one (1) local counsel).  The party controlling such defense shall keep the other party advised of the status of such action, suit, proceeding or claim and the defense thereof and shall consider in good faith recommendations made by the other party with respect thereto.  The Indemnified Party shall not agree to any settlement of such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party.  Except with the prior written consent of the Indemnified Party, which may be withheld in the Indemnified Party’s sole discretion, the Indemnifying Party shall not agree to any settlement of such action, suit, proceeding or claim that (i) does not include a complete release of the Indemnified Party from all liability with respect thereto, (ii) imposes any liability or obligation on the Indemnified Party, (iii) would impose a consent order, injunction or decree that would restrict the future activity or conduct of the Indemnified Party or (iv) would result in a finding or admission of a violation of Law by the Indemnified Party that would have an adverse effect on the Indemnified Party.  For the avoidance of doubt, the Indemnifying Party may agree to any settlement that satisfies clauses (i) through (iv) of the preceding sentence without the Indemnified Party’s consent.  The amount of any Third Party Claim resolved pursuant to this Section 6.3(a) shall, to the extent indemnifiable under this Article VI and subject to the limitations contained herein, be payable by the Indemnifying Party to the Indemnified Party by wire transfer of immediately available funds.

(b)                                 Procedure for Claims Not Involving Third Parties.  An Indemnified Party wishing to assert a claim for indemnification under this Article VI that does not involve a Third Party Claim shall deliver to the Indemnifying Party a written notice (a “Claim Notice”) which contains a description in reasonable detail of such claim and the amount (the “Claim Amount”) of any Damages that the Indemnified Party has sustained or reasonably anticipates that it will sustain and; provided, that the failure to timely deliver a Claim Notice shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party shall have been prejudiced by such failure.  Within thirty (30) days after delivery of a Claim Notice, the Indemnifying Party shall deliver to the Indemnified Party a written response in which the Indemnifying Party shall (A) agree that the Indemnified Party is entitled to receive the Claim Amount (in which case such response shall be accompanied by a payment to the Indemnified Party of the Claim Amount by the Indemnifying Party by wire transfer of immediately available funds), (B) agree that the Indemnified Party is entitled to receive part, but not all, of the Claim Amount (the amount so agreed in (A) or (B), the “Agreed Amount”) (in which case such response shall be accompanied by a payment to the Indemnified Party of the Agreed Amount by the Company by wire transfer of immediately available funds) or (C) contest that the Indemnified Party is entitled to receive any of the Claim Amount.  If such dispute is not resolved within thirty (30) days following the delivery by the Indemnifying Party of such response, the

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Indemnifying Party and the Indemnified Party shall each have the right to submit such dispute to a court of competent jurisdiction in accordance with the provisions of Section 8.11.

6.4                               Survival.

(a)                                 The representations and warranties of the Company and the Buyer set forth in this Agreement shall survive the Closing and the consummation of the transactions contemplated hereby and continue until eighteen (18) months after the Closing Date, at which time they shall expire, other than (i) the representations and warranties of the Company contained in Section 2.1 (Organization, Standing and Power), Section 2.2 (Authority; No Conflict), Sections 2.3(a) (Transferred Assets), Section 2.12 (Taxes) and Section 2.19 (Brokers) (the “Company Fundamental Representations”), which shall survive indefinitely, except for the representations and warranties of the Company contained in Section 2.12 (Taxes), which shall survive until ninety (90) days following the expiration of the statute of limitations applicable to the underlying matters covered by such provision, and (ii) the representations and warranties of Buyer contained in Section 3.1 (Organization, Standing and Power), Section 3.2 (Capital Structure), Section 3.3 (Authority; No Conflict), Section 3.4(a) and (c) (Buyer’s Assets; Transferability of Consideration), Section 3.13 (Taxes), and Section 3.19 (Brokers) (the “Buyer Fundamental Representations”), which shall survive indefinitely, except for the representations and warranties of the Buyer contained in Section 3.13 (Taxes), which shall survive until ninety (90) days following the expiration of the statute of limitations applicable to the underlying matters covered by such provision. The covenants and agreements of the Company and the Buyer set forth in this Agreement shall survive the Closing and the consummation of the transactions contemplated hereby until they are satisfied in accordance with their terms.  Notwithstanding anything in this Agreement to the contrary, claims for fraud may be asserted at any time following the Closing and shall survive indefinitely.  The parties specifically and unambiguously intend that the survival periods that are set forth in this Section 6.4 replace any statute of limitations that would otherwise be applicable.

(b)                                 Notwithstanding the foregoing, the representations and warranties hereunder shall survive to the extent an indemnification claim is asserted prior to the expiration as provided in Section 6.4(a) until such time as any claim so asserted has been finally resolved, but only for the purpose of the resolution of such claims.

6.5                               Limitations.

(a)                                 The amount of Damages recoverable by an Indemnified Party under this Article VI with respect to an indemnity claim shall be reduced by the amount of any insurance payment actually received by such Indemnified Party (or an Affiliate thereof) with respect to such indemnity claim, net of the amount of any reasonably projected increase in insurance premiums directly attributable to such indemnity claim (net of any expenses (including any Taxes) associated with claiming or receiving such insurance recovery)) (the “Insurance Recovery”).  If an Indemnified Party (or an Affiliate) receives any Insurance Recovery in connection with any claim for Damages for which it has already received an indemnification payment from the Indemnifying Party, it shall pay to the Indemnifying Party, within 60 days of receiving such Insurance Recovery, an amount equal to the excess, if any, of (x) the amount previously received by the Indemnified Party from the Indemnifying Party under this Article VI

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with respect to such claim plus the amount of any Insurance Recovery with respect to such claim over (y) the amount of Damages with respect to such claim; provided, that, (i) no Indemnified Party shall be subject to any obligation to bring an Action against its insurance company in order to pursue recovery in respect of any indemnifiable Damages under any such insurance policy and (ii) no indemnification payment payable hereunder shall be conditioned, withheld, or delayed as a result of any Indemnified Party not having sought, realized or received any insurance proceeds.

(b)                                 The Company shall not be obligated to pay any amounts for indemnification in respect of claims under Section 6.1(a) until the aggregate amount of such indemnification obligations hereunder exceeds $400,000 (the “Buyer Deductible”), whereupon the Company shall be liable for all indemnifiable Damages incurred by the Buyer in excess of the Buyer Deductible; provided, however, that the foregoing limitation shall not apply to claims for breach or inaccuracy of the Company Fundamental Representations or the representations and warranties in Section 2.3(b) or claims for fraud.  Notwithstanding the foregoing, the Company shall not be obligated to pay any amounts of Damages in respect of any claim under Section 6.1(a) unless such Damages in respect of such claim (or aggregated Damages in respect of claims arising out of or resulting from the same or substantially similar facts, events or circumstances) exceed $50,000; provided, however, that the foregoing limitation shall not apply to claims for breach or inaccuracy of the Company Fundamental Representations or the representations and warranties in Section 2.3(b) or claims for fraud.

(c)                                  The Buyer shall not be obligated to pay any amounts for indemnification in respect of claims under Section 6.2(a) until the aggregate amount of such indemnification obligations hereunder exceeds $400,000 (the “Company Deductible”), whereupon the Buyer shall be liable for all indemnifiable Damages incurred by the Company in excess of the Company Deductible; provided, however, that the foregoing limitation shall not apply to claims for breach or inaccuracy of Buyer Fundamental Representations or claims for fraud.  Notwithstanding the foregoing, the Buyer shall not be obligated to pay any amounts of Damages in respect of any claim under Section 6.2(a) unless such Damages in respect of such claim (or aggregated Damages in respect of claims arising out of or resulting from the same or substantially similar facts, events or circumstances) exceed $50,000; provided, however, that the foregoing limitation shall not apply to claims for breach or inaccuracy of Buyer Fundamental Representations or claims for fraud.

(d)                                 The aggregate liability of an Indemnifying Party under this Article VI shall not exceed (i) in respect of claims for indemnification pursuant to Section 6.1(a) (other than with respect to the Company Fundamental Representations, the representations and warranties in Section 2.3(b) or fraud) or in respect of claims for indemnification pursuant to Section 6.2(a) (other than with respect to the Buyer Fundamental Representations or fraud), $5,000,000 (the “Cap”), (ii) in respect of any other claims for indemnification (other than with respect to the Authority Representations, the representations and warranties in Section 2.3(b), or fraud), $30,000,000, (iii) in respect of claims for indemnification with respect to representations and warranties in Section 2.3(b), $10,000,000, and (iv) in respect of claims for indemnification pursuant to Section 6.1(a) (with respect to the Company’s Authority Representations) or Section 6.2(b) (with respect to the Buyer’s Authority Representations), $80,000,000; provided, that nothing in this Section 6.5(d) shall apply to any Damages arising from any fraud.

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(e)                                  For purposes of determining Damages incurred in connection with any breach or inaccuracy of any representation and warranty (but not the existence of such breach or inaccuracy), any and all references to “material,” “materiality,” “Material Adverse Effect” or other correlative terms shall be disregarded; provided, that, reference to “Material Adverse Effect” in Section 2.15(a) and “Buyer Material Adverse Effect” in Section 3.16(a) shall not be so disregarded.

