Form DEFA14A - Additional definitive proxy soliciting materials and Rule 14(a)(12) material

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): June 17, 2024

Vapotherm, Inc.

(Exact name of Registrant as specified in its charter)

Delaware

001-38740

46-2259298

(State or other

jurisdiction of

incorporation)

(Commission

File No.)

(IRS Employer

Identification No.)

100 Domain Drive
Exeter, NH	03833
(Address of principal executive offices)	(Zip code)

Registrant’s telephone number, including area code: 603 658-0011

Securities registered pursuant to Section 12(b) of the Act:

Title of each class

Trading

Symbol

Name of each

exchange on which

registered

N/A

Securities registered pursuant to section 12(g) of the Act: Common Stock, $0.001 par value per share

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the Registrant under any of the following provisions:

☐	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

☒	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

☐	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

☐	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

☐ Emerging Growth Company

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

Item 1.01 Entry into a Material Definitive Agreement.

Merger Agreement

On June 17, 2024, Vapotherm, Inc., a Delaware corporation (the “Company”), entered into an Agreement and Plan of Merger, (the “Merger Agreement”), among Veronica Holdings, LLC, a Delaware limited liability company (“Topco”), Veronica Intermediate Holdings, LLC, a Delaware limited liability company and wholly owned subsidiary of Topco (“Parent”), Veronica Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), and the Company, pursuant to which, among other things, Merger Sub will merge with and into the Company (the “Merger”). As a result of the Merger, the separate corporate existence of Merger Sub will cease, and the Company will continue as the surviving corporation of the Merger and as a wholly owned subsidiary of Parent (the “Surviving Corporation”). Topco, Parent and Merger Sub are affiliates of Perceptive Advisors, LLC (“Perceptive”).

The Board of Directors of the Company (the “Board”) referred consideration of any potential transaction involving the Company to a Special Review Committee (the “Special Committee”) of the Board, including the authority to, among other things, review, evaluate, negotiate, approve or not approve and recommend or not recommend to the Board and the Company’s stockholders any proposal made by Parent.

The Special Committee unanimously (i) determined that the Merger and certain other transactions contemplated by the Merger Agreement are advisable, fair to and in the best interests of the Company, (ii) recommended that the Board (A) approve and declare advisable that the Company enter into the Merger Agreement and certain other transaction documents and agreements to which the Company is or will be a party and perform its covenants and other obligations therein, and consummate the transactions contemplated by the Merger Agreement and such other transaction documents, including the Merger, upon the terms and subject to the conditions set forth therein and (B) direct that the adoption of the Merger Agreement be submitted to a vote of the Company’s stockholders at a meeting of the Company’s stockholders, and (iii) subject to the terms and conditions of the Merger Agreement, recommended that the Company’s stockholders approve the adoption of the Merger Agreement and approve the Merger on the terms and subject to the conditions set forth in the Merger Agreement.

The Board (acting on the recommendation of the Special Committee) unanimously (i) determined that the Merger and certain other transactions contemplated by the Merger Agreement are advisable, fair to and in the best interests of the Company and the Company’s stockholders (other than Parent and its affiliates and any Stockholder Rollover Holders (as defined below)), (ii) approved and declared advisable that the Company enter into the Merger Agreement and certain other transaction documents and agreements to which the Company is or will be a party and perform its covenants and other obligations therein, and consummate the transactions contemplated by the Merger Agreement and such other transaction documents, including the Merger, upon the terms and subject to the conditions set forth therein, (iii) directed that the adoption of the Merger Agreement be submitted to a vote of the Company’s stockholders at a meeting of the Company’s stockholders and (iv) subject to the terms and conditions of the Merger Agreement, recommended that the Company’s stockholders approve the adoption of the Merger Agreement and approve the Merger on the terms and subject to the conditions set forth in the Merger Agreement.

Pursuant to the Merger Agreement, at the effective time of the Merger (the “Effective Time”), and by virtue of the Merger, (i) each share of common stock, par value $0.001 per share, of the Company (“Company Common Stock”) issued and outstanding immediately prior to the Effective Time (other than those shares of Company Common Stock described in clauses (ii) through (iv) below) will be converted into the right to receive an amount in cash equal to $2.18, without interest (the “Per Share Merger Consideration”), and as of the Effective Time, all such shares will no longer be outstanding and will automatically be cancelled and will cease to exist, and each holder thereof will cease to have any rights with respect thereto, except the right to receive the Per Share Merger Consideration; (ii) each share of Company Common Stock held in the treasury of the Company or owned by the Company or any direct or indirect wholly owned subsidiary of the Company immediately prior to the Effective Time will be canceled and retired without any conversion thereof and will cease to exist and no payment or distribution will be made with respect thereto; (iii) and each share of Company Common Stock owned by Parent, Merger Sub or any direct or indirect wholly owned subsidiary of Parent or Merger Sub immediately prior to the Effective Time (other than the Rollover Shares (as defined below) contributed to Topco) will be canceled and retired without any conversion thereof and will cease to exist and no payment or distribution will be made with respect thereto; (iv) each share of Company Common Stock held by a holder (or “beneficial owner” (as defined in Section 262(a) of the General Corporation Law of the State of Delaware) who is entitled to demand and properly exercises and perfects its respective demand for appraisal of such shares of Company Common Stock in accordance with Section 262 of the General Corporation Law of the State of Delaware and as described in the Merger Agreement); and (v) each Rollover Share (as defined below) will remain outstanding and no payment or distribution will be made with respect thereto.

As of the Effective Time, except as otherwise agreed to between Parent, the Company and a holder of an award, each option to purchase shares of Company Common Stock (each, a “Company Stock Option”) that is outstanding immediately prior to the Effective Time, whether or not vested, will be cancelled and in exchange therefor the holder will be entitled to receive an amount in cash, less applicable tax withholdings, equal to (i) the total number of shares of Company Common Stock subject to the vested portion of such Company Stock Option immediately prior to the Effective Time (including any portion of the Company Stock Option that becomes vested as a result of the transaction), multiplied by (ii) the excess, if any, of the Per Share Merger Consideration over the applicable exercise price per share of Company Common Stock subject to such Company Stock Option. No holder of a Company Stock Option that, as of immediately prior to such cancellation, has an exercise price per share of Common Stock that is equal to or greater than the Per Share Merger Consideration will be entitled to any payment with respect to such cancelled Company Stock Option.

As of the Effective Time, except as otherwise agreed to between Parent, the Company and a holder of an award, each restricted stock unit (each, a “Company RSU Award”) that is outstanding, whether or not vested, immediately prior to the Effective Time will be cancelled and in exchange therefor the holder will be entitled to receive an amount in cash, less applicable tax withholdings, equal to (i) the total number of shares of Company Common Stock subject to the vested portion of such Company RSU Award immediately prior to the Effective Time (including any portion of the Company Stock Option that becomes vested as a result of the transaction) multiplied by (ii) the Per Share Merger Consideration.

As of the Effective Time, except as otherwise agreed to between Parent, the Company and a holder of an award, each performance stock units (each, a “Company PSU Award” and, together with the Company Stock Options and the Company RSU Awards, the “Company Equity Awards”) that is outstanding immediately prior to the Effective Time will be cancelled and in exchange therefor the holder will be entitled to receive an amount in cash, less applicable tax withholdings, equal to (i) the total number of shares of Company Common Stock subject to the vested portion of such Company PSU Award immediately prior to the Effective Time (including any portion of the Company PSU Award that becomes vested as a result of the transaction) (assuming target performance is achieved, or such higher level as required by the terms of such Company PSU Award), multiplied by (ii) the Per Share Merger Consideration. As further described below, certain holders of Company Stock Options, Company RSU Awards and Company PSU Awards may agree with Parent and Topco to use the cash consideration that would otherwise be received in respect of such awards in the Merger (or the shares that would otherwise be delivered) in respect of such awards to subscribe for equity in Topco.

The closing of the Merger is subject to the satisfaction or waiver of certain conditions, including, among other things, (i) the absence of any law, order, injunction or decree issued by any governmental body of competent jurisdiction prohibiting the consummation of the Merger, (ii) the approval of the adoption of the Merger Agreement by the holders of a majority of the outstanding shares of Company Common Stock entitled to vote thereon at a stockholders’ meeting duly called and held for such purpose, (iii) the accuracy of the representations and warranties contained in the Merger Agreement (subject to specified materiality qualifiers), (iv) compliance with the covenants and obligations under the Merger Agreement in all material respects, (v) the absence of a material adverse effect with respect to the Company and (vi) the continuing effectiveness of certain agreements to which the Company is a party.

The Merger Agreement includes customary representations, warranties and covenants of the Company, Topco, Parent and Merger Sub. The Company has agreed to use commercially reasonable efforts to carry on its business in the ordinary course until the Effective Time, subject to customary exceptions. Parent has agreed to take any and all actions that may be required in order to obtain antitrust approval of the proposed Merger, to use commercially reasonable efforts to obtain foreign investment approvals, and to use commercially reasonable efforts to obtain other regulatory approvals, in each case, subject to certain limitations and to the extent required in connection with the Merger.

The Company is subject to customary “no-shop” restrictions on the Company’s ability to solicit alternative acquisition proposals, to furnish information to, and participate in discussions or negotiations with, third parties regarding any alternative acquisition proposals, subject to a customary “fiduciary out” provision that allows the Company, under certain specified circumstances, to furnish information to, and participate in discussions or negotiations with, third parties with respect to an acquisition proposal if the Board or a committee thereof determines in good faith, after consultation with its financial advisors and outside legal counsel, that such acquisition proposal either (i) constitutes a superior proposal or (ii) is reasonably likely to lead to or result in a superior proposal, and that failure to take such action would reasonably be expected to be inconsistent with the fiduciary duties of the Board, or the Special Committee (or an alternative committee of the Board) under applicable law.

The Merger Agreement also includes customary termination provisions for each of the Company and Parent. Upon termination of the Merger Agreement under certain specified circumstances, the Company will be required to pay Parent a termination fee of $1.0 million (the “Termination Fee”). The Company is required to pay Parent the Termination Fee if (i) the Company terminates the Merger Agreement in order to enter into a definitive agreement with respect to a superior proposal that was not the result of a material breach of the Company’s no-shop obligations or (ii) the Merger Agreement is terminated by Parent following the Board or any committee thereof effecting a change of recommendation, in each case, as more particularly described in the Merger Agreement. The Company is also required to pay Parent the Termination Fee if the Merger Agreement is terminated by either Parent or the Company if, under certain circumstances, a third party has publicly disclosed or provided to the Board another acquisition proposal prior to such termination, and within twelve (12) months following such termination, the Company enters into an agreement for or consummates a business combination transaction. The Merger Agreement also provides that either party may specifically enforce the other party’s obligations under the Merger Agreement under certain specified circumstances. Parent’s and its affiliates’ liability for monetary damages for breaches of the Merger Agreement are capped at $1.0 million plus certain enforcement expenses.

Parent has secured committed equity financing, to be provided by Perceptive or one of its affiliates, on the terms and subject to the conditions set forth in an equity commitment letter provided by Perceptive. Parent has also secured Perceptive’s or one of its affiliates’ obligation to fund Parent’s and/or Merger Sub’s obligations to pay certain monetary damages and expenses pursuant to the terms of the Merger Agreement.

Subject to the satisfaction or waiver of the conditions to the closing of the Merger, the Company expects the closing of the transactions contemplated by the Merger Agreement to occur in the second half of 2024.

The foregoing summary of the principal terms of the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the full copy of the Merger Agreement filed hereto as Exhibit 2.1 and incorporated herein by reference. The summary and the copy of the Merger Agreement are intended to provide information regarding the terms of the Merger Agreement and are not intended to modify or supplement any factual disclosures about the Company in its public reports filed with the U.S. Securities and Exchange Commission (the “SEC”). The assertions embodied in the representations and warranties included in the Merger Agreement were made solely for purposes of the contract among the Company, Topco, Parent and Merger Sub and are subject to important qualifications and limitations agreed to by the Company, Topco, Parent and Merger Sub in connection with the negotiated terms, including being qualified by confidential disclosures made by each contracting party to the other for the purposes of allocating contractual risk between them that differ from those applicable to investors. Moreover, some of those representations and warranties may not be accurate or complete as of any specified date, may be subject to a contractual standard of materiality different from those generally applicable to the Company’s SEC filings or may have been used for purposes of allocating risk among the Company, Topco, Parent and Merger Sub rather than establishing matters as facts. Investors should not rely on the representations and warranties or any description of them as characterizations of the actual state of facts of the Company, Topco, Parent and Merger Sub or any of their respective subsidiaries or affiliates. Moreover, information concerning the subject matter of the representations and warranties may change after the date of the Merger Agreement, and this subsequent information may or may not be fully reflected in public disclosures by the Company, Topco, Parent or Merger Sub.

Stockholder Rollover Agreements

In connection with the Company’s entry into the Merger Agreement, certain stockholders of the Company (the “Stockholder Rollover Holders”) entered into Rollover Agreements, dated as of June 17, 2024, by and among Topco, the Company and each Stockholder Rollover Holder (the “Stockholder Rollover Agreements”). Pursuant to and subject to the terms and conditions of the Stockholder Rollover Agreements, on the closing date of the Merger but immediately prior to the Effective Time, each Stockholder Rollover Holder agreed to contribute, transfer and assign to Topco all of the shares of Company Common Stock held directly by such Stockholder Rollover Holder (the “Rollover Shares”), in exchange for common units in Topco (“Common Units”) at a price per Common Unit equal to $2.18.

Pursuant to, and upon the terms and subject to the conditions of the Stockholder Rollover Agreements, each Stockholder Rollover Holder also agrees (a) to vote all of the Rollover Shares held by such Stockholder Rollover Holder (i) in favor of the adoption and approval of the Merger Agreement and the Merger, (ii) against any action, proposal, agreement or transaction that would reasonably be expected to change in any manner the voting rights of any class of shares of the Company or materially impede, interfere with, delay, postpone, frustrate, discourage or adversely affect the timely consummation of the Merger and the other transactions contemplated by the Merger Agreement, (iii) against any action, proposal, transaction or agreement that would result in (A) a breach of any covenant, representation or warranty or any other obligation or agreement of the Company in the Merger Agreement, or of such Stockholder Rollover Holder contained in such Stockholder Rollover Agreement, or (B) any of the conditions to the consummation of the Merger set forth in the Merger Agreement not being fulfilled, and (iv) in favor of any adjournment, recess, delay or postponement of the meeting of stockholders of the Company called to vote to adopt and approve the Merger Agreement and the Merger as may be reasonably requested by the Board or the Special Committee in order to seek or obtain approval of the adoption of the Merger Agreement or any action, proposal, transaction or agreement necessary to consummate the Merger and (b) not to (v) transfer any of such Rollover Shares or enter any contract, option or other arrangement or understanding with respect to the transfer of any of such Rollover Shares or any interest therein, (w) deposit any of such Rollover Shares into a voting trust or enter into a voting agreement or arrangement or grant any proxy or power of attorney with respect to such Rollover Shares that is inconsistent with the such Stockholder Rollover Holder’s obligations under such Stockholder Rollover Agreement, (x) convert or exchange, or take any action which would, or would reasonably be expected to, result in the conversion or exchange, of any of such Rollover Shares, (y) take any action that would, or would reasonably be expected to, (1) make any representation or warranty of such Stockholder Rollover Holder in such Stockholder Rollover Agreement materially untrue or materially incorrect, (2) have the effect of preventing, disabling, or materially delaying such Stockholder Rollover Holder from performing any of its obligations under such Stockholder Rollover Agreement or (3) result in a breach of any covenant, agreement or obligation of such Stockholder Rollover Holder set forth in such Stockholder Rollover Agreement, or (z) commit or agree to commit to take any of the actions referred to in the immediately preceding clauses (v), (w), (x) or (y).The foregoing description of the Stockholder Rollover Agreements is qualified in its entirety by reference to the full text of the Stockholder Rollover Agreements, forms of which are attached as Exhibit 10.1 and Exhibit 10.2, and are incorporated herein by reference.

SLR Rollover Agreements

Concurrently with the Company’s entry into the Merger Agreement, Topco and Parent entered into a Rollover Agreement (the “SLR Rollover Agreement”), dated as of June 17, 2024, by and among Topco, Parent and each of the persons identified as a holder on the signature pages thereto (collectively, the “SLR Rollover Holders”). Pursuant to the terms and subject to the conditions of the SLR Rollover Agreement, the SLR Rollover Holders agreed to, immediately prior to the Effective Time and subject to the subsequent consummation of the Merger, contribute certain of the loans and certain of the accrued but unpaid interest and fees under the Loan and Security Agreement (as defined below), and the Warrants (as defined below), to Topco in exchange for Series A Preferred Units of Topco (“Series A Preferred Units”) and Common Units and subsequent to the consummation of the Merger, such loans and accrued but unpaid interest and fees under the Loan and Security Agreement, and the Warrants, will be contributed by Topco to Parent and immediately upon receipt by Parent thereof, following the Effective Time, such loans and accrued but unpaid interest and fees under the Loan Agreements, and the Warrants, will thereafter be contributed by Parent to the Surviving Corporation.

The foregoing description of the SLR Rollover Agreement is qualified in its entirety by reference to the full text of the SLR Rollover Agreement, the form of which is attached as Exhibit 10.3, and is incorporated herein by reference.