(f)                                   Except for such Damages as are expressly included in the definition thereof, no party hereto shall be entitled to indemnification for any consequential damages that are not reasonably foreseeable or punitive damages, in each case, except if and to the extent any such damages are payable by an Indemnified Party pursuant to a Third Party Claim, and except in the case of fraud.

(g)                                  Except with respect to claims related to fraud, for equitable relief or arising under the Ancillary Agreements, the rights of the Indemnified Parties under this Article VI shall be the sole and exclusive remedies of the Indemnified Parties with respect to claims under, or otherwise relating to the transactions that are the subject of, this Agreement.

(h)                                 Other than with respect to fraud, no Indemnifying Party shall have any liability under this Article VI for any inaccuracy in or breach of a representation or warranty by such Indemnifying Party in this Agreement to the extent that: (a) with respect to the Company as the Indemnifying Party, any of ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ or ▇▇▇▇▇ ▇▇▇▇▇▇▇ had actual knowledge prior to the date of the Agreement of all material facts related to such matter and understood prior to the date of the Agreement that such facts constituted a breach or inaccuracy of such representation or warranty and that the Company did not have actual Knowledge of all such material facts related to such matter (it being understood that materials included in the Company’s due diligence data room prior to the date of the Agreement shall be deemed to be within the actual Knowledge of the Company for purposes of this clause (a)) and (b) with respect to the Buyer as the Indemnifying Party, either of ▇▇▇▇ ▇▇▇▇▇ or ▇▇▇ ▇▇▇▇ had actual knowledge prior to the date of the Agreement of all material facts related to such matter and understood prior to the date of the Agreement that such facts constituted a breach or inaccuracy of such representation or warranty and that the Buyer did not have actual Knowledge of all such material facts related to such matter (it being understood that materials included in the Buyer’s due diligence data room prior to the date of the Agreement shall be deemed to be within the actual Knowledge of the Buyer for purposes of this clause (b)).  The right to indemnification under this Article VI shall not be affected by any investigation conducted by any Indemnified Party after the date hereof or Knowledge acquired (or capable of being acquired) after the date hereof by the Indemnified Party or any other Person.

(i)                                     For the avoidance of doubt, under no circumstances will any party be entitled to recover for the same Damages more than once under this Agreement or under more than one provision of this Agreement.

6.6                               Right to Set-Off.

(a)                                 Subject to Section 6.6(b), the Buyer and its Affiliates shall have the right to recoup and/or set off amounts owed under the Notes Consideration (including any amounts

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payable on the New Senior Secured Notes and any amounts payable under the New Notes Royalty Agreement), the Royalty Payments and the Interim Payments Note Consideration against any Agreed Amount or Damages as finally resolved pursuant to the terms of this Agreement which may be owed to the Buyer Indemnified Parties; provided, however, that in the first twelve (12) month period following the Closing, such right of recoupment and/or set off shall be limited to eighty percent (80%) of the total amount owed to the Company or any of its Subsidiaries; provided that prior to the expiration of the eighteen (18) month period following the Closing, the Company shall reimburse the Buyer in cash for the remaining twenty percent (20%) of such total amount to the extent such amount may not be recouped and/or set off in such twelve (12) month period after taking into account the recoupment and/or set off of the aggregate Agreed Amount and Damages owed to the Buyer Indemnified Parties for such twelve (12) month period.  Notwithstanding anything in this Agreement to the contrary, the recoupment and/or set off limitation in the foregoing proviso shall be solely for the benefit of the Company and not to any Transferee of all or any portion of any Notes Consideration.

(b)                                 Any recoupment and/or set off that is exercised by Buyer in accordance with Section 1.5(c)(3), Section 6.6(a) or Section 6.9 against any Person shall be applied (to the extent available at the time of application): (i) first, against any amounts then owing by the Buyer Entities under the Royalty Payments, (ii) second, against any amounts then owing by the Buyer Entities under the New Notes Royalty Agreement, (iii) third, against interest then accrued on the New Senior Secured Notes, (iv) fourth, against interest then accrued on the Interim Payments Note, (v) fifth, against outstanding principal under the Interim Payments Note (including any principal amount then payable) and (vi) six, against the outstanding principal under the New Senior Secured Notes (including any principal amount then payable).  For the avoidance of doubt, in each case, Buyer shall be required to exhaust the amounts set forth on one step of the waterfall described in this Section 6.6(b) before proceeding to any subsequent step.  The right of set-off set forth in this Section 6.6 shall terminate and be of no further force and effect, (i) with respect to the New Senior Secured Notes, on the Business Day immediately following the maturity date of the New Senior Secured Notes in accordance with the terms of the New Senior Secured Notes Indenture, (ii) with respect to the New Notes Royalty Agreement, on the Business Day immediately following the expiration of the term of the royalty under the New Notes Royalty Agreement, (iii) with respect to the Interim Payments Note, on the Business Day immediately following the eighteen (18) month anniversary of the Closing Date and (iv) with respect to the Royalty Payments, on the Business Day immediately following the expiration of the Royalty Term. It is understood and agreed that, notwithstanding any such termination date, to the extent that at any time there are pending claims made by Buyer Indemnified Parties for indemnification pursuant to and in accordance with Article VI, the Buyer and its Affiliates may hold back from paying a portion of any payment due under the New Senior Secured Notes, New Notes Royalty Agreement, and Interim Payments Note or any Royalty Payment in an amount equal to the amount at issue in such pending claims until the final resolution of such claim in accordance with this Agreement and, to the extent indemnifiable under this Article VI, the Buyer and its Affiliates may set-off against any such payment in accordance with the foregoing waterfall in this Section 6.6(b).

(c)                                  The Company acknowledges and agrees, and shall not dispute, and any Permitted Transferee, by execution of a Note Transfer Joinder or a Royalty Consideration Transfer Joinder, as applicable, shall be deemed to have agreed, and shall not dispute, that the

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exercise of any recoupment by the Buyer in accordance with this Agreement shall not be a violation of the automatic stay of section 362 of the Bankruptcy Code (and the Company and any Permitted Transferee hereby waive, to the fullest extent permitted by Law, the applicability of the automatic stay to the exercise by the Buyer of any such recoupment and/or set off).

6.7                               Indemnification Payments.  All indemnification payments made hereunder shall be treated by all parties as adjustments to the Final Purchase Price for Tax purposes unless otherwise required by Law.

6.8                               No Claims Against Buyer Lenders, Company Lenders and Collateral Agent.  Notwithstanding anything herein to the contrary, (a) the Buyer agrees, on behalf of itself and its Affiliates (including the Buyer Entities) and each Representative thereof, that it and its Affiliates and each Representative thereof shall not have any rights or claims against any of the Company Lenders in their capacity as such or the Collateral Agent in connection with this Agreement, the Company Term Loan or the transactions contemplated hereby or thereby, and (b) the Company agrees, on behalf of itself and its Affiliates and each Representative thereof, that it and its Affiliates and each Representative thereof shall not have any rights or claims against any of the Buyer Lenders that are not Buyer Entities in connection with this Agreement, the Company Term Loan or the transactions contemplated hereby or thereby; provided however, that nothing in this Section 6.8 shall be construed to preclude, limit or restrict the enforcement of any right or claim (including any right of set off or recoupment, to the extent set forth in Section 6.6 and Section 6.9) that the Buyer or its Affiliates (including the Buyer Entities) has against an assignee or transferee of (i) all or any portion of any Closing Consideration or (ii) any rights or obligations under this Agreement (including with respect to Royalty Payments).

6.9                               Recoupment.  The parties hereto acknowledge and agree, and any Permitted Transferee, by execution of a Note Transfer Joinder or a Royalty Consideration Transfer Joinder, as applicable, shall be deemed to have agreed, that (i) the defense of recoupment applies to the obligations under this Agreement and any Ancillary Agreement and that the Buyer and its Affiliates shall reduce dollar for dollar the amounts owed under the Notes Consideration (including any amounts payable on the New Senior Secured Notes and any amounts payable under the New Notes Royalty Agreement), the Royalty Payments or the Interim Payments Note Consideration by any Agreed Amount or Damages as finally resolved pursuant to the terms of this Agreement which may be owed to the Buyer Indemnified Parties and (ii) the entry into this Agreement and the Ancillary Agreements constitutes a single transaction and occurrence.  For the avoidance of doubt, the provisions of Section 6.6(b) shall apply to any recoupment exercised by Buyer in accordance with this Section 6.9.  This Agreement (including the schedules and exhibits hereto and the documents and instruments referred to herein that are to be delivered at the Closing) and the Ancillary Agreements shall constitute a “single integrated agreement,” and the transactions contemplated thereby shall constitute a “single integrated transaction,” in each case for purposes of recoupment.  The right of recoupment set forth in this Section 6.9 shall terminate and be of no further force and effect, (i) with respect to the New Senior Secured Notes, on the Business Day immediately following the maturity date of the New Senior Secured Notes in accordance with the terms of the New Senior Secured Notes Indenture, (ii) with respect to the New Notes Royalty Agreement, on the Business Day immediately following the expiration of the term of the royalty under the New Notes Royalty Agreement, (iii) with respect to the Interim Payments Note, on the Business Day immediately following the eighteen (18) month anniversary

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of the Closing Date and (iv) with respect to the Royalty Payments, on the Business Day immediately following the expiration of the Royalty Term. It is understood and agreed that, notwithstanding any such termination date, to the extent that at any time there are pending claims made by Buyer Indemnified Parties for indemnification pursuant to and in accordance with Article VI, the Buyer and its Affiliates may hold back from paying a portion of any payment due under the New Senior Secured Notes, New Notes Royalty Agreement, and Interim Payments Note or any Royalty Payment in an amount equal to the amount at issue in such pending claims until the final resolution of such claim in accordance with this Agreement and, to the extent indemnifiable under this Article VI, the Buyer and its Affiliates may recoup against any such payment in accordance with the waterfall in Section 6.6(b).

ARTICLE VII
TERMINATION

7.1                               Termination.

(a)                                 Notwithstanding anything to the contrary in this Agreement, this Agreement may be terminated and the transactions contemplated by this Agreement abandoned at any time prior to the Closing:

(1)                                 by mutual written consent of the Company and the Buyer;

(2)                                 by the Buyer, if a breach or inaccuracy of any representation or warranty or failure to comply with or perform any covenant or agreement on the part of the Company or its Subsidiaries set forth in this Agreement shall have occurred that would, if continuing on the Closing Date, cause any of the conditions set forth in Section 5.1 or Section 5.2 not to be satisfied, and such breach, inaccuracy, or failure to comply or perform is not cured within thirty (30) days following the Buyer’s delivery of written notice to the Company of such breach, inaccuracy, or failure to comply or perform (it being understood and agreed that there shall be no ability to cure any failure to comply with or satisfy the conditions set forth in Section 5.2(g)); provided that the Buyer may terminate this Agreement pursuant to this Section 7.1(a)(2) only if, at the time of such valid termination, the Buyer is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement;

(3)                                 by the Company, if a breach or inaccuracy of any representation or warranty or failure to comply with or perform any covenant or agreement on the part of the Buyer Entities set forth in this Agreement shall have occurred that would, if continuing on the Closing Date, cause any of the conditions set forth in Section 5.1 or Section 5.3 not to be satisfied, and such breach, inaccuracy, or failure to comply or perform is not cured within thirty (30) days following the Company’s delivery of written notice to the Buyer of such breach, inaccuracy, or failure to comply or perform (it being understood and agreed that there shall be no ability to cure any failure to comply with or satisfy the conditions set forth in Section 5.3(f)); provided that the Company may terminate this Agreement pursuant to this Section 7.1(a)(3) only if, at the time of

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such valid termination, the Company is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; or

(4)                                 by either the Company or the Buyer, if any Governmental Entity (including, for the avoidance of doubt, the Bankruptcy Court) shall have issued a Court Order (a) enjoining or otherwise prohibiting the transactions contemplated by this Agreement, (b) directing the appointment of an examiner with expanded powers or a trustee, (c) converting any of the Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code or (d) dismissing any of the Chapter 11 Cases and, in any case of (a) through (d), such Court Order shall have become final and non-appealable; provided, that (x) no termination may be made under this Section 7.1(a)(4) by the Buyer if the Buyer’s material breach or violation of this Agreement is the primary cause of the issuance of such final and non-appealable Court Order, and (y) no termination may be made under this Section 7.1(a)(4) by the Company if the Company’s material breach or violation of this Agreement is the primary cause of the issuance of such final and non-appealable Court Order.

(b)                                 In the event of termination by a party pursuant to Section 7.1(a), written notice thereof shall forthwith be given to the Buyer (in the case of termination by the Company) or the Company (in the case of termination by the Buyer), in each case, subject to any limitations on notice set forth in Section 7.1(a), and this Agreement shall be terminated, subject in all respects to Section 7.2, without further action by the Company, the Buyer or any other party.

(c)                                  Notwithstanding anything in this Agreement to the contrary, including Section 7.1(a), this Agreement shall automatically terminate without any further notice or action by the Buyer, the Company, or any other party, on the earliest to occur of the following dates:  (i) the date that is five (5) days after the date of this Agreement unless the Petition Date shall have occurred; (ii) the date that is 120 days after the Petition Date unless the Plan has been confirmed by the Bankruptcy Court pursuant to the Confirmation Order and the Confirmation Order is in full force and effect and has not been stayed, modified or vacated; and (iii) January 31, 2019; provided that the Buyer and the Company may mutually agree in writing, each in its sole discretion, to extend any deadlines or milestones referenced in this Section 7.1(c).

7.2                               Effect of Termination.  In the event of the valid termination of this Agreement as provided in Section 7.1, any obligation to complete the Closing or the other transactions contemplated by this Agreement shall terminate and this Agreement forthwith shall become null and void and have no further force or effect, and there shall be no liability on the part of the Company, the Buyer or any other Person, except that, subject in all respect to this Section 7.2, the provisions of this Section 7.2, Section 4.4 (Public Disclosure), Sections 4.5(e) through (g) (Non-Disparagement), Article VIII (Miscellaneous), in each case, shall survive in accordance with their respective terms and conditions; provided, that nothing herein shall relieve any party from liability for any knowing and willful breach of this Agreement by such party, occurring prior to such valid termination (including, without limitation, the failure by the Company or the Buyer to consummate the Closing pursuant to its obligations under this Agreement), or such party’s fraud prior to such valid termination.

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ARTICLE VIII
MISCELLANEOUS

8.1                               Notices.  All notices and other communications hereunder shall be in writing and shall be deemed duly delivered (i) four (4) Business Days after being sent by registered or certified mail, return receipt requested, postage prepaid, (ii) one (1) Business Day after being sent for next Business Day delivery, fees prepaid, via a reputable nationwide overnight courier service or (iii) on the date of confirmation of receipt (or, the first Business Day following such receipt if the date of such receipt is not a Business Day) of transmission by electronic mail, in each case to the intended recipient as set forth below:

(a)                                 if to the Company, to

Iroko Pharmaceuticals Inc.
c/o CR Group LP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Iroko directors
E-mail: ▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇

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

▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇
E-mail: ▇▇▇▇.▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇

(b)                                 if to the Buyer, to

Egalet Corporation

▇▇▇ ▇▇▇ ▇▇ #▇▇▇

▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇, Chief Executive Officer
E-mail: ▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇

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

Dechert LLP

Three ▇▇▇▇▇▇ ▇▇▇▇

▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn:  ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
E-mail: ▇▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇

Any party to this Agreement may give any notice or other communication hereunder using any other means (including personal delivery, messenger service, ordinary mail or facsimile), but no such notice or other communication shall be deemed to have been duly given unless and until it actually is received by the party for whom it is intended.  Any party to this

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Agreement may change the address to which notices and other communications hereunder are to be delivered by giving the other parties to this Agreement notice in the manner herein set forth.

8.2                               Entire Agreement.  This Agreement (including the Schedules and Exhibits hereto and the documents and instruments referred to herein that are to be delivered at the Closing) and the Ancillary Agreements constitute the entire agreement between the parties to this Agreement and supersedes any prior understandings, agreements or representations by or between the parties hereto, written or oral, with respect to the subject matter hereof.

8.3                               No Third Party Beneficiaries.  This Agreement is not intended, and shall not be deemed, to confer any rights or remedies upon any Person other than the parties hereto and their respective successors and permitted assigns, to create any agreement of employment with any Person or to otherwise create any third party beneficiary hereto, except that (i) the Buyer Indemnified Parties and the Company Indemnified Parties are intended beneficiaries of, and shall have the right to enforce, Sections 6.1 and 6.2 hereof, respectively, (ii) the Buyer’s Affiliates are intended beneficiaries of, and shall have the right to enforce, Section 4.5, (iii) the Collateral Agent and the Company Lenders are intended beneficiaries of, and shall have the right to enforce, Sections 4.3(e), 6.8 and 8.4, and (iv) the Buyer Lenders are intended beneficiaries of, and shall have the right to enforce, Section 6.8.

8.4                               Assignment.  Neither this Agreement nor any of the rights, interests or obligations under this Agreement may be assigned or delegated, in whole or in part, by operation of Law or otherwise by either of the parties hereto without the prior written consent of the other party, and any such assignment without such prior written consent shall be null and void, except that (i) the Buyer may transfer or assign its rights and obligations under this Agreement, in whole or in part, from time to time to one (1) or more of its Affiliates; provided that such transfer or assignment shall not relieve the Buyer of its primary liability for its obligations hereunder or enlarge, alter or change any obligation of any other party hereto; (ii) nothing herein shall prohibit in any manner the grant by the Company and each of its Subsidiaries of a security interest in all of their respective rights, title and interest in, to and under this Agreement, the Closing Consideration and the Royalty Consideration to any secured creditor or the Collateral Agent under the Company Term Loan Agreement, provided that no such security interest, grant or pledge permitted pursuant to this Section 8.4 shall relieve the Company of its obligations hereunder (it being understood that the grant of such security interest shall not by itself entitle the Collateral Agent or any lender under the Company Term Loan to exercise the rights of the Company under this Agreement or any Closing Consideration); (iii) nothing herein shall prohibit in any manner the Transfer of any of the Closing Consideration or the Royalty Consideration to a Permitted Transferee, subject to the provisions of applicable Laws; provided that the rights and obligations of a Royalty Recipient may only be Transferred in whole and not in part.  Subject to the preceding sentence, this Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the parties hereto and their respective successors and permitted assigns.  Notwithstanding anything in this Agreement to the contrary, the Company may not Transfer any Notes Consideration or Royalty Consideration without the prior written consent of the Buyer, other than to a Permitted Transferee, subject to the provisions of applicable Laws, and any such Transfer that is made to a Person other than a Permitted Transferee without the prior written consent of the Buyer shall be null and void ab initio.