Voting Agreements

Additionally, in connection with the Company’s entry into the Merger Agreement, certain stockholders of the Company entered into Voting and Support Agreements, dated as of June 17, 2024, by and between Parent and such stockholder (the “Voting Agreements”). Pursuant to, and upon the terms and subject to the conditions of the Voting Agreements, each stockholder agreed (a) to vote all of the shares of Company Common Stock beneficially owned by such stockholder (i) in favor of the adoption and approval of the Merger Agreement and the Merger, (ii) against any action, proposal, agreement or transaction that would reasonably be expected to change in any manner the voting rights of any class of shares of the Company or materially impede, interfere with, delay, postpone, frustrate, discourage or adversely affect the timely consummation of the Merger and the other transactions contemplated by the Merger Agreement, (iii) against any action, proposal, transaction or agreement that would result in (A) a breach of any covenant, representation or warranty or any other obligation or agreement of the Company in the Merger Agreement, or of such stockholder contained in such Voting Agreement, or (B) any of the conditions to the consummation of the Merger set forth in the Merger Agreement not being fulfilled, and (iv) in favor of any adjournment, recess, delay or postponement of the meeting of stockholders of the Company called to vote to adopt and approve the Merger Agreement and the Merger as may be reasonably requested by the Board or the Special Committee in order to seek or obtain approval of the adoption of the Merger Agreement or any action, proposal, transaction or agreement necessary to consummate the Merger and (b) not to (v) transfer any of such stockholder’s shares of Company Common Stock or enter any contract, option or other arrangement or understanding with respect to the transfer of any of such stockholder’s shares of Company Common Stock or any interest therein, (w) deposit any of such stockholder’s shares of Company Common Stock into a voting trust or enter into a voting agreement or arrangement or grant any proxy or power of attorney with respect to such stockholder’s shares of Company Common Stock that is inconsistent with the such stockholder’s obligations under such Voting Agreement, (x) convert or exchange, or take any action which would, or would reasonably be expected to, result in the conversion or exchange, of any of such stockholder’s shares of Company Common Stock, (y) take any action that would, or would reasonably be expected to, (1) make any representation or warranty of such stockholder in such Voting Agreement materially untrue or materially incorrect, (2) have the effect of preventing, disabling, or materially delaying such stockholder from performing any of its obligations under such Voting Agreement or (3) result in a breach of any covenant, agreement or obligation of such stockholder set forth in such Voting Agreement, or (z) commit or agree to commit to take any of the actions referred to in the immediately preceding clauses (v), (w), (x) or (y).

The foregoing description of the Voting Agreements is qualified in its entirety by reference to the full text of the Voting Agreements, the form of which is attached as Exhibit 10.4, and is incorporated herein by reference.

Subscription Agreements

Additionally, in connection with the Company’s entry into the Merger Agreement, certain members of Company management (the “Subscribers” and, together with the Stockholder Rollover Holders and the SLR Rollover Holders, the “Rollover Holders”) entered into Subscription Agreements, dated as of June 17, 2024, by and between Topco and such members of Company management (the “Subscription Agreements”). Pursuant to and subject to the terms and conditions of the Subscription Agreements, on the closing date of the Merger and immediately following the Effective Time, each Subscriber has agreed to purchase from Topco, a number of Common Units as determined pursuant the applicable Subscription Agreement, at a subscription price of $2.18 per Common Unit, which number of Common Units will, subject to the Subscribers paying the Company prior to the consummation of the Merger an amount of cash equal to the applicable taxes required to be withheld with respect to the vesting and/or settlement or exercise of the Subscriber’s Company Equity Awards, as applicable be determined by calculating (a) all of such Subscriber’s consideration payable (net of withholding taxes, except as otherwise agreed by the Subscriber) in respect of such Subscriber’s Company Equity Awards, divided by (b) a price per Common Unit equal to $2.18. Pursuant to, and upon the terms and subject to the conditions of the Subscription Agreement, each Subscriber also agrees not to (i) transfer any of such Subscriber’s Company Equity Awards or enter any contract, option or other arrangement or understanding with respect to the transfer of any of such Subscriber’s Company Equity Awards or any interest therein, (ii) convert or exchange, or take any action which would, or would reasonably be expected to, result in the conversion or exchange, of any of Subscriber’s Company Equity Awards, (iii) take any action that would, or would reasonably be expected to, (A) make any representation or warranty of such Subscriber in such Subscription Agreement materially untrue or materially incorrect, (B) have the effect of preventing, disabling, or materially delaying such Subscriber from performing any of his or her obligations under such Subscription Agreement or (C) result in a breach of any covenant, agreement or obligation of such Subscriber set forth in such Subscription Agreement, or (iv) commit or agree to commit to take any of the actions referred to in the immediately preceding clauses (i), (ii) or (iii).

The foregoing description of the Subscription Agreements is qualified in its entirety by reference to the full text of the Subscription Agreements, the form of which is attached as Exhibit 10.5, and is incorporated herein by reference.

Warrant Amendment Agreement

Additionally, in connection with the Company’s entry into the Merger Agreement, the Company entered into the Omnibus Warrant Amendment Agreement (the “Warrant Amendment”), dated as of June 17, 2024, by and among the Company and each of the persons identified as a holder on the signature pages thereto the (“SLR Warrant Holders”). Pursuant to the Warrant Amendment, the Company and the SLR Warrant Holders agreed (a) to, effective immediately prior to the consummation of the transactions contemplated by the SLR Rollover Agreement, amend certain warrants to purchase Company Common Stock held by or issued to SLR (as defined below) or any of its affiliates pursuant to the Loan and Security Agreement (as defined below) (the “Warrants”) to provide for the contribution of the Warrants by the SLR Warrant Holders to Topco in connection with the transactions contemplated by the Merger Agreement and the SLR Rollover Agreement, and (b) that immediately prior to the consummation of the transactions contemplated by the SLR Rollover Agreement, that the Company will issue all of the Warrants that are outstanding, or unissued but otherwise due to the SLR Warrant Holders, under the Loan Agreement pursuant to the provisions thereof. The Warrant Amendment also provides that the SLR Warrant Holders will not be entitled to exercise the Warrants (without the prior written consent of the Company) until such time as the Merger Agreement is validly terminated in accordance with its terms prior to the consummation of the Merger.

The foregoing description of the Warrant Amendment is qualified in its entirety by reference to the full text of the Warrant Amendment, a copy of which is attached as Exhibit 4.1, and is incorporated herein by reference.

Amendment to Loan and Security Agreement

On June 17, 2024 (the “Amendment Effective Date”), the Company entered into an Amendment No. 8 to Loan and Security Agreement with SLR Investment Corp., as collateral agent (“SLR” or the “Agent”), and the lenders party thereto (the “Eighth Amendment,” together with the Loan and Security Agreement, the “Amended Loan and Security Agreement”). The Eighth Amendment provided for an interim amendment to the Loan and Security Agreement to be effective between the Amendment Effective Date and the Effective Time (the “Interim Loan Agreement Amendment”). The Interim Loan Agreement Amendment increased the existing senior secured term B loan facility from $4.0 million to $9.0 million (the “Term B Loan Facility”). Borrowings under the Term B Loan Facility will bear interest at a floating rate per annum equal to the sum of (a) 0.10%, plus (b) 8.30% plus (c) CME Term SOFR. The aggregate principal amount outstanding under the Term B Loan Facility will be due and payable on the earlier of (x) the Effective Time and (y) December 31, 2024 (the “Term B Loan Facility Maturity Date”), subject to being automatically extended by an additional 60 days to give effect to the extension of the Outside Date (as provided for and defined in the Merger Agreement). There is no scheduled amortization payments of the principal amounts of the loans outstanding under the Term B Loan Facility. Borrowings under the Term B Loan Facility are available from the Amendment Effective Date until the Term B Loan Facility Maturity Date and will be conditioned on approval by the lenders’ investment committee in its sole discretion. The Interim Loan Agreement Amendment amends the interest rate applicable to the existing senior secured term A loan facility (the “Existing Term A Loan Facility”) to provide for a floating interest rate equal to the sum of (a) CME Term SOFR plus (b) 2.30% plus (c) 7.0%; provided that the portion of such interest rate provided for in this clause (c) will be subject to pricing options as set forth in the Interim Loan Agreement Amendment and partially payable in kind and capitalized and added to the aggregate principal amount outstanding under the Existing Term A Loan Facility. The Eighth Amendment provides for certain covenants requiring the Lenders and Agent to assist with the consummation of the Merger, including permitting certain amendments to the Amended Loan and Security Agreement and other documents contemplated in respect of the transactions contemplated by the Merger Agreement. All other terms and conditions of the Term B Loan Facility and the Existing Term A Loan Facility, including the guarantees and security relating thereto are substantively identical to those provided for under the existing credit facilities under the Amended Loan and Security Agreement.

The Eighth Amendment further provides for an amendment to the Loan and Security Agreement to be effective as of the Effective Time (the “Merger Effective Date Amendment”). After giving effect to the contribution of $74,427,491.93 of Loans outstanding under the Existing Term A Loan Facility to Topco pursuant to the SLR Rollover Agreement, the aggregate principal amount outstanding under the senior secured term A loan facility under the Merger Effective Date Amendment will be reduced from $114,427,491.93 to $40,000,000 (the “Eighth Amendment Term A Loan Facility”). Loans under the Eighth Amendment Term A Loan Facility bear interest at a floating rate per annum equal to the sum of (a) CME Term SOFR (with a floor of 4.50%) plus (b) 6.00%. The aggregate principal amount outstanding under the Eighth Amendment Term A Loan Facility is due and payable on the earlier of (x) the third anniversary of the Merger Effective Date and (y) October 27, 2027 (the “Eight Amendment Term A Loan Facility Maturity Date”). There is no scheduled amortization of the principal amounts of the loans outstanding under the Eighth Amendment Term A Loan Facility. The Merger Effective Date Amendment also provides for revised financial covenant levels applicable to the Eighth Amendment Term A Loan Facility. All other terms and conditions of the Eighth Amendment Term A Loan Facility, including the guarantees and security relating thereto are substantively identical to those provided for under the existing credit facilities under the Amended Loan and Security Agreement.

The foregoing summary of the Eighth Amendment, which includes other customary terms, conditions and restrictions, does not purport to be complete and is subject to, and is qualified in its entirety by, the full text of the Eighth Amendment, which is attached hereto as Exhibit 10.6, and is incorporated herein by reference.

Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

The information set forth under Item 1.01 of this Current Report on Form 8-K is incorporated by reference in this Item 2.03.

Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

On June 17, 2024, the Company’s President and Chief Executive Officer (“CEO”) entered into a side letter with the Company pursuant to which, among other things, the CEO agreed to waive his enhanced severance under the terms of his separation pay agreement with the Company, dated March 24, 2022, in connection with the consummation of the Merger.

Additional Information and Where to Find It

This communication may be deemed solicitation material in respect of the proposed transaction. This communication does not constitute a solicitation of any vote or approval. In connection with the proposed transaction, the Company plans to file with the SEC and mail or otherwise provide to its stockholders a proxy statement regarding the proposed transaction (the “Proxy Statement”), and the Company and affiliates of the Company, and Perceptive and certain affiliates of Perceptive, intend to jointly file a transaction statement on Schedule 13E-3 (the “Schedule 13E-3”). The Company may also file, and the Company and affiliates of the Company, and Perceptive and certain affiliates of Perceptive, may also jointly file, other documents with the SEC regarding the proposed transaction. This document is not a substitute for the proxy statement or any other document that may be filed by the Company with the SEC.

BEFORE MAKING ANY VOTING DECISION, THE COMPANY’S STOCKHOLDERS ARE URGED TO READ THE PROXY STATEMENT AND THE SCHEDULE 13E-3 IN THEIR ENTIRETY WHEN THEY BECOME AVAILABLE AND ANY OTHER DOCUMENTS FILED BY THE COMPANY OR JOINTLY FILED BY THE COMPANY AND AFFILIATES OF THE COMPANY WITH THE SEC IN CONNECTION WITH THE PROPOSED TRANSACTION OR INCORPORATED BY REFERENCE THEREIN BEFORE MAKING ANY VOTING OR INVESTMENT DECISION WITH RESPECT TO THE PROPOSED TRANSACTION BECAUSE THEY CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTION AND THE PARTIES TO THE PROPOSED TRANSACTION.

Any vote in respect of resolutions to be proposed at a stockholders meeting of the Company to approve the proposed transaction or related matters, or other responses in relation to the proposed transaction, should be made only on the basis of the information contained in the Proxy Statement and Schedule 13E-3. Stockholders may obtain a free copy of the Proxy Statement, the Schedule 13E-3 and other documents the Company files with the SEC (when available) through the website maintained by the SEC at www.sec.gov. The Company makes available free of charge on its investor relations website at http://investors.vapotherm.com copies of materials it files with, or furnishes to, the SEC.

The proposed transaction will be implemented solely pursuant to the Merger Agreement, which contains the full terms and conditions of the proposed transaction.

Participants in the Solicitation

The Company, its directors and certain of its officers and employees, are participants in the solicitation of proxies from Company stockholders in connection with the proposed transaction. Information about the Company’s directors and executive officers is set forth in Part III of its Annual Report on Form 10-K/A for the fiscal year ended December 31, 2023, as filed with the SEC on April 29, 2024 (the “Form 10-K/A”). To the extent the holdings of Company securities by the Company’s directors and executive officers have changed since the amounts set forth in the Form 10-K/A, such changes have been or will be reflected on Statements of Changes in Beneficial Ownership on Form 4 filed or to be filed with the SEC. These documents may be obtained free of charge at the SEC’s web site at www.sec.gov and on the Investor Relations page of the Company’s website located at http://investors.vapotherm.com. Additional information regarding the interests of participants in the solicitation of proxies in connection with the proposed transaction, which may, in some cases, be different than those of the Company’s stockholders generally, will be included in the Proxy Statement and other relevant materials to be filed with the SEC.

Cautionary Statement Regarding Forward-Looking Statements

This Current Report on Form 8-K includes statements that are forward-looking statements, including statements regarding the proposed transaction, stockholder approval, the expected timetable for completing the proposed transaction and any other statements regarding the Company’s future expectations, beliefs, plans, objectives, financial conditions, assumptions or future events or performance that are not historical facts. In some cases, you can identify forward-looking statements by terms such as “believe,” “expect,” “continue,” “plan,” “intend,” “will,” “outlook,” or “typically,” or the negative of these terms or other similar expressions, although not all forward-looking statements contain these words, and the use of future dates. This information may involve risks and uncertainties that could cause actual results to differ materially from such forward-looking statements. These risks and uncertainties include, but are not limited to: uncertainties as to how many of the Company’s stockholders will vote their stock in favor of the proposed transaction; uncertainties as to the timing to of the proposed transaction; satisfaction of the conditions precedent to the consummation of the proposed transaction, including the ability to secure stockholder approval on the terms expected, at all or in a timely manner; the occurrence of any event, change or other circumstance that could give rise to the termination of the Merger Agreement, including circumstances requiring a party to pay another party a termination fee pursuant to the Merger Agreement; the ability of the parties to consummate the proposed transaction on a timely basis or at all; the diversion of management’s time on transaction-related issues; the effects of the proposed transaction (or the announcement or pendency thereof) on relationships with associates, customers, manufacturers, suppliers, employees (including the risks relating to the ability to retain or hire key personnel), other business partners or governmental entities; transaction costs; changes in the Company’s business during the period between now and the closing of the proposed transaction certain restrictions during the pendency of the proposed transaction that may impact the Company’s ability to pursue certain business opportunities or strategic transactions; risks associated with litigation; and other risks and uncertainties, including the risks and uncertainties included under the heading “Risk Factors” in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, as filed with the SEC on February 22, 2024, and subsequent SEC reports. The forward-looking statements contained in this communication reflect the Company’s views as of the date hereof, and the Company does not assume and specifically disclaims any obligation to update any forward-looking statements whether as a result of new information, future events or otherwise, except as required by law.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits

Exhibit Number		Description

2.1†		Agreement and Plan of Merger, dated as of June 17, 2024, among Veronica Holdings, LLC, Veronica Intermediate Holdings, LLC, Veronica Merger Sub, Inc., and Vapotherm, Inc.

4.1†		Omnibus Warrant Amendment Agreement, dated as of June 17, 2024, by and among the Company and each of the Holders party thereto.

10.1†		Form of Stockholder Rollover Agreement (Company Insider).

10.2†		Form of Stockholder Rollover Agreement (Non-Company Insider).

10.3†		Form of SLR Rollover Agreement.

10.4		Form of Voting Agreement (Non-Company Insider).

10.5†		Form of Subscription Agreement.

10.6†		Amendment No. 8 to Loan and Security Agreement, dated as of June 17, 2024, among Vapotherm, Inc., SLR Investment Corp., as Collateral Agent, and the Lenders Party Thereto.

104		Cover Page Interactive Data File, formatted in Inline XBRL.

†	Certain of the exhibits and schedules to this exhibit have been omitted in accordance with Regulation S-K Item 601(b)(2). The Registrant agrees to furnish supplementally a copy of all omitted exhibits and schedules to the SEC upon its request.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

Date: June 20, 2024

	Vapotherm, Inc.

	By:	/s/ John Landry
	Name: John Landry
	Title: Senior Vice President and Chief Financial Officer

Exhibit 2.1

Execution Version

AGREEMENT AND PLAN OF MERGER

among

VERONICA HOLDINGS, LLC

VERONICA INTERMEDIATE HOLDINGS, LLC

VERONICA MERGER SUB, INC.

and

VAPOTHERM, INC.