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8.5                               Specific Performance.  The parties agree that (a) irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof and that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement or to enforce specifically the performance of the terms and provisions hereof, in addition to any other remedy to which they are entitled at law or in equity, without proof of damages and without posting a bond, prior to the valid termination of this Agreement in accordance with Section 7.1, this being in addition to any other remedy to which such other parties are entitled under this Agreement and (b) the right to obtain an injunction, specific performance, or other equitable relief is an integral part of the transactions contemplated by this Agreement and without that right, none of the parties would have entered into this Agreement.  Each party agrees that it will not oppose the granting of an injunction, specific performance and other equitable relief on the basis that the other parties have an adequate remedy at Law.

8.6                               Severability.  Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.  If the final judgment of a court of competent jurisdiction declares that any term or provision hereof is invalid or unenforceable, the parties hereto agree that the court making such determination shall have the power to limit the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified.  In the event such court does not exercise the power granted to it in the prior sentence, the parties hereto agree to replace such invalid or unenforceable term or provision with a valid and enforceable term or provision that will achieve, to the extent possible, the economic, business and other purposes of such invalid or unenforceable term.

8.7                               Counterparts and Signature.  This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original but all of which together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each of the parties hereto and delivered to the other parties, it being understood that the parties hereto need not sign the same counterpart.  This Agreement may be executed and delivered by facsimile or .pdf transmission.

8.8                               Interpretation.  When reference is made in this Agreement to an Article, a Section, an Exhibit or a Schedule, such reference shall be to an Article, a Section, an Exhibit or a Schedule of this Agreement, unless otherwise indicated.  The table of contents, table of defined terms and headings contained in this Agreement are for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement.  The language used in this Agreement shall be deemed to be the language chosen by the parties hereto to express their mutual intent, and no rule of strict construction shall be applied against any party.  Whenever the context may require, any pronouns used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns and pronouns shall include the plural, and vice versa.  Any reference to any federal, state or local Law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise.  Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.”  The words “hereof,”

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“herein” and “hereunder” and words of like import used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.  The words “party” or “parties” shall refer to parties to this Agreement.  The word “or” shall be disjunctive but not exclusive.

8.9                               Governing Law.  This Agreement shall be governed by and construed in accordance with the Laws of the State of Delaware, without giving effect to any choice or conflict of Law provision or rule that would cause the application of Laws of any jurisdiction other than those of the State of Delaware.

8.10                        Amendment; Remedies.  This Agreement may be amended, or any provision of this Agreement may be waived upon the written approval of the Buyer and the Company; provided, that Section 4.3(e), Section 6.8, Section 8.3, Section 8.4, Section 8.9 and this Section 8.10 may not be modified, waived or terminated in a manner that adversely impacts a Company Lender or the Collateral Agent without the prior written consent of the Collateral Agent; and provided, further, that Section 4.3(e), Section 6.8, Section 8.9 and this Section 8.10 may not be modified, waived or terminated in a manner that adversely impacts any Buyer Lender without the prior written consent of such Buyer Lender.  No course of dealing between or among the parties hereto shall be deemed effective to modify, amend or discharge any part of this Agreement or any rights or obligations of any such party or such holder under or by reason of this Agreement.  Except as otherwise provided herein, any and all remedies herein expressly conferred upon a party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity upon such party, and the exercise by a party of any one (1) remedy will not preclude the exercise of any other remedy.

8.11                        Submission to Jurisdiction.  Each of the parties to this Agreement (a) with respect to any action or proceeding arising out of or relating to this Agreement or any of the transactions contemplated by this Agreement, consents to submit itself to the exclusive personal jurisdiction of (i) if such action or proceeding is initiated prior to the Petition Date, the Delaware Court of Chancery (or, only if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any state or federal court within the State of Delaware) or any appellate court thereof (the “Delaware Courts”), (ii) if such action or proceeding is initiated during the period from and after the Petition Date and prior to the effective date of the Plan, the Bankruptcy Court and (iii) if such action or proceeding is initiated on or after the effective date of the Plan, the Delaware Courts, to in any action or proceeding arising out of or relating to this Agreement or any of the transactions contemplated by this Agreement, (b) agrees that all claims in respect of such action or proceeding may be heard and determined in any such court, (c) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court and (d) agrees not to bring any action or proceeding arising out of or relating to this Agreement or any of the transactions contemplated by this Agreement in any other court.  Each of the parties hereto waives any defense of inconvenient forum to the maintenance of any action or proceeding so brought and waives any bond, surety or other security that might be required of any other party with respect thereto.  Any party hereto may make service on another party by sending or delivering a copy of the process to the party to be served at the address and in the manner provided for the giving of notices in Section 8.1.  Nothing in this Section 8.11, however, shall affect the right of any party to serve legal process in any other manner permitted by law.

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

8.13                        Fees and Expenses.  Except as otherwise provided herein, all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such fees and expenses, whether or not the Closing occurs; provided, that, (i) at the Closing or (ii) promptly following the termination of this Agreement under Section 7.1(c) or by the Company as a result of the failure of the Buyer to obtain any required consent of its board of directors, stockholders or debtholders required to consummate the transactions contemplated by this Agreement, the Buyer shall reimburse the Company for such fees and expenses of the Company up to an aggregate amount of $1,500,000.

8.14                        Definitions.

(a)                                 For purposes of this Agreement:

(i)                  “Adverse Event” means, with respect to a product, any undesirable, untoward or noxious event or experience associated with the use, or occurring during or following administration, of such product in humans, occurring at any dose, whether or not expected and whether or not considered related to or caused by such product, including such an event or experience as occurs in the course of the use of such product in professional practice, in a clinical trial, from overdose, whether accidental or intentional, from abuse, from withdrawal or from a failure of expected pharmacological or biological therapeutic action of such product, and including those events or experiences that are required to be reported to the FDA under 21 C.F.R. sections 312.32 or 314.80, as applicable, or to foreign Governmental Entities under corresponding applicable Law outside the United States.

(ii)               “Affiliate” means, with respect to any Person, any other Person that, directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such Person, and the term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities, by contract or otherwise, provided, however, that for purposes of this Agreement (x) none of the Company’s or its Subsidiaries’ stockholders or debtholders or any

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of such stockholders’ or debtholders’ respective Affiliates (other than the Company’s Subsidiaries), portfolio companies (i.e., those that have received investments from such stockholders, debtholders or their Affiliates in the form of debt and/or equity), general partners or any of their respective officers, directors, employees or members shall be deemed an Affiliate of the Company, (y) none of the Buyer Parent’s or its Subsidiaries’ stockholders or debtholders or any of such stockholders’ or debtholders’ respective Affiliates (other than the Buyer Entities) shall be deemed an Affiliate of the Buyer or the Buyer Parent and (z) the Company, its Subsidiaries, their stockholders and debtholders, and their stockholders’ and debtholders’ respective Affiliates, shall not be deemed an Affiliate of the Buyer Parent or any of the Buyer Entities.

(iii)            “Authority Representations” means (A) with respect to the Company, the representations and warranties in (1) the first sentence of Section 2.1(a) and (2) Section 2.2(a) (solely as it applies to the Company and not to the Company’s Subsidiaries) and (B) with respect to the Buyer, the representations and warranties in (1) the first sentence of Section 3.1(a) and (2) Section 3.3(a).

(iv)           “Business” means the business operations of the Company and its Subsidiaries as conducted on the date hereof or as have been conducted since May 23, 2018, including, without limitation, the Exploitation of the Products and the Naproxen Product, but excluding any portion of such business operations related exclusively to the Excluded Assets.

(v)              “Business Day” means any day other than (a) a Saturday or Sunday or (b) a day on which banking institutions located in New York, New York are permitted or required by Law, executive order or governmental decree to remain closed.

(vi)           “Buyer Accounting Principles” shall mean the accounting methods, practices, principles, policies and procedures, with consistent classifications, judgments and valuation and estimation methodologies that were used in the preparation of the Buyer Consolidated Financial Statements.

(vii)        “Buyer Business” means the business operations of Buyer Parent and its Subsidiaries (including the Buyer) as conducted on the date hereof or has been conducted during the twelve (12) month period prior to the date of this Agreement, including, without limitation, the Exploitation of the Buyer Products.

(viii)     “Buyer Current Liabilities” means the Buyer’s and its Subsidiaries’ consolidated current liabilities calculated in accordance with the Buyer Accounting Principles and using only the line items set forth in Schedule 5.3(i); provided that, such line items shall include substantially the same categories of liabilities, including, without limitation, accounts payable, accrued expenses, accrued liabilities and other current liabilities as are reflected in Schedule 5.3(i).

(ix)           “Buyer Intellectual Property” means all Intellectual Property that is owned or used or held for use by Buyer Parent or its Subsidiaries (including the Buyer).

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(x)              “Buyer’s Knowledge” means the actual knowledge of ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇ after due inquiry of the individuals with supervisory responsibility or expertise over or in the matter in question.

(xi)           “Buyer Lenders” means, collectively, the holders of the 13% Notes, the 6.50% notes and the 5.50% Notes.

(xii)        “Buyer Material Adverse Effect” means any change, state of facts, circumstance, event or effect that, individually or in the aggregate, is materially adverse to, (A) the financial condition, properties, assets, liabilities, obligations (whether accrued, absolute, contingent or otherwise), businesses or results of operations of the Buyer Entities (taken as a whole) or the Buyer Business and/or (B) the ability of the Buyer to perform its obligations under this Agreement; provided, however, that, solely with respect to clause (A), any change, state of facts, circumstance, event or effect to the extent arising from or related to (i) conditions generally affecting the United States economy or generally affecting one or more industries in which the Buyer Entities operate, (ii) national or international political or social conditions, including terrorism or the engagement by the United States in hostilities or acts of war, (iii) changes in Law or in GAAP or other accounting requirements after the date of this Agreement, (iv) any action taken or failed to be taken as expressly and specifically required or permitted in accordance with this Agreement or at the express and specific request of, or expressly and specifically consented to by, the Company (provided, it is understood and agreed that actions taken by the Buyer in accordance with Section 4.10(a) to conduct (or cause the conduct) of its business operations in the ordinary course consistent with past practice shall not be excluded in determining whether a Buyer Material Adverse Effect has occurred), or (v) the execution or delivery of this Agreement, the consummation of the transactions contemplated by this Agreement or the public announcement or other publicity with respect to any of the foregoing, in each case, shall not be taken into account in determining whether a Buyer Material Adverse Effect has occurred or would reasonably be expected to occur; provided, that, if such change, state of facts, circumstance, event or effect referred to in clauses (i), (ii) or (iii) of this definition have a disproportionately adverse effect on the Buyer Entities (taken as a whole) or the Buyer Business, as compared to other Persons in the industries in which the Buyer Entities operate, then the incremental disproportionate effect of such change, state of facts, circumstance, event or effect shall be taken into account in determining whether a Buyer Material Adverse Effect has occurred or would reasonably be expected to occur.  For the avoidance of doubt, neither the filing of the Chapter 11 Cases nor the taking of any actions required by the Plan shall be construed as a Buyer Material Adverse Effect.

(xiii)     “Buyer Product” means any of (a) the ARYMO ER™ (whether marketed under such name or any other name), (b) the product referred to as SPRIX® (ketorolac tromethamine) Nasal Spray (whether marketed under such name or any other name), (c) the product referred to as OXAYDO® (whether marketed under such name or any other name) or (d) any and all product improvements, additional claims, line extensions, dosage changes and alternate delivery systems in respect of any of the foregoing.

(xiv)    “Buyer SEC Documents” means all publicly available reports, schedules, forms, registration statements and other documents required to be filed by Parent with the SEC, together with any documents furnished during such period by Parent to the SEC on a

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voluntary basis on Current Reports on Form 8-K and any reports, schedules, forms, registration statements and other documents filed with the SEC between January 1, 2018 and the date hereof.

(xv)       “Buyer Transaction Expenses” means the fees and expenses incurred by the Buyer and its Affiliates in connection with this Agreement and the transactions contemplated hereby including, without limitation, the Acquisition, the 13% Notes Redemption, the Convertible Note Conversion, the other transactions contemplated by the Plan and any portion of the fees and expenses of the Company and its Subsidiaries payable by the Buyer pursuant to Section 8.12 or otherwise.

(xvi)     “China License and Supply Agreement” means that certain License and Supply Agreement, dated as of January 24, 2017, by and between Iroko Properties Inc. and Sichuan Credit Pharmaceuticals Co., Ltd (including the related Safety Data Exchange Agreement, dated January 24, 2017, by and between the same parties and attached as Schedule 3 thereto), as amended by the First Addendum between the same parties, dated May 6, 2018, each as in effect on the date of this Agreement and made available to the Buyer prior to the date of this Agreement in the Company’s due diligence data room.

(xvii)  “CMC” means chemistry, manufacturing, and controls.

(xviii) “Code” means the U.S. Internal Revenue Code of 1986, as amended.

(xix)    “Company’s Knowledge” means the actual knowledge of ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇, in each case after due inquiry of the individuals with supervisory responsibility or expertise over or in the matter in question.

(xx)       “Competition Laws” means all other Laws that are designed or intended to prohibit, restrict or regulate actions or transactions having the purpose or effect of monopolization or restraint of trade or lessening of competition through merger or acquisition or effectuating foreign investment, including the HSR Act (and any similar Law enforced by any Governmental Entity regarding preacquisition notifications for the purpose of competition reviews).

(xxi)    “Company Redemption” means the mandatory redemption of outstanding shares of the Company held by shareholders in the Company other than CRG under Section 176 of the BVI Business Companies Act, 2004 and in accordance with applicable Law, following which CRG shall hold all of the issued and outstanding shares of the Company (provided that such definition shall not include any related dissent or appraisal process.)

(xxii) “Company Term Loan Agreement” means that certain Term Loan Agreement, dated as of June 27, 2016, as amended from time to time, among Iroko Pharmaceuticals, LLC, the Company, the other Subsidiaries party thereto, CRG Servicing LLC, as administrative and collateral agent (the “Collateral Agent”), and the lenders from time to time party thereto (the “Company Lenders”).

(xxiii) “Confirmation Order” means an order of the Bankruptcy Court confirming the Plan and approving the Acquisition and other transactions contemplated by this

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Agreement, and the authorization of the Buyer to consummate the transactions contemplated hereby and thereby in form and substance reasonably acceptable to the Company (such acceptance not to be unreasonably delayed, conditioned or withheld); it being agreed that it would not be reasonable for the Company to object to any confirmation order that is in form and substance materially consistent with the form of confirmation order filed in accordance with Section 4.16(c).

(xxiv) “Court Order” means any judgment, decision, decree, stipulation, award, consent decree, writ, injunction (whether temporary, permanent or preliminary), ruling, order or other legally binding agreement of any Governmental Entity that is binding on any Person or its property under applicable Laws.

(xxv)  “CRG” means, collectively, CRG Partners III L.P., CRG Partners III — Parallel Fund “A” L.P., CRG Partners III (Cayman) Lev AIV I L.P., CRG Partners III (Cayman) Unlev AIV I L.P., and CRG Partners III Parallel Fund “B” (Cayman) L.P.

(xxvi) “Current Liabilities Target” means an amount equal to $40,930,000 plus a buffer of 7.5% of that amount.

(xxvii) “DEA” means United States Drug Enforcement Administration.

(xxviii) “Development Products” means pharmaceutical products that are not currently approved for commercial sale in any market, other than the Naproxen Product.

(xxix)  “Diligent Efforts” means such level of efforts that would be used by a similarly situated company in commercializing pharmaceutical products to which it has rights, taking into account product labeling, anticipated labeling, safety and efficacy, market potential, medical and clinical considerations, regulatory environment and competitive market conditions, the nature and extent of market exclusivity (whether provided by Intellectual Property coverage, regulatory exclusivity or otherwise), financial return on such product and other relevant considerations, all of which may be evaluated for each particular market.  It is understood that such factors may change from time to time.  The exercise of diligence by the Buyer and its Affiliates is to be determined by judging the Buyer’s diligent efforts at the time taken as a whole.

(xxx)  “Disclosure Statement” means solicitation materials relating to the Plan in compliance with applicable Law in the form attached hereto as Exhibit I (as amended, modified or supplemented from time to time in accordance with this Agreement), or otherwise in form and substance reasonably acceptable to the Company (such acceptance not to be unreasonably delayed, conditioned or withheld, it being agreed that it would not be reasonable for the Company to object to any disclosure statement that is in form and substance materially consistent with the form of disclosure statement attached hereto as Exhibit I (as amended, modified or supplemented from time to time in accordance with this Agreement) and with the terms of this Agreement).

(xxxi) “Employees” mean those Persons employed by the Company or its Subsidiaries in connection with conduct and operation of the Business immediately prior to the Closing.

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(xxxii)  “Equity Consideration” means (x) a number of shares of Parent Common Stock equal to the 49.0% of the Parent Closing Shares Outstanding, and (y) New Warrants to purchase a number of shares of Parent Common Stock which, when combined with the number of shares to be issued pursuant to clause (x) hereof, will be equal to 49.0% of the Parent Fully Diluted Shares Outstanding; provided however, that the number of shares of Parent Common Stock in clause (y) hereof shall be the minimum required in order to allow each of the three stockholders of Buyer Parent holding the largest number of shares of Buyer Parent Common Stock (other than the Company and its Subsidiaries) to hold no more than 9.99% of the aggregate number of shares of Parent Common Stock issued and outstanding at the Closing Date, or such other percentage ownership threshold that may be requested by such stockholders subject to the Company’s consent in its sole discretion.

(xxxiii) “ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the regulations promulgated thereunder.

(xxxiv) “ERISA Affiliate” means, with respect to any Person, any corporation or trade or business (whether or not incorporated) which is treated with such Person or any of its Subsidiaries as a single employer within the meaning of Section 414 of the Code.