Dated as of June 17, 2024

TABLE OF CONTENTS

		Page

ARTICLE I THE MERGER		3
Section 1.1.	The Merger	3
Section 1.2.	Closing; Effective Time	4
Section 1.3.	Effects of the Merger	4
Section 1.4.	Certificate of Incorporation and Bylaws of the Surviving Corporation	4
Section 1.5.	Directors and Officers	4
Section 1.6.	Company Share Consideration Adjustment	5
Section 1.7.	Post-Closing Contribution to the Surviving Corporation	5
ARTICLE II EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE COMPANY AND ITS SUBSIDIARIES		5
Section 2.1.	Conversion of Securities	5
Section 2.2.	Treatment of Equity Awards and ESPP	6
Section 2.3.	SLR Warrants and Contributed SLR Loan Receivables	10
Section 2.4.	Comerica Warrants	11
Section 2.5.	2023 Pre-Funded Warrants	11
Section 2.6.	2023 Warrants	11
Section 2.7.	Dissenting Shares	11
Section 2.8.	Paying Agent Matters; Exchange Payment; Surrender of Shares	12
Section 2.9.	Section 16 Matters	15
Section 2.10.	Withholding	15
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY		16
Section 3.1.	Organization and Corporate Power	16
Section 3.2.	Authorization; Valid and Binding Agreement	17
Section 3.3.	Capital Stock	18
Section 3.4.	Subsidiaries	19
Section 3.5.	No Breach	19
Section 3.6.	Consents	20
Section 3.7.	SEC Reports; Disclosure Controls and Procedures	20
Section 3.8.	Indebtedness; No Undisclosed Liabilities	22
Section 3.9.	Absence of Certain Developments	22
Section 3.10.	Compliance with Laws	22
Section 3.11.	Title to Tangible Properties	23

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Section 3.12.	Tax Matters	24
Section 3.13.	Contracts and Commitments	26
Section 3.14.	Intellectual Property	28
Section 3.15.	Litigation	29
Section 3.16.	Insurance	30
Section 3.17.	Employee Benefit Plans	30
Section 3.18.	Environmental Compliance and Conditions	32
Section 3.19.	Employment and Labor Matters	33
Section 3.20.	Company Products	34
Section 3.21.	Information Technology; Privacy and Data Security	34
Section 3.22.	Anti-Corruption Laws; Anti-Money Laundering Laws; Global Trade Laws	35
Section 3.23.	Brokerage	35
Section 3.24.	Information Supplied	35
Section 3.25.	Anti-Takeover Laws; No Rights Agreement	36
Section 3.26.	Opinion	36
Section 3.27.	Government Contracts	36
Section 3.28.	Health Care Regulatory Approvals	38
Section 3.29.	Health Care Regulation	39
Section 3.30.	Company Related Party Transactions	40
Section 3.31.	No Other Representations and Warranties	40
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF TOPCO, PARENT AND MERGER SUB		41
Section 4.1.	Organization and Corporate Power	41
Section 4.2.	Authorization; Valid and Binding Agreement	41
Section 4.3.	No Breach	41
Section 4.4.	Consents	42
Section 4.5.	Litigation	42
Section 4.6.	Information Supplied	42
Section 4.7.	Brokerage	42
Section 4.8.	Capitalization and Operations of Merger Sub	42
Section 4.9.	Ownership of Shares	43
Section 4.10.	Vote/Approval Required	43
Section 4.11.	Solvency	43

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Section 4.12.	Investigation by Topco, Parent and Merger Sub; Disclaimer of Reliance	43
Section 4.13.	Other Agreements	45
Section 4.14.	Financing	45
Section 4.15.	CFIUS	46
Section 4.16.	Tax Matters	46
Section 4.17.	No Other Representations and Warranties	47
ARTICLE V COVENANTS		47
Section 5.1.	Covenants of the Company	47
Section 5.2.	Access to Information; Confidentiality; Additional Rollover Agreements	51
Section 5.3.	Acquisition Proposals	52
Section 5.4.	Proxy Statement; Schedule 13E-3	57
Section 5.5.	Company Stockholder Meeting	59
Section 5.6.	Employment and Employee Benefits Matters	60
Section 5.7.	Directors’ and Officers’ Indemnification and Insurance	61
Section 5.8.	Further Action; Efforts	63
Section 5.9.	Public Announcements	65
Section 5.10.	Conduct of Topco, Parent and Merger Sub	66
Section 5.11.	No Control of the Company’s Business	67
Section 5.12.	Operations of Merger Sub	67
Section 5.13.	Ownership of Company Securities	67
Section 5.14.	Stockholder Litigation	68
Section 5.15.	Financing	68
Section 5.16.	Further Assurances	68
Section 5.17.	State Takeover Laws	69
Section 5.18.	Director Resignations	69
Section 5.19.	FIRPTA Certificate	69
Section 5.20.	Notice of Certain Events	69
Section 5.21.	Stock Exchange Delisting; Deregistration	69
Section 5.22.	Credit Agreement	70
Section 5.23.	Certain Other Tax Matters	70
Section 5.24.	Additional Rollover Agreements	70
Section 5.25.	Additional Subscriptions	71

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ARTICLE VI CONDITIONS OF MERGER		71
Section 6.1.	Conditions to Obligation of Each Party to Effect the Merger	71
Section 6.2.	Conditions to the Obligation of Parent and Merger Sub to Effect the Merger	71
Section 6.3.	Conditions to the Company’s Obligation to Effect the Merger	73
ARTICLE VII TERMINATION, AMENDMENT AND WAIVER		73
Section 7.1.	Termination by Mutual Agreement	73
Section 7.2.	Termination by Either Parent or the Company	73
Section 7.3.	Termination by the Company	74
Section 7.4.	Termination by Parent	75
Section 7.5.	Effect of Termination	75
Section 7.6.	Expenses	79
Section 7.7.	Amendment and Waiver	80
ARTICLE VIII GENERAL PROVISIONS		80
Section 8.1.	Non-Survival of Representations, Warranties, Covenants and Agreements	80
Section 8.2.	Notices	81
Section 8.3.	Certain Definitions	82
Section 8.4.	Severability	100
Section 8.5.	Assignment	101
Section 8.6.	Entire Agreement; Third-Party Beneficiaries	101
Section 8.7.	Governing Law	102
Section 8.8.	Headings	102
Section 8.9.	Counterparts	102
Section 8.10.	Merger Sub Performance	102
Section 8.11.	Jurisdiction; Waiver of Jury Trial	102
Section 8.12.	Service of Process	103
Section 8.13.	Specific Performance	103
Section 8.14.	Interpretation	103
Section 8.15.	No Recourse	104
Section 8.16.	Non-Impairment	105

Exhibits

Exhibit A SLR Warrant Amendment Agreement

Exhibit B SLR Rollover Agreement

Exhibit C Stockholder Rollover Agreement

Exhibit D Form of Certificate of Incorporation of the Surviving Corporation

Exhibit E Form of Bylaws of the Surviving Corporation

Exhibit F SLR Financing Agreements

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AGREEMENT AND PLAN OF MERGER

AGREEMENT AND PLAN OF MERGER, dated as of June 17, 2024 (this “Agreement”), among Veronica Holdings, LLC, a Delaware limited liability company (“Topco”), Veronica Intermediate Holdings, LLC, a Delaware limited liability company and wholly-owned subsidiary of Topco (“Parent”), Veronica Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), and Vapotherm, Inc., a Delaware corporation (the “Company”).

WHEREAS, upon the terms and subject to the conditions set forth herein, Merger Sub will merge with and into the Company (the “Merger”) in accordance with the General Corporation Law of the State of Delaware (the “DGCL”), with the Company surviving the Merger as a wholly owned subsidiary of Parent;

WHEREAS, the board of directors of the Company (the “Company Board”) established a special committee of the Company Board consisting of independent and disinterested directors (the “Special Committee”) to, among other things, review, evaluate and negotiate this Agreement, the Merger and the other Contemplated Transactions and, if the Special Committee deems appropriate, recommend that the Company Board approve this Agreement, the other Transactions Documents and the SLR Financing Agreements, in each case, to which the Company is a party and the execution and delivery hereof and thereof by the Company;

WHEREAS, the Special Committee has (i) determined that the Merger and the other Contemplated Transactions are advisable, fair to and in the best interests of the Company, (ii) recommended that the Company Board (A) approve and declare advisable that the Company enter into this Agreement, the other Transactions Documents and the SLR Financing Agreements to which the Company is a party and perform its covenants and other obligations herein and therein, and consummate the Contemplated Transactions, including the Merger, upon the terms and subject to the conditions set forth herein and therein and (B) direct that the adoption of this Agreement be submitted to a vote of the Company’s stockholders at a meeting of the Company’s stockholders and (iii) subject to the terms and conditions of this Agreement, recommended that the Company’s stockholders approve the adoption of this Agreement and approve the Merger on the terms and subject to the conditions set forth in this Agreement.

WHEREAS, the Company Board (acting upon the recommendation of the Special Committee) has (i) determined that the Merger and the other Contemplated Transactions are advisable, fair to and in the best interests of the Company and the Company’s stockholders (other than Parent and its Affiliates and any Rollover Holders), (ii) approved and declared advisable that the Company enter into this Agreement, the other Transaction Documents and the SLR Financing Agreements to which the Company is a party and perform its covenants and other obligations herein and therein, and consummate the Contemplated Transactions, including the Merger, upon the terms and subject to the conditions set forth herein and therein, (iii) directed that the adoption of this Agreement be submitted to a vote of the Company’s stockholders at a meeting of the Company’s stockholders and (iv) subject to the terms and conditions of this Agreement, recommended that the Company’s stockholders approve the adoption of this Agreement and approve the Merger on the terms and subject to the conditions set forth in this Agreement (the “Company Board Recommendation”);

WHEREAS, the sole member of Parent and board of directors of Merger Sub each have, on the terms and subject to the conditions set forth herein, approved this Agreement and the Contemplated Transactions, including the Merger, and declared it advisable for Parent and Merger Sub, respectively, to enter into this Agreement;

WHEREAS, concurrently with the execution of this Agreement, and as a condition and inducement to the Company’s willingness to enter into this Agreement, Parent and Perceptive Advisors, LLC (“Parent Sponsor”) have each duly executed an equity commitment letter, dated as of the date hereof (together with all exhibits, schedules and annexes thereto, the “Equity Commitment Letter”), pursuant to which among other things, upon the terms and subject to the conditions set forth therein, Parent Sponsor has agreed to, directly or indirectly, provide the Equity Financing (as defined below) to Parent or fund monetary damages up to the amount of the Damages Commitment, in the case of the Equity Financing, first by contributing, substantially simultaneously with the SLR Rollover Contribution (as defined below), each Stockholder Rollover Contribution (as defined below), each Additional Rollover Contribution (as defined below), if any, and each Additional Subscription (as defined below), if any, the Closing Payment Commitment to Topco in exchange for Topco Series A Preferred Units of Topco (“Topco Series A Preferred Units”) pursuant to that certain Contribution Agreement, to be entered into as of the Closing Date, as among Parent Sponsor, Topco, Parent and the Company, in a form to be mutually acceptable to Parent, SLR and the Company (the “Parent Sponsor Contribution Agreement,” and such contribution, the “Parent Sponsor Contribution”);

WHEREAS, concurrently with the execution of this Agreement and as a condition and inducement to Topco’s and Parent’s willingness to enter into this Agreement, SLR and the Company are entering into an Omnibus Warrant Amendment Agreement, dated as of the date hereof, which is attached hereto as Exhibit A (as may be amended in accordance with its terms, the “SLR Warrant Amendment Agreement”), pursuant to which, among other things, each SLR Warrant (as defined below) will be amended to permit such SLR Warrant to be contributed by SLR to Topco in connection with the Contemplated Transactions and as contemplated by the SLR Rollover Agreement, in each case, immediately prior to the Effective Time;

WHEREAS, concurrently with the execution of this Agreement and as an inducement to and condition of the Company’s, Topco’s and Parent’s willingness to enter into this Agreement, SLR is entering into a Rollover Agreement, dated as of the date hereof, which is attached hereto as Exhibit B (the “SLR Rollover Agreement”), pursuant to which, among other things, SLR agrees that, substantially simultaneously with the Parent Sponsor Contribution, each Stockholder Rollover Contribution, each Additional Rollover Contribution, if any, and each Additional Subscription, if any, the SLR Warrants and certain of SLR’s loans and accrued but unpaid interest and fees under the Credit Agreement (the “Contributed SLR Loan Receivables”) shall be contributed to Topco in exchange for Topco Series A Preferred Units and Common Units of Topco (“Topco Common Units”) (such contribution, the “SLR Rollover Contribution”), and such Contributed SLR Loan Receivables and SLR Warrants shall thereafter be contributed from Topco to Parent;

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WHEREAS, concurrently with the execution of this Agreement and as an inducement to and condition of the Company’s, Topco’s and Parent’s willingness to enter into this Agreement, each Rollover Holder is entering into a Rollover Agreement, dated as of the date hereof, which are attached hereto as Exhibit C (each, a “Stockholder Rollover Agreement” and, collectively, the “Stockholder Rollover Agreements”), pursuant to which, among other things, each Rollover Holder agrees that all or some of its shares of Company Common Stock shall be contributed, substantially simultaneously with the Parent Sponsor Contribution, the SLR Rollover Contribution, each Additional Rollover Contribution, if any, and each Additional Subscription, if any, to Topco in exchange for Topco Common Units immediately prior to the Effective Time (each such contribution, a “Stockholder Rollover Contribution”), and such Company Common Stock shall thereafter be contributed from Topco to Parent;

WHEREAS, for U.S. federal, and applicable state and local, income tax purposes, (i) the Parent Sponsor Contribution, the SLR Rollover Contribution (other than with respect to certain accrued but unpaid interest and fees under the Credit Agreement), each Stockholder Rollover Contribution, each Additional Rollover Contribution, if any, and each Additional Subscription, if any, taken together, are intended to constitute an integrated transaction under Section 351 of the Code (the “Intended Contribution Tax Treatment”), and (ii) for purposes of determining the fair market value of the Contributed SLR Loan Receivables (or any applicable portion thereof), the fair market value of the Contributed SLR Loan Receivables and the SLR Warrants are intended to be equal to the fair market value of the Topco Series A Preferred Units and the Topco Common Units received by SLR in connection with the SLR Rollover Contribution pursuant to the SLR Rollover Agreement (the “Intended SLR Loan Tax Treatment” and collectively with the Intended Contribution Tax Treatment, the “Intended Tax Treatment”);

WHEREAS, concurrently with the execution of this Agreement, and as a condition and inducement to Parent’s willingness to enter into this Agreement, certain holders of shares of Company Common Stock are entering into a voting and support agreement (each, a “Support Agreement” and, collectively, the “Support Agreements”), pursuant to which and subject to the terms and conditions set forth therein, each such holder shall agree to, among other things, vote in favor of the Merger; and

WHEREAS, Parent, as sole stockholder of Merger Sub, will adopt this Agreement immediately following its execution and delivery.

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein contained, and intending to be legally bound hereby, Parent, Merger Sub and the Company hereby agree as follows:

ARTICLE I
THE MERGER

Section 1.1. The Merger. Upon the terms and subject to the conditions of this Agreement and in accordance with the DGCL (including Section 251 of the DGCL), at the Effective Time, Merger Sub will be merged with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub will cease, and the Company will continue as the surviving corporation of the Merger and as a wholly owned Subsidiary of Parent (the “Surviving Corporation”). Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, all the property, rights, privileges, powers and franchises of the Company and Merger Sub will be vested in the Surviving Corporation, and all obligations, debts, liabilities and duties of the Company and Merger Sub will be the obligations, debts, liabilities and duties of the Surviving Corporation.

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Section 1.2. Closing; Effective Time. Subject to the provisions of this Agreement and pursuant to the DGCL, (i) the closing of the Merger and (ii) the deposit of cash by Parent with the Paying Agent and the payment of cash by Parent to the Company, in each case, pursuant to Section 2.8 (collectively, the “Closing”) will take place on the third (3rd) Business Day after the satisfaction or, to the extent permitted by applicable Law, waiver of the conditions set forth in Article VI (excluding conditions that, by their terms, cannot be satisfied until the Closing, but subject to the satisfaction or, to the extent permitted by applicable Law, waiver of such conditions at the Closing) by electronic exchange of deliverables, unless another date, time or place is agreed to in writing by the parties hereto (such date, the “Closing Date”). At the Closing, the parties hereto shall cause the Merger to be consummated by filing a certificate of merger (the “Certificate of Merger”) with the Secretary of State of the State of Delaware, in such form as is mutually agreeable to the Company and Parent and required by, and executed in accordance with, the relevant provisions of the DGCL (the date and time of the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, or such later time as is agreed to by Merger Sub and the Company in writing and specified in the Certificate of Merger, being hereinafter referred to as the “Effective Time”) and shall make all other filings or recordings required under the DGCL in connection with the Merger. The Merger shall become effective upon the Effective Time.

Section 1.3. Effects of the Merger. The Merger will have the effects set forth herein, in the Certificate of Merger and in the DGCL.

Section 1.4. Certificate of Incorporation and Bylaws of the Surviving Corporation.

(a) At the Effective Time, by virtue of the Merger, the certificate of incorporation of the Company as in effect immediately prior to the Effective Time will be amended and restated to read in its entirety as set forth on Exhibit D attached hereto and, as so amended and restated, will be the certificate of incorporation of the Surviving Corporation until thereafter amended in accordance with its terms and as provided by applicable Law, subject to Section 5.7.

(b) At the Effective Time, by virtue of the Merger, the bylaws of the Company as in effect immediately prior to the Effective Time will be amended and restated to read in their entirety as set forth on Exhibit E attached hereto and, as so amended, will be the bylaws of the Surviving Corporation until thereafter amended in accordance with its terms and the terms of the certificate of incorporation of the Surviving Corporation and as provided by applicable Law.

Section 1.5. Directors and Officers. The directors of Merger Sub immediately prior to the Effective Time will be the initial directors of the Surviving Corporation, and the officers of the Company immediately prior to the Effective Time will be the initial officers of the Surviving Corporation, in each case, until the earlier of his or her death, resignation, or removal, or until his or her successor is duly elected and qualified.

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Section 1.6. Company Share Consideration Adjustment. The Company Share Consideration will be adjusted appropriately to reflect any reclassification, recapitalization, stock split (including a reverse stock split), or division, subdivision, combination, exchange or readjustment of shares, any stock dividend or stock distribution occurring (or for which a record date is established) or any other similar transaction between the date of this Agreement and the Effective Time so as to provide any holder of Shares that receives Company Share Consideration with the same economic effect as contemplated by this Agreement, it being understood that nothing in this Section 1.6 shall be construed to permit the Company or any other Person to take any action that is prohibited by the terms of this Agreement.

Section 1.7. Post-Closing Contribution to the Surviving Corporation. Upon the terms and subject to the conditions of this Agreement, immediately following the Effective Time, Parent shall pay (or cause to be paid), by wire transfer of immediately available funds, to the Surviving Corporation, an amount equal to (a) all of the cash held by Parent following the Effective Time, including the balance of the Closing Payment Commitment made by Parent Sponsor to Parent (indirectly through Topco) pursuant to the Equity Commitment Letter and the Parent Sponsor Contribution Agreement and any other contributions made, directly or indirectly, to the capital of Parent (which, for the avoidance of doubt, will be net of the Total Merger Consideration paid by Parent at or prior to the Effective Time to the Paying Agent and the Company (with respect to the Equity Award Consideration), as contemplated by this Agreement in connection with, and for the purpose of consummating, the Contemplated Transactions), less (b) without duplication of any amounts netted pursuant to the parenthetical in the immediately preceding clause (a), an amount equal to the documented, out-of-pocket expenses, up to the Parent Reimbursement Cap, applicable to fees and expenses of Parent Sponsor, Topco, Parent, Merger Sub and their respective Affiliates incurred in connection with the Contemplated Transactions for which reasonable documentation evidencing the incurrence of such fees and expenses has been provided by Parent to the Company at least two (2) Business Days prior to the Effective Time, which shall be retained by Parent Sponsor, Topco or Parent and their respective Affiliates in satisfaction of such obligation of the Surviving Corporation pursuant to the Equity Commitment Letter. Any retained portion of the expenses withheld pursuant to the immediately preceding clause (b) (subject to the Parent Reimbursement Cap) shall be deemed to have been contributed from Parent Sponsor to Topco in exchange for Topco Series A Preferred Units issued by Topco to Parent Sponsor, and thereafter contributed from Topco to Parent as a contribution to Parent’s capital.