(xxxv) “Excess Inventory” means the Company’s and its Subsidiaries’ inventory of Finished Product as of the Closing Date that exceeds the amount of such Finished Product necessary in order to satisfy the Company’s projected sales of such Finished Product from the Closing Date until the date of expiration of each such Finished Product, based on the average sales of such Finished Product to third-party customers through Cardinal Health 105, Inc. during the six month period immediately preceding the Closing Date.

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

(xxxvii) “Exploitation”, and related terms such as “Exploit”, means, any research, development, manufacturing, testing, import, export, commercialization, distribution, advertising, marketing, use, storage, transport, promotion, license, disposition or sale activities, including any outsourcing thereof.

(xxxviii) “FDA” means the United States Food and Drug Administration.

(xxxix) “FDC Act” means the United States Federal Food, Drug, and Cosmetic Act, as amended.

(xl)           “Final Purchase Price” means, in the aggregate at the time of calculation, (i) Closing Consideration, plus (ii) the aggregate amount of any Royalty Payments paid to the Royalty Recipient, plus (iii) the Interim Payments Note Consideration, plus (iv) the amount of any adjustments (which may be a negative number) related to indemnification payments pursuant to Article VI.

(xli)        “Finished Product” means, with respect to each Product, such Product in its final dosage form containing the active pharmaceutical ingredients (or “API”) in

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primary and secondary packaging and applying the Company’s or any of its Subsidiaries’ trade dress.

(xlii)     “GAAP” means generally accepted accounting principles for financial reporting in the United States, as in effect as of the date of this Agreement.

(xliii)  “Good Clinical Practices” or “GCP” means the ethical and scientific quality standards for designing, conducting, recording, and reporting trials that involve the participation of human subjects as are required by applicable regulatory Governmental Entity or Law in the relevant jurisdiction, and which in the United States, shall be based on Good Clinical Practices established through FDA guidance (including Guideline for Good Clinical Practice — ICH Harmonized Tripartite Guideline (ICH E6)), and, outside the United States, shall be based on Guideline for Good Clinical Practice — ICH Harmonized Tripartite Guideline (ICH E6).

(xliv) “Good Laboratory Practices” means the then-current good laboratory practice standards promulgated or endorsed by the FDA, as defined in U.S. 21 C.F.R. Part 58 (or such other comparable regulatory standards in jurisdictions outside the United States, as they may be updated from time to time).

(xlv)    “Good Manufacturing Practices” means all applicable standards relating to manufacturing practices for fine chemicals, intermediates, bulk products and/or finished pharmaceutical products, including (a) all applicable requirements detailed in the FDA’s current Good Manufacturing Practices regulations, U.S. 21 C.F.R. Parts 210 and 211 and “The Rules Governing Medicinal Products in the European Community, Volume IV, Good Manufacturing Practice for Medicinal Products”, as each may be amended from time to time, and (b) all applicable Laws promulgated by any Governmental Entity having jurisdiction over the manufacture of any pharmaceutical product.

(xlvi) “Governmental Entity” means any United States or foreign federal, state, provincial or local or municipal government or other political subdivision thereof, any entity, authority, governmental department, agency, commission, bureau, official, minister, court, board, tribunal, or body exercising executive, legislative, judicial, regulatory, Taxing or administrative functions of any such government or political subdivision, and any supranational organization of sovereign states exercising such functions for such sovereign states.

(xlvii) “Hedging Obligations” means, with respect to any Person, the obligations of such Person under all (A) currency exchange, interest rate or commodity swap agreements, currency exchange, interest rate or commodity cap agreements and currency exchange, interest rate or commodity collar agreements; and (B) other agreements or arrangements designed to protect such Person against fluctuations in currency exchange, interest rates or commodity prices or to otherwise manage interest rate risk or currency exchange risk.

(xlviii) “HSR Act” means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended.

(xlix)  “iCeutica Promissory Notes” means, collectively, (A) the Promissory Note, dated November 13, 2013, by and between Iroko Properties Inc. (“IPI”), a

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company incorporated under the laws of the British Virgin Islands, and iCeutica Inc., a Delaware corporation (“iCeutica”), as amended, pursuant to that certain license agreement between IPI and iCeutica for diclofenac, (B) the Promissory Note, dated November 13, 2013, by and between IPI and iCeutica, as amended, pursuant to that certain license agreement between IPI and iCeutica for meloxicam, and (C) any other promissory note or similar instrument entered into between the Company or any of its Affiliates, on the one hand, and iCeutica or any of its Affiliates, on the other hand.

(l)                  “Indebtedness” means with respect to any Person, (1) the principal of any indebtedness of such Person, whether or not contingent, (a) in respect of borrowed money, (b) evidenced by bonds, notes, debentures or similar instruments or letters of credit or bankers’ acceptances (or, without duplication, reimbursement agreements in respect thereof), (c) representing the deferred and unpaid purchase price of any property (except (i) any such balance that constitutes a trade payable or similar trade obligation incurred in the ordinary course of business and (ii) any liabilities accrued in the ordinary course of business), which purchase price is due more than six months after the date of placing the property in service or taking delivery and title thereto, (d) in respect of capitalized lease obligations, or (e) representing any Hedging Obligations, if and solely to the extent that any of the foregoing indebtedness (other than letters of credit and Hedging Obligations) would appear as a liability on a balance sheet (excluding the footnotes thereto) of such Person prepared in accordance with GAAP; (2) to the extent not otherwise included under clause (1) above and without duplication, any guarantee of such Person to be liable for, or to pay, as obligor, guarantor or otherwise, on any such Indebtedness of another Person (other than by endorsement of negotiable instruments for collection in the ordinary course of business); and (3) to the extent not otherwise included under clause (1) above and without duplication, Indebtedness of another Person secured by a Lien on any asset owned by such Person (whether or not such Indebtedness is assumed by such Person); provided, however, that notwithstanding the foregoing, Indebtedness shall be deemed not to include: (1) contingent obligations incurred in the ordinary course of business and not in respect of borrowed money; (2) deferred or prepaid revenues; (3) purchase price holdbacks in respect of a portion of the purchase price of an asset to satisfy warranty or other unperformed obligations of the respective seller; (4) any earn-out obligations, contingent consideration, purchase price adjustments, deferred purchase money amounts, milestone and/or bonus payments (whether performance or time-based), and royalty, licensing, revenue and/or profit sharing arrangements, in each case, characterized as such and arising expressly out of purchase and sale contracts, development arrangements or licensing arrangements; (5) deferred compensation; (6) accrued expenses; or (7) obligations in respect of preferred stock that is not Disqualified Stock (as defined in the indenture governing the 13% Notes).

(li)               “Indocin Net Sales” means, with respect to any Indocin Product, the gross amount invoiced for sales in the United States of such Indocin Product in arm’s length sales by the Buyer, any of its Affiliates or the Buyer’s licensees, sublicensees, assignees, transferees or other commercial partners or co-promoters (or any of their respective Affiliates) to independent, unrelated third parties, less the following deductions from such gross amounts that are actually incurred, allowed, accrued or specifically allocated: (i) credits, price adjustments or allowances for damaged products (to the extent not covered by insurance), defective goods, returns or rejections of such Indocin Product; (ii) normal and customary trade, cash and quantity discounts, allowances and credits (other than price discounts granted at the time of invoicing that

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have been already reflected in the gross amount invoiced); (iii) chargeback payments, rebates and similar allowances (or the equivalent thereof) granted to group purchasing organizations, managed health care organizations, distributors or wholesalers or to federal, state/provincial, local and other governments, including their agencies, or to trade customers; (iv) any fees paid to any third party logistics providers, wholesalers and distributors; (v) any freight, postage, shipping, insurance and other transportation charges incurred by the selling Person in connection with shipping such Indocin Product to third party logistics providers, wholesalers and distributors and to customers; (vi) adjustments for billing errors or recalls; (vii) sales, value-added (to the extent not refundable in accordance with applicable law), and excise taxes, tariffs and duties, and other taxes (including annual fees due under Section 9008 of the United States Patient Protection and Affordable Care Act of 2010 (Pub. L. No. 111-48) and other comparable laws), levied on, absorbed, determined or imposed with respect to such sale (but not including taxes assessed against the income derived from such sale); and (viii) amounts written off by reason of uncollectible debt, provided that if the debt is thereafter paid, the corresponding amount shall be added to the Indocin Net Sales of the period during which it is paid.  Indocin Net Sales, as set forth in this definition, shall be calculated applying, in accordance with GAAP, the standard accounting practices the selling Person customarily applies to other branded products sold by it or its Affiliates under similar trade terms and conditions.  For the avoidance of doubt, there shall be no deduction for any royalty or similar payments due in respect of the Indocin Products to any third parties, whether due under any existing or future agreement.

(lii)            “Indocin Product” means any pharmaceutical product, other than those currently marketed by the Company, its Affiliates, or their respective sublicensees under the brand TIVORBEX, that is: (i) currently marketed by the Company, its Affiliates, or their respective sublicensees that includes indomethacin as an API, or any successor pharmaceutical product thereof (including any pharmaceutical product whose development is based upon, incorporates or is otherwise derived from or dependent upon any data, information or rights underlying or comprising such currently marketed pharmaceutical products) (“Transferred Indocin Product”); (ii) marketed during the Royalty Term by the Buyer, its Affiliates or their respective sublicensees that includes indomethacin as an API; or (iii) marketed during the Royalty Term by the Buyer or its Affiliates or their respective sublicensees that is or would be competitive with the revenue from any pharmaceutical product referenced in subsections (i) and (ii) hereof.

(liii)         “Intellectual Property” means any and all intellectual property rights and other similar proprietary rights in any jurisdiction, whether registered or unregistered, whether owned or held for use under license, including all rights and interests pertaining to or deriving from (A) patents, trademarks, service marks, trade names, domain names, copyrights, designs and trade secrets, (B) applications for and registrations of such patents, including reexaminations, extensions and counterparts claiming priority therefrom, inventions, invention disclosures, discoveries and improvements, whether or not patentable, trademarks, service marks, trade names, domain names, copyrights and designs, (C) proprietary or confidential processes, formulae, methods, schematics, technology, know-how and computer software programs and applications, including data files, source code, object code and software-related specifications and documentation, and (D) other tangible or intangible proprietary or confidential information and materials, including proprietary databases and data compilations, in each case,

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including any registrations of, applications to register, and renewals and extensions of, any of the foregoing with or by any Governmental Entity in any jurisdiction.

(liv)        “Interim Payments Note Consideration” means amounts owed by Buyer under the Interim Payments Note.

(lv)           “Iroko Marks” means any references to Company’s or its Subsidiaries’ trademarks, names, trade dress, logos or other source or business identifiers, including the rights set out in Schedule 1.2(l).

(lvi)        “Law” means, with respect to any Person, any federal, state, local, municipal, foreign or other law, statute, constitution, principle of common law, resolution, ordinance, convention, official standard, requirement or obligations under Permits, code, edict, decree, rule, Court Order, regulation, ruling, notice, treaty, requirement or other binding directive issued, enacted, adopted, promulgated, implemented or otherwise put into effect or enforced by or under the authority of any Governmental Entity having jurisdiction with respect to such Person.

(lvii)     “LIBOR Rate” means, as of a given date the rate per annum appearing on page LIBOR01 of Reuters (or any successor or substitute page thereof) as the one (1) month LIBOR rate for U.S. Dollars on such date (or if adequate and reasonable means do not exist for ascertaining LIBOR for the respective period, the prime rate as published in The Wall Street Journal, Eastern Edition, on such date).

(lviii)  “Liens” means any mortgage, security interest, pledge, conditional sale or other title retention agreement, lien, charge or encumbrance.

(lix)        “Management Incentive Plan” has the meaning assigned to it in the Plan.

(lx)           “Material Adverse Effect” means any change, state of facts, circumstance, event or effect that, individually or in the aggregate, is materially adverse to, (A) the financial condition, properties, assets, liabilities, obligations (whether accrued, absolute, contingent or otherwise), businesses or results of operations of the Company and its Subsidiaries (taken as a whole), the Transferred Assets, the Assumed Liabilities or the Business and/or (B) the ability of the Company to perform its obligations under this Agreement; provided, however, that, solely with respect to clause (A), any change, state of facts, circumstance, event or effect to the extent arising from or related to (i) conditions generally affecting the United States economy or generally affecting one or more industries in which the Company and its Subsidiaries operate, (ii) national or international political or social conditions, including terrorism or the engagement by the United States in hostilities or acts of war, (iii) changes in Law or in GAAP or other accounting requirements after the date of this Agreement, (iv) any action taken or failed to be taken as expressly and specifically required or permitted in accordance with this Agreement or at the express and specific request of, or expressly and specifically consented to by, the Buyer (provided, it is understood and agreed that actions taken by the Company in accordance with Section 4.10(a) to conduct (or cause the conduct) of its business operations in the ordinary course consistent with past practice shall not be excluded in determining whether a Material Adverse

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Effect has occurred), or (v) the execution or delivery of this Agreement, the consummation of the transactions contemplated by this Agreement or the public announcement or other publicity with respect to any of the foregoing, in each case, shall not be taken into account in determining whether a “Material Adverse Effect” has occurred or would reasonably be expected to occur; provided, that, if such change, state of facts, circumstance, event or effect referred to in clauses (i), (ii) or (iii) of this definition have a disproportionately adverse effect on the Company and its Subsidiaries (taken as a whole), the Transferred Assets, the Assumed Liabilities or the Business, as compared to other Persons in the industries in which the Company and its Subsidiaries operate, then the incremental disproportionate effect of such change, state of facts, circumstance, event or effect shall be taken into account in determining whether a Material Adverse Effect has occurred.

(lxi)        “Naproxen Product” means the development stage pharmaceutical product candidate covered by the Investigational New Drug application number 103890 for SoluMatrix® Naproxen capsules, including any modifications thereto.

(lxii)     “Net Sales” means the gross revenues (whether in cash, securities or other consideration) from the sale or disposition of Naproxen Product, Tivorbex Product and/or the Zorvolex Product by Buyer or any of its respective Affiliates (or successors, assigns, or licensees), it being understood that sales shall not give any effect to discounts to the price of the Naproxen Product, the Tivorbex Product and/or the Zorvolex Product for bundled sales of the products with any other product sold by the applicable person. Net Sales for a specified period are less reasonable and customary deductions for the following amounts (to the extent not already deducted in calculating sales) with respect to the Naproxen Product, the Tivorbex Product and/or the Zorvolex Product, all determined in accordance with Buyer’s established internal accounting practices consistently applied: (a) payments made or credits allowed for promotional purposes; (b) customary allowances, rebates and trade, quantity, or cash discounts, including discounts, rebates or other payments required under Medicaid, Medicare or other governmental medical assistance programs, to the extent allowed and taken; (c) amounts repaid for returns or rejections; and (d) to the extent separately stated on invoices, taxes and other governmental charges levied on the production, sale, transportation, delivery, or use of the Naproxen Product, the Tivorbex Product and/or the Zorvolex Product, paid by or on behalf of Buyer or its Affiliates. Net Sales will be determined on a GAAP basis and reported in U.S. dollars

(lxiii) “NDA” means a New Drug Application as defined in the FDC Act.

(lxiv) “New Notes Royalty Agreement” means the royalty rights agreement entered into between the Buyer Parent and the holders of the New Senior Secured Notes in connection with the New Senior Secured Notes, to be agreed by the parties on the same terms as the Royalty Right Agreement, dated January 18, 2017, except as set forth on the Term Sheet for the New Senior Secured Notes Indenture attached hereto as Exhibit J or as otherwise agreed to by Buyer and the Company; provided that any material change in the final New Notes Royalty Agreement to be executed and delivered at the Closing from the terms of the Royalty Right Agreement, dated January 18, 2017 or from the Term Sheet for the New Senior Secured Notes shall be subject to approval by the Company in writing.

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(lxv)    “New Notes Royalty Rights” means the rights to payment and other rights under the New Notes Royalty Agreement.

(lxvi) “New Senior Secured Notes” means the 13% Senior Secured Notes of Buyer Parent issued pursuant to the New Senior Secured Notes Indenture as Series A-2 Notes, on which interest will be payable semi-annually starting on the earlier of (i) May 1, 2019 or (ii) the first interest payment date following the Closing Date.

(lxvii) “New Senior Secured Notes Indenture” means the indenture, which will govern the New Senior Secured Notes, to be agreed by the parties on substantially the same terms as the indenture governing the 13% Notes, except as set forth on the Term Sheet for the New Senior Secured Notes Indenture attached hereto as Exhibit J or as otherwise agreed to by Buyer and the Company; provided that any material change in the final New Senior Secured Notes Indenture to be issued at the Closing from the terms of the indenture governing the 13% Notes or from the Term Sheet for the New Senior Secured Notes shall be subject to approval by the Company in writing.

(lxviii) “New Warrants” means a perpetual warrant issued by Buyer Parent, with a nominal exercise price, to purchase a number of shares of Parent Common Stock in accordance with the terms of this Agreement and the Plan, the terms of which will provide that it will not be exercisable unless such exercise otherwise complies with applicable law and the form of which warrant is reasonably acceptable the Company and the Buyer.

(lxix) “Notes Consideration” means (a) $45,000,000 in aggregate principal amount of New Senior Secured Notes to be issued pursuant to and on the terms set forth in the New Senior Secured Notes Indenture and (b) the New Notes Royalty Rights.

(lxx)    “Order” means any judicial, administrative or arbitral order, award, decree, injunction, lawsuit, proceeding or stipulation.

(lxxi) “Parent Common Stock” means Buyer Parent’s common stock, par value $0.001 per share.

(lxxii) “Parent Closing Shares Outstanding” means, as of immediately following the Closing and the consummation of the other transactions contemplated hereby, by the Plan, and by the Ancillary Agreements (including, without limitation, the Convertible Note Conversions) the aggregate number of shares of Parent Common Stock then issued and outstanding; provided, that, for the avoidance of doubt, no securities issued or issuable under the Management Incentive Plan shall be deemed to be issued and outstanding in determining the Parent Closing Shares Outstanding.

(lxxiii) “Parent Fully Diluted Shares Outstanding” means, as of immediately following the Closing and the consummation of the other transactions contemplated hereby, by the Plan, and by the Ancillary Agreements (including, without limitation, the Convertible Note Conversions), (x) the aggregate number of shares of Parent Common Stock issued and outstanding plus (y) the aggregate number of shares of Parent Common Stock issuable upon the exercise or conversion of any other issued and outstanding securities of Buyer Parent pursuant to the terms of such securities (including the New Warrants, but excluding the

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securities issued or issuable pursuant to the Management Incentive Plan approved in accordance with the Plan, which securities as of the Closing Date constitute no more than 10% of the Parent Common Stock then outstanding).