ARTICLE II
EFFECT OF THE MERGER ON THE CAPITAL STOCK
OF THE COMPANY AND ITS SUBSIDIARIES

Section 2.1. Conversion of Securities. At the Effective Time, by virtue of the Merger and without any further action on the part of Parent, Merger Sub, the Company or the holders of any of the following securities, the following will occur:

(a) each issued and outstanding share of common stock, par value $0.001 per share, of the Company (“Company Common Stock”, and each such share of Company Common Stock, a “Share” and, collectively, the “Shares”), immediately prior to the Effective Time (other than any Shares described in Section 2.1(b) and any Dissenting Shares) will be converted into the right to receive an amount in cash equal to $2.18, without interest (the “Per Share Merger Consideration”), and as of the Effective Time, all such Shares will no longer be outstanding and will automatically be cancelled and will cease to exist, and each holder of thereof will cease to have any rights with respect thereto, except the right to receive the Per Share Merger Consideration payable with respect to such Shares in accordance with Section 2.8;

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(b) (i) each Share held in the treasury of the Company or owned by the Company or any direct or indirect wholly owned Subsidiary of the Company immediately prior to the Effective Time will be cancelled and retired without any conversion thereof and will cease to exist and no payment or distribution will be made with respect thereto, (ii) each Share owned by Parent, Merger Sub or any direct or indirect wholly owned Subsidiary of Parent or Merger Sub immediately prior to the Effective Time (other than the Rollover Shares contributed to Topco pursuant to the Stockholder Rollover Agreements and the Additional Rollover Agreements (if any)), will be cancelled and retired without any conversion thereof and will cease to exist and no payment or distribution will be made with respect thereto, subject to any applicable withholding Tax pursuant to Section 2.10, and (iii) each Rollover Share will remain outstanding and represent one (1) fully paid and non-assessable share of common stock of the Surviving Corporation and no payment or distribution will be made with respect thereto pursuant to Section 2.1(a);

(c) each share of common stock of Merger Sub issued and outstanding immediately prior to the Effective Time will be converted into one (1) fully paid and non-assessable share of common stock of the Surviving Corporation; and

(d) each Dissenting Share will be cancelled and retired without any conversion thereof and will cease to exist, and Dissenting Shares will thereafter only represent the right to receive payment pursuant to Section 262 of the DGCL and as described in Section 2.7.

Section 2.2. Treatment of Equity Awards and ESPP.

(a) Company RSU Awards.

(i) Except as otherwise agreed to in writing between Parent, the Company and a holder of a Company RSU Award (including as contemplated by Section 2.2(a)(ii)), at the Effective Time, each outstanding Company RSU Award, whether vested or unvested, will, automatically and without any required action on the part of the holder thereof, be cancelled and converted into the right to receive an amount of cash (without interest and subject to applicable Tax withholdings) equal to (A) the total number of shares of Company Common Stock subject to the portion of each Company RSU Award that is vested immediately prior to the Effective Time in accordance with its terms (including any portion of such Company RSU Award that becomes vested as a result of the Contemplated Transactions), multiplied by (B) the Per Share Merger Consideration (the “Company RSU Consideration”), which Company RSU Consideration will be payable net of applicable Taxes required to be withheld with respect to such payment.

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(ii) The Company acknowledges that, subject to Parent’s and Topco’s compliance with Section 5.24, Parent and Topco may seek, prior to the Closing, to agree with a holder of a Company RSU Award that, effective as of immediately following the Effective Time, such holder shall use all of such holder’s Company RSU Consideration payable pursuant to Section 2.2(a)(i), at the election of the holder of such Company RSU Award, net of any applicable withholding Taxes (with respect to each such holder, the “Rollover Company RSU Consideration”), to subscribe for a number of Topco Common Units equal to (1) such holder’s Rollover Company RSU Consideration, divided by (2) the Per Share Merger Consideration; provided that, solely for purposes of administrative convenience, such Topco Common Units shall be provided to such holder in lieu of the Rollover Company RSU Consideration in full satisfaction of all rights to receive such Rollover Company RSU Consideration, and such holder shall be deemed to have received the Rollover Company RSU Consideration (including, for the avoidance of doubt, any amounts subject to applicable Tax withholdings if such holder does not otherwise elect to satisfy all applicable Tax withholding obligations arising from the vesting of the Company RSU Award at the Effective Time through a payment to the Company in cash on or prior to the Closing) and thereafter immediately contributed the Rollover Company RSU Consideration to Topco in exchange for such Topco Common Units. In lieu of the foregoing, Parent and Topco and the holder of a Company RSU Award may agree that such holder’s Company RSU Award may be settled in exchange for shares of Company Common Stock subject to such Company RSU Award prior to the Closing, with the holder of such Company RSU Award satisfying all applicable withholding obligations arising from the vesting of the Company RSU Award at the Effective Time through a payment to the Company in cash on or prior to the Closing, and such shares of Company Common Stock shall be treated as Rollover Shares subject to the Additional Rollover Agreement among Parent, Topco and such holder. The Company agrees that, to the extent that Parent has identified to the Company in writing, at least ten (10) Business Days prior to the Closing, the individuals with whom it intends to seek agreement with respect to a Rollover Company RSU Consideration, the Company shall use commercially reasonable efforts from and after such identification to permit Topco and Parent to contact such persons directly and reasonably facilitate discussions between such persons and Parent and Topco with respect to the subscription for Topco Common Units, as provided in this Section 2.2(a)(ii) (the “Company RSU Rollover Agreements”).

(b) Company PSU Awards.

(i) Except as otherwise agreed to in writing between Parent, the Company and a holder of a Company PSU Award (including as contemplated by Section 2.2(b)(ii)), at the Effective Time, each outstanding Company PSU Award will, automatically and without any required action on the part of the holder thereof, be cancelled and converted into the right to receive an amount of cash (without interest and subject to applicable Tax withholdings) equal to (A) the total number of shares of Company Common Stock subject to such Company PSU Award to the extent vested immediately prior to the Effective Time in accordance with its terms (with the vesting level determined assuming target performance is achieved (or such higher level if required under the terms of such Company PSU Award)), multiplied by (B) the Per Share Merger Consideration (the “Company PSU Consideration”), which Company PSU Consideration will be payable net of applicable Taxes required to be withheld with respect to such payment.

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(ii) The Company acknowledges that, subject to Parent’s and Topco’s compliance with Section 5.24, Parent and Topco may seek, prior to the Closing, to agree with a holder of a Company PSU Award that, immediately following the Effective Time, such holder shall use all of such holder’s Company PSU Consideration payable pursuant to Section 2.2(b)(i), at the election of the holder of such Company PSU Award, net of any applicable withholding Taxes (with respect to each such holder, the “Rollover Company PSU Consideration”), to subscribe for a number of Topco Common Units equal to (1) such holder’s Rollover Company PSU Consideration, divided by (2) the Per Share Merger Consideration; provided that, solely for purposes of administrative convenience, such Topco Common Units shall be provided to such holder in lieu of the Rollover Company PSU Consideration in full satisfaction of all rights to receive such Rollover Company PSU Consideration, and such holder shall be deemed to have received the Rollover Company PSU Consideration (including, for the avoidance of doubt, any amounts subject to applicable Tax withholdings if such holder does not otherwise elect to satisfy all applicable Tax withholding obligations arising from the vesting of the Company PSU Award at the Effective Time through a payment to the Company in cash on or prior to the Closing) and thereafter immediately contributed the Rollover Company PSU Consideration to Topco in exchange for such Topco Common Units. In lieu of the foregoing, Parent and Topco and the holder of a Company PSU Award may agree that such holder’s Company PSU Award may be settled in exchange for shares of Company Common Stock subject to such Company PSU Award prior to the Closing, with the holder of such Company PSU Award satisfying all applicable withholding obligations arising from the vesting of the Company PSU Award (assuming target performance is achieved (or such higher level if required under the terms of such Company PSU Award)) at the Effective Time through a payment to the Company in cash on or prior to the Closing, and such shares of Company Common Stock shall be treated as Rollover Shares subject to the Additional Rollover Agreement among Parent, Topco and such holder. The Company agrees that, to the extent that Parent has identified to the Company in writing, at least ten (10) Business Days prior to the Closing, the individuals with whom it intends to seek agreement with respect to a Rollover Company PSU Consideration, the Company shall use commercially reasonable efforts from and after such identification to permit Topco and Parent to contact such persons directly, and reasonably facilitate discussions between such persons and Parent and Topco with respect to the subscription for Topco Common Units as provided in this Section 2.2(b)(ii) (the “Company PSU Rollover Agreements”).

(i) Except as otherwise agreed to in writing between Parent, the Company and the applicable holder of a Company Stock Option (including as contemplated by Section 2.2(c)(ii)), at the Effective Time, each outstanding Company Stock Option (other than a Company Out-of-the-Money Option), whether vested or unvested, will, automatically and without any required action on the part of the holder thereof, be cancelled and converted into the right to receive an amount of cash (without interest and subject to applicable Tax withholding) equal to (i) the total number of shares of Company Common Stock subject to such Company Stock Option to the extent vested immediately prior to the Effective Time in accordance with its terms (including any portion of such Company Stock Option that becomes vested as a result of the Contemplated Transactions), multiplied by (ii) the excess, if any, of the Per Share Merger Consideration over the applicable exercise price per share of Company Common Stock subject to such Company Stock Option (the “Company Stock Option Consideration”), which Company Stock Option Consideration will be payable net of applicable Taxes required to be withheld with respect to such payment. Notwithstanding anything herein to the contrary, each Company Out-of-the-Money Option, whether vested or unvested, will be cancelled at the Effective Time for no consideration.

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(ii) The Company acknowledges that, subject to Parent’s and Topco’s compliance with Section 5.24, Parent and Topco may seek, prior to the Closing, to agree with a holder of a Company Stock Option that, immediately following the Effective Time, such holder shall use all of such holder’s Company Stock Option Consideration payable pursuant to Section 2.2(c)(ii), at the election of the holder of such Company Stock Option, net of applicable withholding Taxes (with respect to each such holder, the “Rollover Company Stock Option Consideration”) to subscribe for a number of Topco Common Units equal to (1) such holder's Rollover Company Stock Option Consideration, divided by (2) the Per Share Merger Consideration; provided that, solely for purposes of administrative convenience, such Topco Common Units shall be provided to such holder in lieu of the Rollover Company Stock Option Consideration in full satisfaction of all rights to receive such Rollover Company Stock Option Consideration, and such holder shall be deemed to have received the Rollover Company Stock Option Consideration (including, for the avoidance of doubt, any amounts subject to applicable Tax withholdings if such holder does not otherwise elect to satisfy all applicable withholding obligations arising from the exercise of the Company Stock Option at the Effective Time through a payment to the Company in cash on or prior to the Closing) and thereafter immediately contributed the Rollover Company Stock Option Consideration to Topco in exchange for such Topco Common Units. In lieu of the foregoing, Parent and Topco and the holder of a Company Stock Option may agree that such holder shall exercise such Company Stock Option in exchange for shares of Company Common Stock subject to such Company Stock Option prior to the Closing, with the holder of such Company Stock Option satisfying all applicable withholding obligations arising from the exercise of the Company Stock Option at the Effective Time through a payment to the Company in cash on or prior to the Closing, and such shares of Company Common Stock shall be treated as Rollover Shares subject to the Additional Rollover Agreement among Parent, Topco and such holder. The Company agrees that, to the extent that Parent has identified to the Company in writing, at least ten (10) Business Days prior to the Closing, the individuals with whom it intends to seek agreement with respect to Rollover Company Stock Option Consideration, the Company shall use commercially reasonable efforts from and after such identification to permit Topco and Parent to contact such persons directly, and facilitate discussions, between such persons and Parent and Topco with respect to such options to purchase Topco Common Units as provided in this Section 2.2(c)(ii) (the “Company Stock Option Rollover Agreements”).

(d) Payment Procedures. As promptly as reasonably practicable following the Closing Date, but in no event later than the first regularly scheduled payroll date that is at least five (5) Business Days following the Closing Date, the Surviving Corporation, through its (or one of its Subsidiary’s) payroll system or payroll provider (or, in the case of any Company Equity Award that is held by a non-employee director or other non-employee Company service provider that received such Company Equity Award in such capacity, through the Company’s standard accounts payable procedures), shall pay to the applicable former holders of Company RSU Awards, Company PSU Awards and Company Stock Options (other than with respect to the Rollover Company RSU Consideration, the Rollover Company PSU Consideration and the Rollover Company Stock Option Consideration) an amount equal to the Company RSU Consideration, Company PSU Consideration and Company Stock Option Consideration, respectively, required to be paid to such former holders pursuant to this Section 2.2 (which amount will be payable net of any applicable withholding Tax pursuant to Section 2.10, except as provided herein). The cash amount of the Company RSU Consideration, Company PSU Consideration and Company Stock Option Consideration are collectively referred to herein as the “Equity Award Consideration”. For the avoidance of doubt, solely for purposes of administrative convenience, no payment of cash will be made pursuant to this Section 2.2(d) with respect to the Rollover Company RSU Consideration, the Rollover Company PSU Consideration or the Rollover Company Stock Option Consideration, and such amounts are not included in the Equity Award Consideration.

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(e) Necessary Further Actions. The Company Board (or, if appropriate, any committee thereof) will take all action reasonably necessary or required to effect the treatment of Company Equity Awards under this Section 2.2 (including the satisfaction of the requirements of Rule 16b-3(e) promulgated under the Exchange Act). All Company Equity Plans and awards thereunder will terminate as of the Effective Time (but subject to the consummation of the Merger). At least five (5) Business Days prior to the Closing Date, Parent and its counsel shall have the right to review and comment on all resolutions to be adopted by the Company Board (or a duly authorized committee thereof) pursuant to this Section 2.2, and the Company shall reflect all reasonable and timely provided comments of Parent made in good faith thereon.

(f) Treatment of Company ESPP. As soon as practicable following the date of this Agreement, the Company and the Company Board (or, if appropriate, any committee thereof) will take all actions that the Company and the Company Board (or, if appropriate, any committee thereof) determine to be reasonably necessary (including the adoption of resolutions) to (i) cause the offering period under the Company ESPP that is ongoing as of the date of this Agreement to be the final offering period under the Company ESPP and the options under the Company ESPP to be exercised on the earlier of (A) the scheduled purchase date for such offering period and (B) the date that is five (5) Business Days prior to the Closing Date (with any participant payroll deductions not applied to the purchase of shares of Company Common Stock pursuant to the Company ESPP promptly returned to the participant), (ii) prohibit any individual who is not participating in the Company ESPP as of the date of this Agreement from commencing participation in the Company ESPP following the date of this Agreement, (iii) prohibit participants in the Company ESPP from increasing their payroll deductions from those payroll deductions in effect as of the date of this Agreement and (iv) terminate the Company ESPP effective as of, and subject to, the Effective Time. At least five (5) Business Days prior to the Closing Date, Parent and its counsel shall have the right to review and comment on all resolutions to be adopted by the Company Board (or a duly authorized committee thereof) pursuant to this Section 2.2(f), and the Company shall reflect all reasonable and timely provided comments of Parent made in good faith thereon.

Section 2.3. SLR Warrants and Contributed SLR Loan Receivables. Immediately prior to the Effective Time and pursuant to the terms and subject to the conditions of the SLR Rollover Agreement, the SLR Warrants and the Contributed SLR Loan Receivables shall be contributed to Topco in exchange for Topco Series A Preferred Units and Topco Common Units, and subsequent to the consummation of the Merger and certain other transactions, the SLR Warrants and Contributed SLR Loan Receivables shall thereafter be contributed by Topco to Parent, and immediately upon receipt by Parent thereof, the SLR Warrants and Contributed SLR Loan Receivables shall thereafter be contributed by Parent to the Surviving Corporation. Each such SLR Warrant and the Contributed SLR Loan Receivables, as a result of the consummation of the transactions contemplated by the SLR Rollover Agreement, will be cancelled and retired, and in the case of SLR Warrants without any conversion thereof, and will cease to exist, and no payment or distribution will be made with respect thereto.

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Section 2.4. Comerica Warrants. None of Topco, Parent nor the Surviving Corporation shall assume the Comerica Warrants. Each of the Comerica Warrants that is outstanding and not exercised as of immediately prior to the Effective Time shall be terminated without payment or consideration in accordance with the terms thereof immediately prior to the Effective Time and all such Comerica Warrants shall no longer be outstanding and will automatically be cancelled and will cease to exist, and each holder thereof will cease to have any rights with respect thereto. Prior to the Effective Time and without limitation to the other provisions of this Section 2.4, the Company shall take all such actions as may be required or contemplated by the terms of the Comerica Warrants, including the giving of any written notices in connection with the Contemplated Transactions. The Company shall provide Parent with a reasonable opportunity to review and comment on any such written notice prior to the dispatch thereof, and the Company shall consider in good faith such comments.

Section 2.5. 2023 Pre-Funded Warrants. Each of the 2023 Pre-Funded Warrants that is outstanding immediately prior to the Effective Time and is not exercised prior to the Effective Time shall be treated in accordance with the terms thereof in connection with the Contemplated Transactions and from and after the Effective Time, shall be exercisable in exchange (by payment of the applicable exercise price or on a net exercise basis) for an amount of cash equal to (a) the number of shares of Company Common Stock that such 2023 Pre-Funded Warrant would have entitled the holder thereof to purchase immediately prior to the Effective Time (subject to payment of the applicable exercise price or on a net exercise basis), multiplied by (b) the Per Share Merger Consideration, without interest (the “2023 Pre-Funded Warrant Consideration”) (which amount will be payable net of any applicable withholding Tax pursuant to Section 2.10), in accordance with the terms thereof. To the extent that any of the 2023 Pre-Funded Warrants are exercised prior to the Effective Time, such 2023 Pre-Funded Warrants will be treated in accordance with the terms thereof.

Section 2.6. 2023 Warrants. Each of the 2023 Warrants that is outstanding immediately prior to the Effective Time and is not exercised prior to the Effective Time shall be treated in accordance with the terms thereof in connection with the Contemplated Transactions. Prior to the Effective Time and without limitation to the other provisions of this Section 2.6, the Company shall take all such actions as may be required or contemplated by the terms of the 2023 Warrants, including the giving of any written notices in connection with the Contemplated Transactions. The Company shall provide Parent with a reasonable opportunity to review and comment on any such written notice prior to the dispatch thereof, and the Company shall consider in good faith such comments.

Section 2.7. Dissenting Shares.

(a) Notwithstanding anything in this Agreement to the contrary, if required by the DGCL (but only to the extent required thereby), any Shares outstanding immediately prior to the Effective Time and held by a holder or “beneficial owner” (as defined, for purposes of this Section 2.7, in Section 262(a) of the DGCL) who is entitled to demand and properly exercises and perfects its respective demand for appraisal of such Shares in accordance with Section 262 of the DGCL (the “Dissenting Shares”) will not be converted into the right to receive the Per Share Merger Consideration thereof unless such holder or beneficial owner fails to perfect or effectively withdraws or otherwise forfeits or loses his, her or its right to an appraisal of such Shares. From and after the Effective Time, a holder or beneficial owner of Shares who has properly exercised appraisal rights will not have any rights of a stockholder of the Company or the Surviving Corporation with respect to such holder’s or owner’s Dissenting Shares, except those rights as are provided under Section 262 of the DGCL, and such Dissenting Shares will be cancelled and cease to exist. A holder or beneficial owner of Dissenting Shares will be entitled only to receive payment of the appraised value of such Shares in accordance with Section 262 of the DGCL, unless, after the Effective Time, such holder or beneficial owner effectively withdraws or forfeits or loses his, her or its right to an appraisal of such Shares in accordance with Section 262 of the DGCL, in which case such Shares will be treated as if they had been converted as of the Effective Time into the right to receive the Per Share Merger Consideration, without interest thereon, pursuant to Section 2.1(a).

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(b) The Company shall provide Parent with prompt written notice of any written demands for appraisal, withdrawals of such demands, and any other instruments received by the Company from holders or beneficial owners of Shares relating to rights of appraisal, and Parent will have the opportunity and right to direct the conduct of all negotiations and proceedings with respect to demands for appraisal. Except with the prior written consent of Parent, the Company shall not, and shall not agree to, make any payment with respect to any demands for appraisal, settle or offer to settle any such demands for appraisal or agree or consent to the entry of any order, stipulation, decree or judgment with respect to any such demands for appraisal.

(c) If any holder or beneficial owner of Dissenting Shares effectively withdraws or loses (through failure to perfect or otherwise) such holder’s or beneficial owner’s right to obtain payment of the fair value of such holder’s Shares under the DGCL, then, as of the occurrence of such effective withdrawal or loss, such holder’s or beneficial owner’s Shares will no longer be Dissenting Shares and, if the occurrence of such effective withdrawal or loss is later than the Effective Time, will be treated as if such holder’s or beneficial owner’s Shares, as of the Effective Time, had been converted into the right to receive the Per Share Merger Consideration, without interest thereon, as set forth in Section 2.1(a) (which amount will be payable net of any applicable withholding Tax pursuant to Section 2.10).

Section 2.8. Paying Agent Matters; Exchange Payment; Surrender of Shares.

(a) At or prior to the Effective Time, (i) Parent shall deposit or cause to be deposited with a bank or trust company mutually acceptable to the Company and Parent (the “Paying Agent”), cash in an amount sufficient to pay, without duplication, the Company Share Consideration pursuant to Section 2.1(a) and the 2023 Pre-Funded Warrant Consideration, if any, pursuant to Section 2.5, and (ii) Parent shall pay or cause to be paid to the Company, cash in an amount sufficient to pay (A) the aggregate Equity Award Consideration, the Rollover Company RSU Consideration, the Rollover Company PSU Consideration and the Rollover Company Stock Option Consideration, pursuant to Section 2.2(d) (provided that, to the extent applicable, as set forth in Section 2.2(a)(ii), Section 2.2(b)(ii) and Section 2.2(c)(ii), for administrative convenience, Parent will be deemed to have paid or caused to be paid to the Company amounts in respect of the Rollover Company RSU Consideration, the Rollover Company PSU Consideration and the Rollover Company Stock Option Consideration, but no cash will actually be delivered to the Company in respect thereof), and any payroll or employment Taxes related thereto, and (B) the Credit Agreement Closing Payments pursuant to Section 5.22. The amount of the Company Share Consideration and the 2023 Pre-Funded Warrant Consideration, if any, as so deposited with the Paying Agent will not be used for any purpose other than to fund payments pursuant to Section 2.8(b) and Section 2.8(d), except as expressly provided for in this Agreement. Any portion of the cash made available to the Paying Agent in respect of any Dissenting Shares will be returned to Parent or its designee, upon demand. Parent and the Company shall direct the Paying Agent to timely make all payments contemplated by Section 2.8(b) and Section 2.8(d). The Paying Agent Agreement shall provide for all funds received by the Paying Agent pursuant to this Section 2.8(a) to be held in an interest-bearing account, and shall not permit the Paying Agent or any other person to invest such funds. The Surviving Corporation shall promptly deposit, or cause to be deposited, additional funds with the Paying Agent in an amount which is equal to any deficiency in the amounts required to make all such payments pursuant to Section 2.8(b) and Section 2.8(d).

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(b) Promptly after the Effective Time (and in any event within three (3) Business Days thereafter), Parent and the Surviving Corporation shall cause the Paying Agent to mail to each holder of record of a certificate which immediately prior to the Effective Time represented outstanding Shares that were converted pursuant to Section 2.1(a) into the right to receive the Per Share Merger Consideration (each, a “Certificate”), (i) a letter of transmittal in customary form reasonably satisfactory to the Company and Parent, which will specify that delivery will be effected, and risk of loss and title to the Certificate will pass, only upon proper delivery of such Certificate (or effective affidavits of loss in lieu thereof and, if required by the Surviving Corporation or the Paying Agent, the posting by such holder of a bond in customary amount and upon such terms as may be reasonably required by Parent and the Surviving Corporation or the Paying Agent as indemnity against any claim that may be made against Parent or the Surviving Corporation with respect to such Certificate) to the Paying Agent, and (ii) instructions for use in effecting the surrender of the Certificate (or effective affidavits of loss in lieu thereof and any such bond), together with such letter of transmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be reasonably required pursuant to such instructions (which instructions shall be in a form reasonably satisfactory to the Company and Parent and shall include instructions for providing the Paying Agent required Tax documentation, including a properly completed and executed IRS Form W-9 or appropriate IRS Form W-8, together with all applicable attachments thereto, as applicable), in exchange for the Per Share Merger Consideration, payable in respect thereof pursuant to the provisions of this Article II, and such Certificates shall then be cancelled. Upon surrender of a Certificate (or effective affidavits of loss in lieu thereof and any such bond) for cancellation to the Paying Agent, together with such letter of transmittal, duly executed and properly completed in accordance with the instructions thereto, and such other documents as may be required pursuant to such instructions, Parent shall thereafter cause the Paying Agent to pay and deliver as promptly as practicable the Per Share Merger Consideration payable for each Share formerly represented by such Certificate pursuant to Section 2.1 (which amount will be payable net of any applicable withholding Tax pursuant to Section 2.10), and the Certificate so surrendered shall forthwith be cancelled.

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(c) If any payment pursuant to the Merger is to be made to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, it will be a condition to such payment that (i) such Certificate or Book-Entry Share so surrendered must be properly endorsed or must otherwise be in proper form and (ii) the Person presenting such Certificate or Book-Entry Share to the Paying Agent for payment must pay to the Paying Agent any Transfer Taxes or other Taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Book-Entry Share or must establish to the satisfaction of the Paying Agent that such tax has been paid or is not required to be paid. Parent shall timely pay any other Transfer Taxes incurred in connection with the Contemplated Transactions.

(d) No holder of record of a non-certificated Share represented in book-entry form, which immediately prior to the Effective Time represented an outstanding Share that was converted pursuant to Section 2.1(a) into the right to receive the Per Share Merger Consideration (each, a “Book-Entry Share”), shall be required to deliver a Certificate or an executed letter of transmittal to the Paying Agent to receive the Per Share Merger Consideration in respect of such Book-Entry Share. In lieu thereof, upon receipt by the Paying Agent, or by such other agent or agents as may be appointed by Parent, of an “agent’s message” in customary form (or such other evidence, if any, as the Paying Agent may reasonable request) the holder of such Book-Entry Share will be entitled to receive in exchange therefor the Per Share Merger Consideration (which amount will be payable net of any applicable withholding Tax pursuant to Section 2.10) for each such outstanding Share formerly represented by such Book-Entry Share, and the Book-Entry Share will be cancelled. Payment of the Per Share Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name the Book-Entry Shares are registered. Until such “agent’s message” (or such other evidence) is received as contemplated by this Section 2.8(d), each Book-Entry Share will be deemed at any time after the Effective Time to represent only the right to receive the Per Share Merger Consideration (which amount will be payable net of any applicable withholding Tax pursuant to Section 2.10) and will not evidence any interest in, or any right to exercise the rights of a stockholder or other equity holder of, the Company or the Surviving Corporation.

(e) The Paying Agent shall accept such Certificates and transferred Book-Entry Shares upon compliance with such reasonable terms and conditions as the Paying Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. No interest shall be paid or accrued for the benefit of holders of the Certificates and Book-Entry Shares on the Per Share Merger Consideration payable upon the surrender of such Certificates and Book-Entry Shares pursuant to this Section 2.8. Until so surrendered, outstanding Certificates and Book-Entry Shares (other than Certificates and Book-Entry Shares representing any Dissenting Shares or Rollover Shares) shall be deemed, from and after the Effective Time, to evidence only the right to receive the Per Share Merger Consideration to which the Shares represented thereby shall have been converted pursuant to Section 2.1(a), without interest thereon, which amount will be payable net of any applicable withholding Tax pursuant to Section 2.10, payable in respect thereof pursuant to the provisions of this Article II.

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(f) At any time following the date that is twelve (12) months after the Effective Time, Parent may require the Paying Agent to deliver to the Surviving Corporation any funds (including any interest received with respect thereto) that have been made available to or are on deposit with the Paying Agent and that have not been disbursed to holders of Certificates and Book-Entry Shares, and thereafter such holders will be entitled to look to the Surviving Corporation (subject to abandoned property, escheat or other similar laws) with respect to the Per Share Merger Consideration payable upon surrender of a Certificate or Book-Entry Share pursuant to the procedures set forth in this Article II. The Surviving Corporation shall pay all charges and expenses, including those of the Paying Agent, in connection with the exchange of Shares for the Per Share Merger Consideration. None of Parent, Merger Sub, the Surviving Corporation, the Paying Agent or their respective Affiliates shall be liable to any Person in respect of any Per Share Merger Consideration, or any cash that was held by the Paying Agent pursuant to this Section 2.8, that was delivered to a public official pursuant to any applicable abandoned property, escheat or other similar Laws. If any Certificate or Book-Entry Share has not been surrendered immediately prior to the date on which the Per Share Merger Consideration in respect of such Certificate or Book-Entry Share would otherwise escheat to or become the property of any Governmental Body, any Per Share Merger Consideration in respect of such Certificate or Book-Entry Share will, to the extent permitted by applicable Law, immediately prior to such time become the property of the Surviving Corporation, free and clear of all claims or interest of any individual, corporation, partnership, limited liability company, association, trust, unincorporated organization, other entity or group (as defined in Section 13(d)(3) of the Exchange Act) previously entitled thereto.

(g) From and after the Effective Time, the stock transfer books of the Surviving Corporation will be closed, and thereafter there shall be no further registration of transfers on the records of the Surviving Corporation of Shares that were issued and outstanding immediately prior to the Effective Time. After the Effective Time, any Certificate or Book-Entry Share presented to the Surviving Corporation for any reason will be cancelled and exchanged for the consideration provided for, and in accordance with the procedures set forth in, this Article II. If, after the Effective Time, Certificates are presented to the Surviving Corporation, Parent or the Paying Agent for transfer or any other reason, the holder of any such Certificates shall be given a copy of the letter of transmittal referred to in Section 2.8(b) and instructed to comply with the instructions in that letter of transmittal in order to receive the cash to which such holder is entitled pursuant to this Article II.

(h) In the event that any Certificate has been lost, stolen or destroyed, upon the holder’s delivery of an affidavit of loss to the Paying Agent or Parent, as applicable (and, if required by Parent or the Paying Agent, the posting by such holder of a bond in customary amount and upon such terms as may be reasonably required by Parent or the Paying Agent as indemnity against any claim that may be made against Parent or the Surviving Corporation with respect to such Certificate), Parent shall cause the Paying Agent to deliver as consideration for the lost, stolen or destroyed Certificate the Per Share Merger Consideration payable in respect of the Shares represented by such Certificate, subject to such holder’s compliance with the exchange procedures set forth in Section 2.8(b) (other than the surrender of a Certificate).

Section 2.9. Section 16 Matters. Prior to the Effective Time, the Company Board shall take all necessary and appropriate action to approve, for purposes of Section 16(b) of the Exchange Act and the related rules and regulations thereunder, the disposition by the Company directors and officers of Shares, Company Equity Awards and any other equity securities in the Contemplated Transactions.

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Section 2.10. Withholding. The parties hereto and the Paying Agent (and any other applicable withholding agent) are entitled to deduct and withhold from any amounts payable or otherwise deliverable pursuant to this Agreement such amounts as are required to be deducted and withheld therefrom on account of Taxes under U.S. federal, state or local Law or any other applicable Law; provided that, other than (i) any compensatory amounts, (ii) any applicable U.S. backup withholding or (iii) withholding under Section 1445 of the Code as a result of a failure by the Company to deliver the certificate contemplated by Section 5.19, the withholding agent intending to so deduct or withhold will use commercially reasonable efforts to provide prior notice to the Company that it intends to deduct or withhold, and will reasonably cooperate with the Company to minimize or eliminate such withholding to the extent permitted by applicable Law. Any compensatory amounts payable pursuant to or as contemplated by this Agreement, including pursuant to Section 2.2, will be remitted to the applicable payor for payment to the applicable Person through regular payroll procedures, as applicable. To the extent that any amounts are so deducted and withheld and, if applicable, paid over to the appropriate Governmental Body, such amounts will be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid. The relevant party or the Paying Agent, as applicable, shall promptly remit, or cause to be promptly remitted, any amount so withheld and deducted to the applicable Governmental Body to the extent required by applicable Law.

ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY

Except as otherwise disclosed in (a) the Company SEC Documents (excluding any disclosures in “risk factors,” “quantitative and qualitative disclosures about market risk” or otherwise relating to “forward-looking statements” and any other disclosures contained or referenced in such Company SEC Documents of information, factors or risks that are cautionary, predictive or forward-looking in nature) publicly filed with or furnished to the SEC on or after June 30, 2021 and at least one (1) Business Day prior to the date of this Agreement, other than with respect to Section 3.1, Section 3.2, Section 3.3(a), Section 3.3(b), Section 3.3(d), Section 3.23 or Section 3.25, or (b) the confidential disclosure letter delivered by the Company to Parent and Merger Sub prior to the execution and delivery of this Agreement (the “Company Disclosure Letter”) (which disclosure in the Company Disclosure Letter will be deemed to provide disclosure in response to (x) the particular Section (or, if applicable, subsection) of this Article III that corresponds to the section of the Company Disclosure Letter in which such disclosure is set forth and (y) any other Section (or if applicable, subsection) of this Article III to the extent that it is reasonably apparent on its face that such disclosure qualifies such other representation and warranty), the Company represents and warrants to Parent and Merger Sub as follows:

Section 3.1. Organization and Corporate Power.

(a) The Company is a corporation validly existing and in good standing under the Laws of the State of Delaware. Each of the Subsidiaries of the Company is a corporation or other entity validly existing and in good standing under the Laws of the jurisdiction of its incorporation or organization. Each of the Company and its Subsidiaries has all requisite corporate or similar power and authority and all Permits necessary to own, lease and operate its properties and assets, and to carry on its business as it is now being conducted, except where the failure to hold such Permits would not reasonably be expected to have a Company Material Adverse Effect. Each of the Company and its Subsidiaries is duly qualified or authorized to do business and is in good standing in every jurisdiction (to the extent such concept exists in such jurisdiction) in which its ownership of property or the conduct of business as now conducted requires it to qualify, except where the failure to be so qualified, authorized or in good standing would not reasonably be expected to have a Company Material Adverse Effect. True and complete copies of the certificate of incorporation and bylaws of the Company (the “Company Organizational Documents”), each as in effect as of the date of this Agreement, have been heretofore made available to Parent and Merger Sub. The Company Organizational Documents are in full force and effect.

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(b) The organizational documents of each Subsidiary of the Company are in full force and effect. The Company is not in violation of the Company Organizational Documents, and each Subsidiary of the Company is not in violation of its organizational documents in any material respect.

Section 3.2. Authorization; Valid and Binding Agreement. The Company has all requisite corporate power and authority to execute and deliver this Agreement and the other Transaction Documents to which the Company is a party, to perform its obligations hereunder and thereunder and, subject to receipt of the Requisite Stockholder Approval, to consummate the Merger and the other Contemplated Transactions. The Company Board (acting upon the recommendation of the Special Committee) has (a) determined that the Merger and the other Contemplated Transactions are advisable, fair to and in the best interests of the Company and the Company’s stockholders (other than Parent and its Affiliates and any Rollover Holders), (b) approved and declared advisable that the Company enter into this Agreement and the other Transaction Documents to which the Company is a party and perform its covenants and other obligations herein and therein, and consummate the Contemplated Transactions, including the Merger, upon the terms and subject to the conditions set forth herein and therein, (c) directed that the adoption of this Agreement be submitted to a vote of the Company’s stockholders at a meeting of the Company’s stockholders, (d) subject to the terms and conditions of this Agreement, recommended that the Company’s stockholders approve the adoption of this Agreement and approve the Merger on the terms and subject to the conditions set forth in this Agreement and (e) to the extent necessary, and assuming the truth and accuracy of the representations and warranties set forth in Section 4.9, adopted a resolution having the effect of causing this Agreement and the Merger not to be subject to any “fair price,” “business combination” or “control share acquisition” statute or other similar statute or regulation set forth in the DGCL or other applicable Law that might otherwise apply to the Merger, including Section 203 of the DGCL, which actions are valid and have not been rescinded, modified or withdrawn. No other corporate action pursuant to the Laws of the State of Delaware, on the part of the Company, is necessary to authorize this Agreement or the other Transaction Documents to which the Company is a party. The Company has duly executed and delivered this Agreement and each other Transaction Document to which the Company is a party and, assuming the due authorization, execution and delivery by the other respective parties thereto, each of this Agreement and the other Transaction Documents to which the Company is a party constitutes a legal, valid and binding obligation of the Company, enforceable against it in accordance with its terms except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally and by general principles of equity (the “Enforceability Exceptions”). The adoption of this Agreement by the affirmative vote (in person or by proxy) of the holders of a majority of the outstanding shares of Company Common Stock entitled to vote at the Company Stockholder Meeting (the “Requisite Stockholder Approval”) is the only vote or approval of the holders of any of the Company’s capital stock necessary under applicable Law or the Company Organizational Documents to adopt this Agreement and consummate the Merger.