(i)                  “Permits” means, with respect to a Person, all material certifications (including those of standards-setting organizations), licenses, permits, franchises, approvals, authorizations or exemptions, from, or notices to, consents or orders of, or filings with, any trade association, any standards-setting organization, or any Governmental Entity, necessary or reasonably required for the conduct and operation of the business of such Person.

(ii)               “Permitted Designee” means (i) any Subsidiary of Company that the Company has designated to the Buyer prior to the Closing to receive the Equity Consideration, the Notes Consideration or the Royalty Consideration, provided that such Subsidiary fulfills the requirements of a Permitted Transferee as set forth in that definition and (ii) any Permitted Transferee that the Company has designated in writing to the Buyer at least two (2) Business Days prior to the Closing Date to receive the Equity Consideration or the Notes Consideration and which the Buyer has specifically approved in writing (such approval not to be unreasonably withheld).

(iii)            “Permitted Liens” means, (i) liens for current Taxes and assessments not yet due and payable, (ii) mechanic’s, materialmen’s, landlord’s, laborer’s, carrier’s, workmen’s, repairmen’s, warehousemen’s, supplier’s, vendor’s and similar liens and (iii) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, materially impair the continued ownership and use of the Transferred Assets.

(iv)           “Permitted Transferee” means (i) with respect to any Transfer of the Equity Consideration, any Transferee, subject to the Transferor’s compliance with the Stockholders Agreement, (ii) with respect to any Transfer of the Notes Consideration, any Transferee that has duly executed and delivered to the Buyer and is bound by a joinder to this Agreement in the form attached hereto as Exhibit K (a “Note Transfer Joinder”) and (iii) with respect to any Transfer of the Royalty Consideration, any Transferee that has duly executed and delivered to the Buyer and is bound by a joinder to this Agreement in the form attached hereto as Exhibit L (a “Royalty Consideration Transfer Joinder”); provided that, in each case, each Company Lender (or any of its Affiliates) will be considered a Permitted Transferee subject to such Person’s compliance with clauses (i) through (iii) in this definition, to the extent applicable to the Transfer.

(v)              “Person” means an individual, corporation, association, limited liability company (including a series thereof), limited liability partnership, partnership, estate, trust, unincorporated organization, government agency or political subdivision thereof, and other legal entity and its heirs, executors, administrators, legal representatives, successors, and assigns where the context requires.

(vi)           “Plan” means the chapter 11 plan of reorganization in the form attached hereto as Exhibit H (as amended, modified or supplemented from time to time in accordance with this Agreement), or otherwise in form and substance reasonably acceptable to the Company (such acceptance not to be unreasonably delayed, conditioned or withheld, it being

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agreed that it would not be reasonable for the Company to object to any plan that is in form and substance materially consistent with the form of plan attached hereto as Exhibit H (as amended, modified or supplemented from time to time in accordance with this Agreement) and with the terms of this Agreement).

(vii)        “Plan Related Documents” means, collectively, supplements, schedules, exhibits and other documents related to the Plan or the Disclosure Statement or their terms and conditions, including, for the avoidance of doubt, any documents included as part of, or in any way related to, the Plan Supplement (as defined in the Plan), (as amended, modified or supplemented from time to time in accordance with this Agreement) reasonably acceptable to the Company (such acceptance not to be unreasonably delayed, conditioned or withheld, it being agreed that it would not be reasonable for the Company to object to any Plan Related Document that is consistent with the terms of the Plan and this Agreement).

(viii)     “Product” means each of the pharmaceutical products currently sold under the Transferred Regulatory Authorizations, including those branded as INDOCIN, TIVORBEX, VIVLODEX and ZORVOLEX.

(ix)           “Representatives” means, with respect to a Person, such Person’s officers, directors, employees, attorneys, investment bankers, financial advisers, accountants, appraisers, agents, consultants or other representatives of such Person and each of its and their respective predecessors, successors and permitted assigns.

(x)              “Royalty Consideration” means the Royalty Payments, all rights of the Royalty Recipient under Section 1.5, and any rights of the Royalty Recipient to receive Confidential Information in respect thereof pursuant to Sections 4.1 and 4.2(d), but subject to the Company’s obligations under Section 4.1 in respect of the Buyer’s Confidential Information and to the Buyer’s rights of set-off under Section 1.5(c)(3) and Section 6.6.

(xi)           “Royalty Recipient” means the Company, any Permitted Designee or, to the extent validly Transferred in accordance with this Agreement, the Permitted Transferee of all (but not any portion) of the Royalty Consideration, and upon such Transfer, the Company or subsequent Transferor shall no longer be the Royalty Recipient.

(xii)        “Royalty Term” means the period (A) beginning on the later of (a) January 1, 2019 or (b) the Closing Date and (B) ending on the tenth (10th) anniversary of the Closing Date.

(xiii)     “SEC” means the U.S. Securities and Exchange Commission.

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

(xv)       “Short-Dated Inventory” means any of the Company’s and its Subsidiaries’ inventory of Finished Product, any API included in any Product and any other inventory not otherwise contained or used in the Finished Product, each with an expiration date that is within 10 months immediately following the Closing Date.

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(xvi)                       “Sublicense” means any sublicense of the Buyer or its Affiliates with a non-Affiliate permitting the commercial exploitation of any of the Naproxen Product, the Tivorbex Product or the Zorvolex Product which is licensed to the Buyer or its Affiliates and sublicensed by the Buyer or its Affiliates for the manufacture, use or sale of such product(s).

(xvii)                    “Subsidiary” means, with respect to any Person, any corporation, partnership, limited liability company, limited liability partnership, joint venture, or other legal entity of which the specified Person (either alone and/or through and/or together with any other Subsidiary) owns, directly or indirectly, more than 50% of the voting stock or other equity or partnership interests the holders of which are generally entitled to vote for the election of the board of directors or other governing body of such legal entity or of which the specified Person controls the management.

(xviii)                 “Taxes” means (A) all taxes, charges, fees, levies or other similar assessments or liabilities in the nature of a tax, including income, gross receipts, net proceeds, alternative or add-on minimum, ad valorem, turnover, premium, value-added, excise, stamp, leasing, lease, real property, personal property (tangible or intangible), sales, use, service, transfer, fuel, excess profits, profits, windfall profits, withholding (including employee’s income withholding), unemployment or other social security, occupational, employment, severance, disability, payroll, registration, environmental, capital stock, capital duty, gains, wealth, welfare, franchise, customs, estimated, duties (including customs duties) and escheat or unclaimed property taxes, in each case imposed by any Taxing Authority; (B) any interest, fines, penalties, assessments or additions to tax resulting from, attributable to or incurred in connection with any tax described in clause (A) or any contest or dispute thereof; and (C) any liability for the payment of amounts described in clauses (A) or (B) as a result of any Tax sharing, Tax indemnity or Tax allocation agreement or any other express or implied agreement to pay or indemnify any other Person whether by contract or otherwise.

(xix)                       “Taxing Authority” means the Internal Revenue Service and any similar Governmental Entity.

(xx)                          “Tax Returns” means all reports, returns, declarations, statements or other information returns or statements required to be supplied to any Taxing Authority in connection with Taxes (including any attachments thereto or amendments thereof).

(xxi)                       “Tivorbex Product” means the pharmaceutical product currently sold under the Transferred Regulatory Authorizations and branded as TIVORBEX including any modifications thereto.

(xxii)                    “Transfer” means the making of any sale, exchange, assignment, hypothecation, gift, security interest, pledge or other encumbrance, or any contract therefor, or any other transfer or disposition whatsoever, whether voluntary or involuntary.  “Transferee” shall have a correlative meaning.

(xxiii)                 “Transfer Taxes” means any sales/use Taxes, transfer Taxes, excise Taxes, tariffs, stamp Taxes, conveyance Taxes, mortgage Taxes, intangible Taxes, documentary recording taxes, license and registration fees, value added taxes and recording fees

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imposed by any Governmental Entity, imposed upon the transfer of the Transferred Assets hereunder.

(xxiv)                “Transferred Intellectual Property” means the Transferred Patents, the Transferred Trademarks, Transferred Domain Names and Transferred Other IP.

(xxv)                   “Transferred Inventory” means all of the Company’s and its Subsidiaries’ inventory of Finished Product, any API included in any Product and any other inventory not otherwise contained or used in the Finished Product, except for the Excess Inventory and the Short-Dated Inventory; provided that the Transferred Inventory as a whole shall be valued by the Company as having an aggregate value of no less than $5,000,000, as of the Closing Date, such valuation to be conducted in accordance with the Company’s standard business practices currently in effect on the date hereof.

(xxvi)                “WARN Act” means the federal Worker Adjustment and Retraining Notification Act of 1988, and similar state, local and foreign laws related to plant closings, relocations, mass layoffs and employment losses.

(xxvii)             “Zorvolex Product” means the pharmaceutical product currently sold under the Transferred Regulatory Authorizations and branded as ZORVOLEX including any modifications thereto.

(b)                                 For purposes of this Agreement, the following terms have the meanings set forth in the Sections indicated:

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