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Section 3.3. Capital Stock.

(a) The authorized capital stock of the Company consists of 21,875,000 Shares and 25,000,000 shares of preferred stock, $0.001 par value per share (“Company Preferred Stock”), of which, as of June 14, 2024 (the “Measurement Date”), 6,215,192 Shares and no shares of Company Preferred Stock were issued and outstanding.

(b) Section 3.3(b) of the Company Disclosure Letter sets forth a true and complete list as of the Measurement Date of each holder of Company Equity Awards, including (i) the holder’s name or employee ID number, (ii) the type of Company Equity Awards, (iii) the number of the Shares subject thereto, (iv) the grant date, (v) the exercise price (if any), (vi) the expiration or vesting date thereof, and (vii) in the case of Company Options, whether any such Company Option is intended to qualify as an “incentive stock option” or a “nonqualified stock option,” in each case, to the extent applicable. The per share exercise price of each Company Option was equal to or greater than the fair market value (within the meaning of Section 409A of the Code) of a Share on the date of grant, and to the Company’s Knowledge, each Company Option intended to qualify as an “incentive stock option” under Section 422 of the Code so qualifies.

(c) As of the Measurement Date, other than the Company Equity Awards, there were no other equity or equity-based awards outstanding. Each Company Equity Award was granted in material compliance with all applicable Laws and all of the material terms and conditions of the Company Equity Plan under which it was granted.

(d) As of the Measurement Date, no Shares were held in treasury of the Company; 154,352 Shares were reserved for issuance in respect of future awards under the Company Equity Plans; 706,182 Shares were subject to Company RSU Awards; 39,835 Shares were subject to Company PSU Awards (assuming maximum performance levels were achieved). As of the Measurement Date, 157,829 Shares were reserved for issuance under the Company ESPP. As of the Measurement Date, there were outstanding Warrants exercisable for 3,554,848 Shares, and such number of Shares were reserved for issuance upon conversion of the Warrants.

(e) The Company’s issued and outstanding Shares have been, and all such Shares that may have been issued prior to the Effective Time will be when issued, duly authorized and validly issued, fully paid and non-assessable and free of preemptive rights. All outstanding Shares have been offered and issued in accordance in all material respects with all applicable securities Laws. With respect to each grant of Company Options, a Company RSU Award and a Company PSU Award, each such grant was made in accordance with the terms of the applicable Company Equity Plan, the Exchange Act and all other applicable Laws, in each case, in all material respects.

(f) Except (i) as provided in the Rollover Agreements, (ii) as disclosed in this Section 3.3, (iii) as set forth in Section 3.3(f) of the Company Disclosure Letter or (iv) for changes since the Measurement Date resulting from the exercise or settlement of Company Equity Awards, options under the Company ESPP, or the outstanding Warrants, in each case, outstanding as of the Measurement Date or granted prior to the Closing as permitted by this Agreement, the Company has no issued or outstanding (A) shares of capital stock or other equity interests or voting securities of the Company, (B) other than the outstanding Warrants, securities convertible or exchangeable, directly or indirectly, into capital stock or other equity interests of the Company, (C) options, warrants, purchase rights, subscription rights, preemptive rights, conversion rights, exchange rights, calls, puts, rights of first refusal or other contracts or rights that require the Company to issue, sell or otherwise cause to become outstanding or to acquire, repurchase or redeem capital stock or other equity interests of the Company, (D) stock appreciation, phantom stock, restricted shares, restricted stock units, profit participation, contingent value rights, or similar rights with respect to the Company or (E) bonds, debentures, notes or other indebtedness or securities of the Company having the right to vote on any matters on which the Company’s stockholders may vote. There are no accrued and unpaid dividends with respect to any Shares.

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(g) There are no stockholder agreements, voting trusts, proxies or other agreements or understandings to which the Company or any of its Subsidiaries is a party relating to the voting or disposition of any securities of the Company or granting to any Person or group of Persons the right to have their securities of the Company registered under the Securities Act or the right to elect, or to designate or nominate for election, a director to the Company Board or the board of directors (or similar governing body) of any Subsidiary of the Company.

Section 3.4. Subsidiaries. Section 3.4 of the Company Disclosure Letter lists each Subsidiary of the Company, and for each such Subsidiary of the Company, the state or country of formation and each jurisdiction in which such Subsidiary is qualified or licensed to do business. All of the outstanding shares of capital stock or equivalent equity interests of each of the Company’s Subsidiaries are owned of record and beneficially, directly or indirectly, by the Company free and clear of all Liens (other than Permitted Liens). Such outstanding shares of capital stock or equivalent equity interests have been duly authorized and validly issued, fully paid and non-assessable and free of preemptive rights and have been issued in compliance in all material respects with applicable Law. None of the Company’s Subsidiaries has any outstanding or authorized any options or other rights to acquire from such Subsidiary, or any obligations to issue, any capital stock, voting securities, or securities convertible into or exchangeable for capital stock or voting securities of such Subsidiary not owned by the Company. Except with respect to the Subsidiaries set forth on Section 3.4 of the Company Disclosure Letter, the Company does not own, directly or indirectly, any capital stock or other voting securities of, or ownership interests in, any Person. Neither the Company nor any Subsidiary has agreed nor is obligated to make, and is not bound by any Contract under which it may become obligated to make, any future material investment in, or material capital contribution to, any other Person.

Section 3.5. No Breach. Except as set forth in Section 3.5 of the Company Disclosure Letter, none of the execution, delivery and performance by the Company of this Agreement or any other Transaction Document to which the Company is a party, or the consummation of the Contemplated Transactions, including the Merger (a) conflict with or violate the Company Organizational Documents, (b) assuming all consents, approvals, authorizations and other actions described in Section 3.6 have been obtained, and all filings and obligations described in Section 3.6 have been made, conflict with or violate any Law, order, judgment or decree to which the Company, its Subsidiaries or any of their properties or assets is subject, or (c) conflict with or result in any breach of, constitute (with or without notice of or lapse of time or both) a default under, result in a violation of, give rise to a right of termination, cancellation or acceleration under any Company Material Contract, except in the case of each of clauses (b) and (c) above, any conflicts, breaches, defaults, violations, terminations, cancellations, accelerations or Liens that would not reasonably be expected to be material to the Company and its Subsidiaries (taken as a whole).

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Section 3.6. Consents. Except (a) as set forth in Section 3.6 of the Company Disclosure Letter, (b) for applicable requirements, if any, of the Securities Act, (c) for applicable requirements of the Exchange Act, including the filing with the SEC of the Proxy Statement and the related Transaction Statement on Schedule 13E-3 (including any amendments or supplements thereto, the “Schedule 13E-3”), (d) for any filings required by Nasdaq, the NYSE or OTC, (e) for the filing of the Certificate of Merger and (f) for any filings with the relevant authorities of states in which the Company or any of its Subsidiaries is qualified to do business, in each case, none of the Company or its Subsidiaries is required to submit any notice, report or other filing with any Governmental Body in connection with the execution, delivery or performance by it of this Agreement or the consummation of the Contemplated Transactions. Other than as set forth in Section 3.6 of the Company Disclosure Letter, no consent, approval or authorization of any Governmental Body is required to be obtained by the Company or its Subsidiaries in connection with its execution, delivery and performance of this Agreement or the other Transaction Documents or the consummation of the Contemplated Transactions, except for those consents, approvals and authorizations the failure of which to obtain would not reasonably be expected to have a Company Material Adverse Effect.

Section 3.7. SEC Reports; Disclosure Controls and Procedures.

(a) The Company has timely filed all forms, reports, schedules, statements and other documents (including exhibits and all other information incorporated therein) with the SEC required to be filed by the Company under the Exchange Act since January 1, 2022 (such forms, reports, schedules, statements or documents, the “Company SEC Documents”). No Subsidiary of the Company is required to file any form, report, schedule, statement, registration statement, proxy statement, certification or other document with, or make any other filing with or furnish any other material to, the SEC. As of their respective filing dates (or, if amended, supplemented or superseded by a filing prior to the date of this Agreement, then on the date of such amendment, supplement or superseding filing): (i) each of the Company SEC Documents complied in all material respects with the applicable requirements of the Exchange Act, and the rules and regulations of the SEC promulgated thereunder applicable to such Company SEC Documents, as in effect on the date so filed, and (ii) none of the Company SEC Documents contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Since the Company Balance Sheet Date, neither the Company nor any Company Subsidiary has received from the SEC or any Governmental Body any written comments or questions with respect to any of the Company SEC Documents (including the financial statements included therein) that are not resolved, or as of the date hereof has received any written notice from the SEC or other Governmental Body that such Company SEC Documents (including the financial statements included therein) are being reviewed or investigated, and, to the Knowledge of the Company, there is not, as of the date hereof, any investigation or review being conducted by the SEC or any other Governmental Body of any Company SEC Documents (including the financial statements included therein). No Company Subsidiary is required to file any forms, reports or other documents with the SEC.

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(b) The financial statements (including any related notes and schedules) contained or incorporated by reference in the Company SEC Documents (i) complied as to form in all material respects with the published rules and regulations of the SEC applicable thereto, (ii) were prepared in accordance with GAAP, applied on a consistent basis throughout the periods covered (except as may be expressly indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by Form 10-Q of the SEC) and (iii) fairly presented in accordance with GAAP in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries as of the respective dates thereof and the consolidated results of operations and cash flows of the Company and its consolidated Subsidiaries for the periods covered thereby (subject, in the case of unaudited statements, to the absence of footnote disclosure and to normal and recurring year-end audit adjustments not material in amount). Neither the Company nor any of its Subsidiaries is a party to or has any obligation or other commitment to become a party to any securitization transaction, off-balance sheet partnership or any similar Contract, where the result, purpose or intended effect of such Contract is to avoid disclosure of any material transaction involving, or material liabilities of, the Company or any of the Company’s Subsidiaries in the Company’s published financial statements or other Company SEC Documents.

(c) The Company has designed and maintains, and at all times since the Reference Date has maintained, a system of internal control over financial reporting (as defined in Rules 13a–15(f) and 15d–15(f) of the Exchange Act) sufficient to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements in accordance with GAAP. The Company (i) has designed and maintains disclosure controls and procedures (as defined in Rules 13a–15(e) and 15d–15(e) of the Exchange Act) to provide reasonable assurance that all material information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms and is accumulated and communicated to the Company’s management as appropriate to allow timely decisions regarding required disclosure and to enable each of the principal executive officer of the Company and the principal financial officer of the Company to make the certifications required under the Exchange Act with respect to such reports and (ii) has disclosed, based on its most recent evaluation of its disclosure controls and procedures and internal control over financial reporting, to the Company’s auditors and the audit committee of the Company Board (A) any significant deficiencies and material weaknesses in the design or operation of its internal control over financial reporting that are reasonably likely to adversely affect in any material respect the Company’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. Since the Company Balance Sheet Date, any material change in internal control over financial reporting required to be disclosed in any Company SEC Document has been so disclosed.

(d) Since the Company Balance Sheet Date, neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company, any director, officer, employee, auditor, accountant or other Representative of the Company or any of its Subsidiaries, has received a material complaint, allegation, assertion or claim regarding the accounting or auditing practices, procedures, methodologies or methods of the Company or any of its Subsidiaries or their respective internal accounting controls, including any material complaint, allegation, assertion or claim that the Company or any of its Subsidiaries has engaged in questionable accounting or auditing practices.

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(e) To the Knowledge of the Company neither the Company nor its independent auditors have identified (i) any significant deficiency or material weakness in the system of internal accounting controls utilized by the Company, (ii) any fraud, whether or not material, that involves the Company’s management or other employees who have a role in the preparation of financial statements or the internal accounting controls utilized by the Company and its Subsidiaries or (iii) any claim or allegation regarding any of the foregoing.

Section 3.8. Indebtedness; No Undisclosed Liabilities.

(a) Section 3.8(a) of the Company Disclosure Letter contains a true and complete list of all Indebtedness of the Company and its Subsidiaries that individually exceed $50,000 as of the date of this Agreement, other than Indebtedness reflected in the Company Balance Sheet or otherwise included in the Company SEC Documents.

(b) Except (i) as and to the extent disclosed or reserved against on the unaudited consolidated balance sheet of the Company as of March 31, 2024 (the “Company Balance Sheet Date”) or disclosed in the notes thereto, (ii) as incurred after the date thereof in the ordinary course of business or (iii) incurred in connection with this Agreement or the Contemplated Transactions, neither the Company nor any of its Subsidiaries, has any material liabilities or obligations of any nature, whether known or unknown, absolute, accrued, contingent or otherwise, whether due or to become due, and whether or not required by GAAP to be reflected or reserved against in the consolidated balance sheet of the Company and its Subsidiaries (or disclosed in the notes to such balance sheet). Neither the Company nor any of its Subsidiaries is a party to, or has any commitment to become a party to, any “off balance sheet arrangement” within the meaning of Item 303 of Regulation S-K promulgated under the Securities Act.

Section 3.9. Absence of Certain Developments.

(a) From the Company Balance Sheet Date to the date of this Agreement, the Company has not experienced a Company Material Adverse Effect.

(b) Except in connection with the Contemplated Transactions and the SLR Financing Agreements and the transactions contemplated thereby, and other than the negotiation, execution, delivery and performance of this Agreement, from December 31, 2023 to the date of this Agreement, the Company has carried on and operated its business in all material respects in the ordinary course of business, and neither the Company nor its Subsidiaries has taken, committed or agreed to take any actions that would have been prohibited by Section 5.1(b)(i), (iv), (vi), (vii), (viii), (x), (xi), (xii), (xiii), (xv), (xxi) or (xxiii), in each case, if such covenants had been in effect as of December 31, 2023.

Section 3.10. Compliance with Laws.

(a) The Company and its Subsidiaries are, and since the January 1, 2019 have been, in compliance, in all material respects, with all Laws applicable to them, any of their properties or other assets or any of their business or operations.

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(b) Since the January 1, 2019, (i) neither the Company nor any of its Subsidiaries has received any notice from any Governmental Body that alleges (A) any material violation or noncompliance (or reflects that the Company or any of its Subsidiaries is under investigation or the subject of an inquiry by any such Governmental Body for such alleged noncompliance) with any applicable Law or (B) any material fine, assessment or cease and desist order, or the suspension, revocation or limitation or restriction of any material Company Permit, and (ii) neither the Company nor any of its Subsidiaries has entered into or is currently subject to any material agreement, corporate integrity agreement, monitoring agreement or settlement with any Governmental Body with respect to its alleged noncompliance with, or violation of, any applicable Law.

(c) Since the January 1, 2019, the Company and each of its Subsidiaries have timely filed all material regulatory reports, schedules, statements, documents, filings, submissions, forms, registrations and other documents, together with any amendments required to be made with respect thereto, that each was required to file with any Governmental Body, including state regulatory authorities and any applicable federal regulatory authorities, and have timely paid all fees and assessments due and payable in connection therewith.

(d) The Company and each of its officers and directors are in material compliance with, and have complied in all material respects with (i) the applicable provisions of the Sarbanes-Oxley Act of 2002 and the related rules and regulations promulgated under such act (“Sarbanes-Oxley”), the Exchange Act and the Securities Act and (ii) the applicable listing and corporate governance rules and regulations of OTC.

Section 3.11. Title to Tangible Properties.

(a) The Company and its Subsidiaries have good and valid title to, or hold pursuant to good, valid and enforceable leases or other comparable contract rights, all of the Company Real Property and tangible personal property and other tangible assets necessary for the conduct of the business of the Company and its Subsidiaries, taken as a whole, as currently conducted, in each case free and clear of any Liens (other than Permitted Liens), except where the failure to do so would not reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any of its Subsidiaries owns or has ever owned any real property.

(b) The real property described in Section 3.11(b) of the Company Disclosure Letter (the “Company Real Property”) is a true and complete list in all material respects of real property to which the Company or any of its Subsidiaries holds a valid leasehold interest (collectively, the “Company Leased Property”) as of the date of this Agreement and constitutes all of the real property owned, used, occupied or leased by the Company or its Subsidiaries. There are no subleases, licenses, occupancy agreements, consents, assignments, purchase agreements or other contracts granting to any person (other than the Company or its Subsidiaries) a security interest in, or the right to use or occupy, the Company Real Property, and no other Person (other than the Company and its Subsidiaries) is in possession of the Company Real Property.

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(c) The Company Leased Property leases are in full force and effect. Except as would not reasonably be expected to have a Company Material Adverse Effect, each of the Company Leased Property leases is valid, binding and enforceable on the Company or one of its Subsidiaries that is a party to such lease and, to the Knowledge of the Company, the other parties thereto, subject to applicable bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or other similar laws affecting creditors’ rights generally, and subject to general principles of equity, and is in full force and effect, and the Company or one of its Subsidiaries has performed all material obligations required to be performed by it to date under each such lease. Neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company, any other party to the applicable the Company Leased Property leases is in default in any material respect under any of such leases, nor has the Company or any of its Subsidiaries given or received written notice of termination, cancellation, breach, or default under any such lease. No event has occurred which, if not remedied, would result in a default by the Company in any material respect under the Company Leased Property leases, and, to the Knowledge of the Company, no event has occurred which, if not remedied, would result in a default by any party other than the Company in any material respect under the Company Leased Property leases. There are no outstanding options, rights of first offer or rights of first refusal in favor of any other party to purchase or lease the Company Leased Property or any portion thereof or interest therein.

Section 3.12. Tax Matters.

(a) (i) The Company and its Subsidiaries have timely filed (taking into account any applicable extensions) all income and other material Tax Returns required to be filed by them, (ii) such Tax Returns (taking into account all amendments thereto) are true, complete and correct in all material respects and (iii) the Company and its Subsidiaries have timely paid all material Taxes due (whether or not shown as due and payable on any such Tax Return).

(b) The Company has made available to Parent true and complete copies of (i) all income and other material Tax Returns of the Company or its Subsidiaries relating to taxable periods ending on or after December 31, 2021 and (ii) any assessment, audit report, request for information, or notice of investigation relating to any material Taxes due from or with respect to the Company or its Subsidiaries.

(c) There are no material liens for Taxes upon any of the assets of the Company or any of its Subsidiaries other than liens described in clause (a) of the definition of Permitted Liens.

(d) The Company and its Subsidiaries have withheld and timely paid all material Taxes required to have been withheld and paid in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.

(e) Neither the Company nor any of its Subsidiaries has been a party to any transaction that as of the date of this Agreement is a “listed transaction” within the meaning of Treasury Regulation Section 1.6011-4 (or any comparable provision of local, state, or foreign Law).

(f) Neither the Company nor any of its Subsidiaries has been a party to any transaction governed by Section 355(a) of the Code within the past two years.

(g) No U.S. federal, state or local or non-U.S. Actions relating to material Taxes are ongoing or pending or, to the Knowledge of the Company, proposed or threatened with respect to the Company or any of its Subsidiaries. No deficiency for any material amount of Taxes which has been proposed, asserted, or assessed in writing by any taxing authority against the Company or any of its Subsidiaries remains unpaid.

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(h) There has been no waiver or extension of any applicable statute of limitations for the assessment or collection of any material Tax of the Company or any of its Subsidiaries that is currently in force (other than pursuant to an extension of time to file any Tax Return obtained in the ordinary course of business).

(i) Neither the Company nor any of its Subsidiaries (i) is a party to or bound by any Tax allocation, sharing or similar agreement (other than any commercial agreement entered into in the ordinary course of business that does not relate primarily to Taxes), (ii) has been a member of an affiliated group filing a combined, consolidated or unitary Tax Return (other than a group comprised solely of the Company and/or any of its Subsidiaries) or (iii) has a material liability for the Taxes of any Person (other than the Taxes of the Company or its Subsidiaries) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or non-U.S. Law), as a transferee or successor, by contract, or otherwise by operation of Law.

(j) Neither the Company nor any of its Subsidiaries will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) beginning after the Closing Date as a result of (A) any “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or non-U.S. Law) executed on or prior to the Closing Date, (B) any installment sale or open transaction disposition made on or prior to the Closing Date, in each case, outside of the ordinary course of business, (C) adjustment pursuant to Section 481(a) of the Code (or any corresponding or similar provision of state, local or non-U.S. Law) as a result of a change in accounting method or use of an improper accounting method for any taxable period (or portion thereof) ending on or prior to the Closing Date, (D) any prepaid amount received or deferred revenue accrued by the Company or any of its Subsidiaries on or prior to the Closing Date, in each case, outside of the ordinary course of business, or (E) intercompany transaction or excess loss account described in Treasury Regulation under Section 1502 of the Code (or any corresponding or similar provision of state, local or non-U.S. Law).

(k) During the past three years, no written claim has been made by a Governmental Body in a jurisdiction where the Company or any of its Subsidiaries does not file Tax Returns such that it is or may be subject to taxation by, or required to file any Tax Return in, that jurisdiction.

(l) Neither the Company nor any of its Subsidiaries has a permanent establishment (within the meaning of an applicable Tax treaty or otherwise under applicable Law) or otherwise has an office or a fixed place of business in a country other than a country in which it is organized.

(m) No material private letter rulings, technical advice memoranda or similar agreements or rulings related to Taxes have been entered into, issued by or requested from any Governmental Body with or in respect of the Company or any of its Subsidiaries.

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(n) The Company is not, and has not been in the period specified in Section 897(c)(1)(A)(ii) of the Code, a “United States real property holding corporation” as defined in Section 897(c)(2) of the Code.

Section 3.13. Contracts and Commitments.

(a) As of the date of this Agreement, except as set forth on Section 3.13 of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries is a party to or bound by any:

(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company or any of its Subsidiaries; provided, however, that any “material contract” that has been made publicly available pursuant to the Company SEC Documents or included on Section 3.17 of the Company Disclosure Letter will be excluded from Section 3.13 of the Company Disclosure Letter;

(ii) Contract relating to the disposition, transfer or acquisition by the Company or any of its Subsidiaries of any material tangible or intangible assets (or ownership interest in any other Person or other business enterprise) (A) after the date of this Agreement, other than the sale of inventory in the ordinary course of business, or (B) prior to the date of this Agreement, that contains any material ongoing obligations of the Company (including indemnification, “earn-out” or other contingent obligations) that are still in effect that are expected to result in claims in excess of $100,000;

(iii) Contract establishing any joint venture, partnership or collaboration, in each case, that is material to the Company and its Subsidiaries, taken as a whole;

(iv) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any material product or service exclusively from a single party, to purchase a specified minimum amount of goods or services, or sell any material product or service exclusively to a single party, (C) requiring the Company or any of its Subsidiaries to conduct any business on a “most favored nations” basis with any third party or (D) under which any Person has been granted the right to manufacture, sell, market or distribute any product of the Company or any of its Subsidiaries on an exclusive basis to any Person or group of Persons or in any geographical area;

(v) Contract in respect of Indebtedness of $500,000 or more, other than any Indebtedness owed by the Company or any Subsidiary to the Company or any other Subsidiary;

(vi) Contract (other than a Company Plan) between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;

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(vii) Contract relating to the voting or registration of any securities, or any stockholders’, investor rights, tax receivables or similar or related Contracts with respect to any securities of the Company or any of its Subsidiaries;

(viii) Contract containing a right of first refusal, right of first negotiation, right of first offer, option or other similar rights with respect to any equity interests or assets that have a fair market value or purchase price of more than $50,000 in favor of a party other than the Company or its Subsidiaries;

(ix) Contract under which the Company or any of its Subsidiaries is expected to make annual expenditures or receive annual revenues in excess of $500,000 during the current or a subsequent fiscal year;

(x) Contract relating to the settlement of any litigation proceeding that provides for any continuing material obligations on the part of the Company or any of its Subsidiaries;

(xi) Contract that prohibits, limits, restricts or requires the payment of dividends or distributions in respect of the capital stock of the Company or any of its Subsidiaries or otherwise prohibits, limits, restricts or requires the pledging of capital stock of the Company or any of its Subsidiaries or prohibits, limits, restricts or requires the issuance of guarantees by the Company or any of its Subsidiaries other than the Company Equity Plans or any Contracts evidencing awards granted under the Company Equity Plans;

(xii) Contract with third party manufacturers and suppliers for the manufacture and/or supply of materials or products in the supply chain for Company Products that involve payments in excess of $500,000 during the current or a subsequent fiscal year;

(xiii) Contract under which the Company or any of its Subsidiaries has, directly or indirectly, made any loan, extension of credit or capital contribution to, or other investment in, any Person that is not a Subsidiary of the Company (other than extensions of credit to customers in the ordinary course of business and advances to directors, officers and other employees for travel and other business-related expenses, in each case, in the ordinary course of business);

(xiv) Contract with any Affiliate, director, executive officer (as such term is defined in the Exchange Act), holder of 5% or more of Shares, or to the Knowledge of the Company, any of their Affiliates (other than the Company) or immediate family members (other than offer letters that can be terminated at will without severance obligations and Contracts pursuant to Company Equity Awards);

(xv) Labor Agreement;

(xvi) any employment or consulting Contract (in each case with respect to which the Company or any of its Subsidiaries has continuing obligations as of the date hereof) with any current or former (A) officer of the Company, (B) member of the Company Board, or (C) employee, individual independent contractor, or individual consultant of the Company providing for an annual base salary or payment in excess of $250,000;

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(xvii) IP Contracts; or

(xviii) Contract to enter into any of the foregoing.

Each such Contract described in clauses (i) through (xviii) above of this Section 3.13(a) or excluded therefrom due to the exception of being filed as an exhibit to the Company SEC Documents, together with each Company Real Property lease listed in Section 3.11(b) of the Company Disclosure Letter, or would otherwise have been required to be set forth on Section 3.13(a) of the Company Disclosure Letter if such Contract had been entered into on or prior to the date hereof other than any Company Plan, is referred to herein as a “Company Material Contract.”

(b) The Company has made available to Parent a true and correct copy of all written Company Material Contracts, together with all material amendments thereto, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.

(c) (i) Except as would not reasonably be expected to be material to the Company and its Subsidiaries (taken as a whole), neither the Company nor any of its Subsidiaries (A) is, or has sent or received written notice that any other party to any Company Material Contract is, in violation or breach of or default (with or without notice or lapse of time or both) under or (B) has waived or failed to enforce any rights or benefits under any Company Material Contract to which it is a party or any of its properties or other assets is subject, (ii) there has occurred no event giving to others any right of termination, amendment or cancellation of (with or without notice or lapse of time or both) any such Company Material Contract and (iii) each such Company Material Contract is in full force and effect and is a legal, valid and binding agreement of, and enforceable against, the Company or any of its Subsidiaries, and, to the Knowledge of the Company, each other party thereto. No party to any Company Material Contract has given any written notice of termination, cancellation or breach of, or dispute with respect to, any Company Material Contract or that it intends to seek to terminate, modify, renegotiate or cancel any Company Material Contract (whether as a result of the Contemplated Transactions or otherwise).

Section 3.14. Intellectual Property.

(a) Section 3.14(a) of the Company Disclosure Letter sets forth, as of the date of this Agreement, a true and correct list of all Patents, Trademarks and Copyrights, in each instance, that are owned by the Company or any of its Subsidiaries and that have been registered with a Governmental Body, or with respect to which the Company or any of its Subsidiaries has filed an application for registration, except for any such Patents, Trademarks or Copyrights that have been abandoned by the Company or any of its Subsidiaries in the normal course of business (collectively, “Company Registered Intellectual Property”). Section 3.14(a) of the Company Disclosure Letter also sets forth, as of the date of this Agreement, a list of all internet domain names with respect to which the Company or any of its Subsidiaries are the registrant. All filings, payments, and other actions required to be made or taken to maintain each item of Company Registered Intellectual Property have been made or taken. To the Knowledge of the Company, all Company Registered Intellectual Property is valid, subsisting and enforceable.

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(b) Except for any joint ownership described in Section 3.14(b) of the Company Disclosure Letter, the Company or its applicable Subsidiary exclusively owns all rights, title and interests in and to all Owned Intellectual Property, including at the U.S. Patent and Trademark Office in the Company Registered Intellectual Property, free and clear of all Liens (except for Permitted Liens and non-exclusive licenses to Intellectual Property granted under the IP Contracts). The Company and its Subsidiaries possess legally sufficient and enforceable rights to use all other material Intellectual Property necessary for or used in connection with the conduct of the Company’s and its Subsidiaries’ businesses; provided, however, that the foregoing will not be interpreted as a representation of non-infringement of third-party Intellectual Property, which is dealt with exclusively in Section 3.14(c) below.

(c) To the Knowledge of the Company, since the Reference Date, neither the conduct of the Company’s business nor the conduct of any of its Subsidiaries’ businesses has misappropriated, infringed or otherwise violated the Intellectual Property of any Person. Since the Reference Date, neither the Company nor any of its Subsidiaries has received any written notice from any Person claiming any violation, misappropriation or infringement of the Intellectual Property of such Person.

(d) Since the Reference Date, (i) to the Knowledge of the Company, no Person has misappropriated, infringed or violated any Owned Intellectual Property or Exclusive Intellectual Property and (ii) no written claims are pending or, to the Knowledge of the Company, threatened, against any of its Subsidiaries (A) regarding the Company’s or its Subsidiaries’ use or ownership of any Owned Intellectual Property or use of any Exclusive Intellectual Property or (B) challenging or questioning the validity or enforceability of any Owned Intellectual Property or Exclusive Intellectual Property, in each case of (i) and (ii), except as would not reasonably be expected to have a Company Material Adverse Effect.

(e) Section 3.14(e) of the Company Disclosure Letter sets forth, as of the date of this Agreement, a complete and correct list of all IP Contracts to which the Company or any of its Subsidiaries is a party. To the Knowledge of the Company, neither the Company nor its Subsidiaries, nor any party thereto, are in default of any IP Contracts in any material respect. Except as set forth on Section 3.14(e) of the Company Disclosure Letter, the consummation of the Contemplated Transactions will not by itself afford any other party to IP Contracts the right to terminate any such IP Contracts.

(f) The Company and its Subsidiaries have taken commercially reasonable steps to prevent the unauthorized disclosure and use of its and their Trade Secrets, and since the Reference Date, to the Knowledge of the Company, neither the Company nor any of its Subsidiaries has experienced any material unauthorized disclosure of such Trade Secrets.

(g) Each Person who has contributed to the invention, conception, or development of any Intellectual Property for or on behalf of the Company or any of its Subsidiaries (each, a “Contributor”) has entered into a valid and enforceable written agreement that assigns (by way of a present tense assignment) to the Company exclusive ownership of all rights, title, and interest in and to all such Intellectual Property and obligates such Person to maintain and protect the secrecy of the Company’s confidential information.

Section 3.15. Litigation. Except as would not reasonably be expected to be material to the Company and its Subsidiaries (taken as a whole), there are no Actions pending and, to the Knowledge of the Company, no Actions threatened against the Company or any of its Subsidiaries, at law or in equity, or before or by any Governmental Body. Neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company, any present officer or director of the Company or any of its Subsidiaries, is subject to or in violation of any outstanding material judgment, injunction, rule, order or decree of any court or Governmental Body.

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Section 3.16. Insurance. Section 3.16 of the Company Disclosure Letter sets forth each insurance policy (including policies providing casualty, liability, medical and workers compensation coverage, but excluding policies relating to Company Plans) to which the Company or its Subsidiaries is a party as of the date of this Agreement. Each insurance policy under which the Company or its Subsidiaries is an insured or otherwise the principal beneficiary of coverage is in full force and effect, and (i) neither the Company nor any of its Subsidiaries is in breach or default under any such insurance policy, (ii) no notice of cancellation, termination, non-renewal or reduction in coverage has been received with respect to any such insurance policy and (iii) no event has occurred which, with notice or lapse of time, would constitute such breach or default, or permit termination, or modification, under any such insurance policy, except as would not reasonably be expected to have a Company Material Adverse Effect. The Company has delivered or made available to Parent an accurate and complete copy of all insurance policies set forth in Section 3.16 of the Company Disclosure Letter.

Section 3.17. Employee Benefit Plans.

(a) Section 3.17(a) of the Company Disclosure Letter lists each material Company Plan.

(b) With respect to each material Company Plan that is not filed (or a representative form is not filed) as an exhibit to a Company SEC Document, other than any Company Plan that the Company or any of its Subsidiaries is prohibited from making available to Parent as the result of applicable Law relating to the safeguarding of data privacy, as applicable, the Company has made available to Parent and Merger Sub true and correct copies of the following (as applicable) prior to the date of this Agreement: (i) the plan document, including all amendments thereto or, with respect to any unwritten plan, a summary of all material terms thereof, (ii) the most recent summary plan description along with all summaries of material modifications thereto, (iii) all related trust instruments or other material funding-related documents, (iv) the most recent IRS determination, advisory or opinion letter, if any, from the IRS for any Company Plan that is intended to qualify pursuant to Section 401(a) of the Code, (v) the most recent annual actuarial valuation, and the most recent financial statements and actuarial or other valuation reports prepared with respect thereto, and (vi) any material non-routine correspondence with any Governmental Body in the past three (3) years.

(c) Each Company Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or is entitled to rely on a favorable advisory or opinion letter from the IRS and, to the Knowledge of the Company, nothing has occurred that would reasonably be expected to adversely affect the qualification of such Company Plan. Each Company Plan has been funded, administered and maintained in all material respects in accordance with its terms and the requirements of the applicable provisions of the Code, the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), and other applicable Law.

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(d) With respect to each Company Plan, (i) except as would not reasonably be expected to be material to the Company and its Subsidiaries (taken as a whole), there are no Actions or claims pending or, to the Knowledge of the Company, threatened, other than routine claims for benefits, and (ii) to the Knowledge of the Company, there have been no non-exempt “prohibited transactions” (as defined in Section 4975 of the Code or Section 406 of ERISA) or any breaches of fiduciary duty.

(e) None of the Company, any of its Subsidiaries or any of their respective ERISA Affiliates has at any time within the six (6) year period prior to the date of this Agreement sponsored, maintained or contributed to, or had any Liability in respect of: (i) a “defined benefit plan” (as defined in Section 3(35) of ERISA), or any other plan that is or was at any relevant time subject to Title IV of ERISA or Section 412 of the Code, (ii) a “multiemployer plan” within the meaning of Section 3(37) of ERISA, or (iii) a multiple employer plan within the meaning of Section 4063 or Section 4064 of ERISA or Section 413 of the Code.

(f) Except as would not reasonably be expected to be material to the Company and except as provided for under agreements listed on Section 3.17(a) of the Company Disclosure Letter, none of the Company or any of its Subsidiaries has any obligation to provide and, none of the Company Plans obligate the Company or any of its Subsidiaries to provide a current or former officer, director, employee or individual independent contractor (or any spouse or dependent thereof) any life insurance or medical or health benefits after his or her termination of employment or service with the Company or any of its Subsidiaries, other than as required under Part 6 of Subtitle B of Title I of ERISA, Section 4980B of the Code or any other applicable Law or under a severance arrangement providing for such benefits for no longer than eighteen (18) months following termination of employment or service.

(g) Except as required by applicable Law, set forth in Section 3.17(g) of the Company Disclosure Letter or otherwise contemplated by this Agreement, neither the execution or delivery of this Agreement, nor the consummation of the Contemplated Transactions, will, either individually or together with the occurrence of another event (including a termination of employment or service), (i) result in any material compensatory payment or benefit becoming due to any current or former officer, director, employee or other individual service provider of the Company or any of its Subsidiaries under any Company Plan, (ii) materially increase any benefits or compensation payable to any current or former officer, director, employee or other individual service provider of the Company or any of its Subsidiaries under any Company Plan, including any severance, retention, change in control, termination or similar compensation or benefits, (iii) result in the acceleration of the time of any payment or vesting of any material payments or benefits to any current or former officer, director, employee or other individual service provider of the Company or any of its Subsidiaries under any Company Plan, (iv) require the Company or any of its Subsidiaries to set aside any assets to fund any payment or benefits to any current or former officer, director, employee or other individual service provider of the Company or any of its Subsidiaries under any Company Plan or otherwise, (v) result in any forgiveness of indebtedness of any current or former officer, director, employee or other individual service provider of the Company or any of its subsidiaries or (vi) result in the payment or retention of any material compensation, benefit or other amount that, individually or in the aggregate, would reasonably be expected to constitute an “excess parachute payment” within the meaning of Section 280G of the Code or in the imposition of an excise Tax under Section 4999 of the Code.

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(h) To the Knowledge of the Company, each Company Plan that constitutes a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code is and has been maintained and operated in documentary and operational compliance in all material respects with Section 409A of the Code or an available exemption therefrom.

(i) Neither the Company nor any of its Subsidiaries has any obligation to gross-up, indemnify, reimburse or otherwise make whole any current or former officer, director, employee or other individual service provider of the Company or any of its Subsidiaries for any Taxes under Section 4999 or Section 409A of the Code.

(j) Except as would not reasonably be expected to have a Company Material Adverse Effect, without limiting the generality of Section 3.17(a) through (i) above, with respect to each Company Plan that is subject to the laws of a jurisdiction other than the United States (a “Non-U.S. Plan”): (i) all Non-U.S. Plans that are required by applicable Law or the terms of the applicable Non-U.S. Plan to be funded are funded as so required, and to the extent required by applicable Law or the terms of such Non-U.S. Plan, adequate reserves have been established with respect to any Non-U.S. Plan that is not required to be funded, (ii) each Non-U.S. Plan required to be registered has been registered and has been maintained in good standing in all material respects with applicable regulatory authorities and (iii) other than a plan or arrangement that is required by applicable Law, no Non-U.S. Plan is a defined benefit plan (as defined in ERISA, whether or not subject to ERISA).

Section 3.18. Environmental Compliance and Conditions.

(a) Except for matters that would not reasonably be expected to have a Company Material Adverse Effect:

(i) The Company and its Subsidiaries are, and since the Reference Date have been, in compliance with all applicable Environmental Laws;

(ii) The Company and each of its Subsidiaries has since the Reference Date held and currently holds, and has since the Reference Date been, and currently is, in compliance with, all Permits required under Environmental Laws to operate their business and occupy their facilities, including the Company Real Property;

(iii) Except for matters that are resolved, neither the Company nor any of its Subsidiaries has received any written claim, notice or complaint, or been subject to any Action from any Governmental Body or third party, regarding any actual or alleged violation of, or Liabilities under, Environmental Laws;

(iv) Neither the Company nor any of its Subsidiaries, nor, to the Knowledge of the Company, any third party whose Liabilities have been assumed or undertaken by the Company or its Subsidiaries, has treated, stored, disposed of, arranged for or permitted the disposal of, transported, distributed, exposed any person to, manufactured, sold, handled or released, or owned or operated any real property that is or has been contaminated by, any Hazardous Substance, in a manner that has given or would reasonably be expected to give rise to a material Liability for the Company or any of its Subsidiaries under any Environmental Laws; and

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(v) Since the Reference Date and except in compliance with Environmental Laws, neither the Company, nor any Subsidiary, has designed, manufactured, installed, repaired or distributed products or other items containing asbestos.

(b) The Company has made available to Parent and Merger Sub copies of all material environmental, health or safety studies, reports or assessments, prepared since the Reference Date, related to the compliance of the Company or any of its Subsidiaries with Environmental Laws or of the environmental condition of the Company Real Property, in each case, in its possession or under its reasonable control.

Section 3.19. Employment and Labor Matters.

(a) Except as set forth on Section 3.19(a) of the Company Disclosure Letter or as is required by applicable Law, neither the Company nor any of its Subsidiaries is a party to or bound by or negotiating any collective bargaining agreement or other written Contract with a Union (each, a “Labor Agreement”). Except as set forth on Section 3.19(a) of the Company Disclosure Letter or as is required by applicable Law, no employee of the Company or any of its Subsidiaries is represented by a Union with respect to his or her work with the Company or any of its Subsidiaries and, to the Knowledge of the Company there is and has been no organizing activity, election petition, union card signing or other union activity, or union corporate campaigns of or by any Union directed at the Company or any of its Subsidiaries or any employees of the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries has experienced any picketing, strike, slowdown, work stoppage, lockout, or other similar labor disruption, or material grievance or claim of unfair labor practices since the Reference Date, and, to the Knowledge of the Company, no picketing, strike, slowdown, work stoppage, lockout, or other similar labor disruption, or material grievance or claim of unfair labor practices has been threatened since the Reference Date. Except as would not reasonably be expected to be material to the Company and its Subsidiaries (taken as a whole), the Company and its Subsidiaries have satisfied (or will satisfy prior to the Effective Time) any requirements to obtain the consent of, or provide notice to, or to enter into any consultation with, any Union in connection with the Contemplated Transactions.

(b) Except to the extent such noncompliance would not reasonably be expected to have a Company Material Adverse Effect, the Company and its Subsidiaries are, and since the Reference Date have been, in compliance with all Laws relating to labor and employment and employment practices, including all such Laws relating to wages (including minimum wage and overtime wages), discrimination, harassment, retaliation, pay equity, workers’ compensation, safety and health, immigration, work authorization, worker classification (including employee-independent contractor classification and the proper classification of employees as exempt employees and non-exempt employees), the Worker Adjustment and Retraining Notification Act and any similar foreign, state, provincial or local “mass layoff” or “plant closing” Law (“WARN”). Except as would not reasonably be expected to be material to the Company and its Subsidiaries (taken as a whole), there are no Actions pending and, to the Knowledge of the Company, no Actions threatened against the Company or any of its Subsidiaries, at law or in equity, or before or by any Governmental Body, in connection with the employment or engagement or termination of any current or former applicant, employee, consultant, or independent contractor of the Company, including charges of unlawful discrimination, retaliation or harassment, failure to provide reasonable accommodation, denial of a leave of absence, failure to provide compensation or benefits, unfair labor practices, or other alleged violations of Law.

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(c) There has been no “mass layoff” or “plant closing” (as defined by WARN) with respect to the Company or any of its Subsidiaries since the Reference Date.

(d) In the past three (3) years, (i) to the Knowledge of the Company, no allegations of sexual harassment, sexual misconduct, or unlawful discrimination or retaliation, have been made involving any current or former director, officer or supervisory level employee of the Company, and (ii) neither the Company nor any of its Subsidiaries has entered into any settlement agreements related to allegations of sexual harassment, sexual misconduct, or unlawful discrimination or retaliation by any current or former director, officer or supervisory employee of the Company.

Section 3.20. Company Products. Except as would not reasonably be expected to be material to the Company and its Subsidiaries (taken as a whole), since the Reference Date, (a) each product developed, manufactured, marketed, sold, leased or distributed by the Company or its Subsidiaries (each, a “Company Product”) has been free of defects, errors, bugs and deficiencies and in conformity with all applicable contractual specifications, applicable statutory requirements and all express and implied warranties made by the Company or any of its Subsidiaries, (b) neither the Company nor its Subsidiaries has any liability for replacement or repair of any Company Product or other damages in connection therewith, (c) there has not been any recall or post-sale warning concerning any Company Product and (d) neither the Company nor any of its Subsidiaries has received any written, or, to the Knowledge of the Company, oral notice of any product liability Action by or before any Governmental Body relating to any Company Product. As of the date of this Agreement, there is not any pending, or, to the Knowledge of the Company, threatened, Actions relating to any alleged hazard or alleged defect in design, manufacture, materials or workmanship relating to any Company Product, or otherwise alleging failure of a Company Product to meet in any material respects applicable specifications, warranties or contractual commitments.

Section 3.21. Information Technology; Privacy and Data Security.

(a) Since the Reference Date, the Company and its Subsidiaries have complied in all materials respects with all applicable Privacy Laws. Since the Reference Date, the Company and its Subsidiaries have in place all required, and have complied in all material respects with (i) each of their respective, written and published policies and procedures concerning the privacy and security of Personal Information (the “Privacy Policies”) and (ii) contractual obligations of the Company and its Subsidiaries relating to privacy and data security. As of the date of this Agreement, no claims have been asserted or, to the Knowledge of the Company, threatened against the Company or its Subsidiaries by any Person alleging a violation of Privacy Laws and/or Privacy Policies.

(b) Except as would not reasonably be expected to be material to the Company and its Subsidiaries (taken as a whole), the Company and its Subsidiaries have maintained commercially reasonable technical, physical, and administrative measures to protect Personal Information and other confidential information stored or processed by or on behalf of the Company or its Subsidiaries and all Company Systems. To the Knowledge of the Company, there have been no material Data Security Breaches.

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Section 3.22. Anti-Corruption Laws; Anti-Money Laundering Laws; Global Trade Laws.

(a) None of the Company, any of its Subsidiaries or any of their respective directors, officers or employees, or, to the Knowledge of the Company, any of its agents is or has been (i) located, organized, or resident in a Sanctioned Country or (ii) a Sanctioned Person. None of the Company, any of its Subsidiaries or any of their respective directors, officers or employees or, to the Knowledge of the Company, any of its agents or distributors or any other Person acting on behalf of the Company or any of its Subsidiaries has at any time, in any material respect, violated or is in violation of any applicable Anti-Corruption Laws, Anti-Money Laundering Laws or Global Trade Law. Without limiting the generality of the foregoing, none of the Company, any of its Subsidiaries or any of their respective directors, officers or employees, or, to the Knowledge of the Company, any of its agents or distributors or any other Person acting on behalf of the Company or any of its Subsidiaries has at any time, in any material respect (A) made, offered to make, promised to make, or authorized the payment or giving of, directly or indirectly, any bribe, rebate, payoff, influence payment, kickback or other unlawful payment or gift of money or anything of value prohibited under any applicable Anti-Corruption Law; or (B) engaged in any business or dealings with a Sanctioned Country or Sanctioned Person.

(b) Except with respect to the filings described in Section 3.6, none of the Company, any of its Subsidiaries or any of their respective directors, officers or employees, or, to the Knowledge of the Company, any of its agents or distributors or any Person acting on behalf of the Company or its Subsidiaries has at any time (i) made a voluntary, directed or involuntary disclosure to any Governmental Body with respect to any alleged act or omission arising under or relating to noncompliance with any Anti-Corruption Law, Anti-Money Laundering Law or Global Trade Laws or (ii) received written notice that it is subject to any investigation by any Governmental Body for violations of Anti-Corruption Laws, Anti-Money Laundering Laws or Global Trade Laws or received any notice, request or citation from any Governmental Body for any noncompliance with any Anti-Corruption Law, Anti-Money Laundering Law or Global Trade Laws.

(c) Neither the Company nor any of its Subsidiaries is a “TID U.S. business” within the meaning of the Defense Production Act of 1950, as amended, including all implementing regulations thereof, and has no present intention of engaging in any activities in the future that would cause the Company or any of its Subsidiaries to become a TID U.S. business.

Section 3.23. Brokerage. No Person is entitled to any financial advisory fee or similar fee or commission in connection with the Contemplated Transactions based on any arrangement or agreement made by or on behalf of the Company.

Section 3.24. Information Supplied. The information supplied or to be supplied by the Company for inclusion or incorporation by reference in the Proxy Statement and the Schedule 13E-3 will not, at the time the Proxy Statement or Schedule 13E-3, as applicable, is first disseminated to the Company’s stockholders or at the time of the Company Stockholder Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by the Company with respect to statements made therein based on information supplied by or on behalf of Parent, Merger Sub, SLR, the Rollover Holders and each of their respective Affiliates for inclusion or incorporation by reference therein.

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Section 3.25. Anti-Takeover Laws; No Rights Agreement. Assuming the truth and accuracy of the representations and warranties set forth in Section 4.9, neither the restrictions on business combinations set forth in Section 203 of the DGCL, nor any other similar applicable “anti-takeover” Law, are or will be applicable to this Agreement or the transactions contemplated hereby. There is no stockholder rights plan, “poison pill” or similar anti-takeover agreement or plan that is as of the date hereof, or at the Effective Time shall be, applicable to the Company, the Shares or the Contemplated Transactions.

Section 3.26. Opinion. The Special Committee has received a written opinion from Scalar, LLC that, based upon and subject to the various assumptions, qualifications and limitations set forth therein, as of the date of such opinion, the Per Share Merger Consideration to be received by the holders of the Company Common Stock (other than the Company, Parent, SLR, Parent Sponsor, the Rollover Holders and their respective Affiliates) pursuant to this Agreement is fair, from a financial point of view, to such holders. As of the date of this Agreement, such opinion has not been withdrawn, revoked or modified.

Section 3.27. Government Contracts.

(a) Except as set forth on Section 3.27(a) of the Company Disclosure Letter, with respect to each Government Contract and Government Bid, the Company and its Subsidiaries have complied in all material respects with all terms and conditions thereof, and all Laws, certifications, representations, clauses, provisions and requirements pertaining thereto. Neither the Company nor any of its Subsidiaries has (i) received any notice that the Company or any of its Subsidiaries has materially breached or violated any such terms and conditions, Laws, certifications, representations, clauses or provisions, (ii) been subject to any termination, material cost disallowance, withhold, offset, overpayment or credit requested by or on behalf of a Governmental Body, (iii) represented to a Governmental Body qualification as a small business concern, a small disadvantaged business, a service-disabled, veteran-owned small business concern, a veteran-owned small business concern, a woman-owned business concern, a “protégé” under a mentor-protégé agreement or program, or qualification under any other preferential status program, or (iv) had access to classified information, or submitted documents to a Governmental Body for the purpose of being granted a facility security clearance.

(b) Except as set forth on Section 3.27(b) of the Company Disclosure Letter, to the Knowledge of the Company, (i) all representations, certifications and statements executed, acknowledged or submitted by or on behalf of the Company or any of its Subsidiaries, to a Governmental Body or to any other Person in connection with any Government Contract or Government Bid were current, accurate and complete in all material respects as of their submission date, and (ii) the Company and each of its Subsidiaries has complied in all material respects with, and provided any reasonably required updates to, all such representations, certifications and statements.

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(c) All invoices and claims for payment, reimbursement or adjustment submitted to a Governmental Body by the Company or any of its Subsidiaries, were current, accurate and complete in all material respects as of their submission dates.

(d) None of the Company, its Subsidiaries, or to the Knowledge of the Company, any of their respective officers, directors, senior management or employees, have been debarred, suspended or excluded from participation in the award or performance of any Government Contract for any reason. No debarment, suspension or exclusion investigation has been formally initiated or, to the Knowledge of the Company, threatened against the Company, its Subsidiaries, nor to the Knowledge of the Company, any of their respective officers, directors, senior management or employees. To the Knowledge of the Company, there are no facts or circumstances that would be reasonably expected to warrant the institution of debarment, suspension, or exclusion proceedings against the Company, its Subsidiaries, or any of their respective officers, directors, senior management, or employees.

(e) None of the Company, its Subsidiaries, or any of their respective officers, directors, senior management, or employees is, or within the last six (6) years has been, under or subject to any material administrative, civil or criminal investigation, indictment, information lawsuit, subpoena, document request, administrative proceeding or audit (other than audits in the ordinary course of business), involving or related to the Company or any of its Subsidiaries with respect to an actual, alleged or potential violation of any material requirement, regulation or Law pertaining to any Government Contract or Government Bid.

(f) Except as set forth on Section 3.27(f) of the Company Disclosure Letter, within the last six (6) years, other than in the ordinary course of business, neither the Company nor any of its Subsidiaries has conducted or initiated any internal investigation, made a voluntary disclosure, or been obligated to make a mandatory disclosure, to any Governmental Body with respect to any actual, alleged or potential irregularity, misstatement or omission arising under or relating to a Government Contract or Government Bid.

(g) To the Knowledge of the Company, in the last six (6) years, there have been no outstanding or unsettled investigations or allegations of fraud, false claims or overpayments under the United States civil or criminal False Claims Acts or other laws adopted by a Governmental Body, and there are no facts or circumstances that would reasonably be expected to warrant such investigations or allegations by any Governmental Body, in each case, with regard to any Government Contract or Government Bid.

(h) The Company and each of its Subsidiaries have complied in all material respects with (i) the applicable data security, cybersecurity, and physical security systems and procedures required by its Government Contracts, including where applicable those related to the handling of “Covered Defense Information” as required in DFARS 252.204-7012, and any known unauthorized disclosure has been reported to the necessary Governmental Body or higher tier contractor, as required and (ii) FAR 52.204-25 and all other applicable Governmental Body regulations and contract terms related to implementing § 889 of the National Defense Authorization Act for Fiscal Year 2019.

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Section 3.28. Health Care Regulatory Approvals.

(a) The Company and its Subsidiaries possess, and are operating in material compliance with, all required permits, licenses, registrations, certificates, authorizations, orders, exemptions, clearances, declarations of conformity, and approvals from the appropriate Governmental Body including federal, state or non-U.S. regulatory authorities or other bodies (each a “Regulatory Authority” and collectively, the “Regulatory Authorities”) material to the conduct of their businesses as now conducted (“Regulatory Permits”), and all such Regulatory Permits are in full force and effect. Since the Reference Date, neither the Company nor any of its Subsidiaries has received any written notice of proceedings relating to the suspension, material modification, revocation, termination or cancellation of any such Regulatory Permit.

(b) All applications, notifications, submissions, information, claims, reports and statistics, and other data and conclusions derived therefrom (collectively, the “Submissions”), utilized as the basis for or submitted in connection with any and all requests for a Regulatory Permit from any Regulatory Authority relating to the Company, its Subsidiaries, their businesses and the Company products, when submitted to the applicable Regulatory Authority were, to the Knowledge of the Company, true, complete and correct in all material respects as of the date of submission and any necessary or required updates, changes, corrections or modification to such Submissions have, to the Knowledge of the Company, been submitted to such Regulatory Authority.

(c) None of the Company, its Subsidiaries or, to the Knowledge of the Company, any of their respective officers, directors, employees or consultants, representatives or agents has been convicted of any crime or engaged in any conduct that has previously caused or would reasonably be expected to result in (i) debarment by the U.S. Food and Drug Administration (the “FDA”) under 21 U.S.C. Sections 335a, or disqualification under any similar law, rule or regulation of any other Governmental Bodies, (ii) debarment, suspension, or exclusion under any federal healthcare programs or any comparable foreign healthcare program, by the General Services Administration, or (iii) exclusion under 42 U.S.C. Section 1320a-7 or any similar law, rule or regulation of any Governmental Bodies.

(d) None of the Company, its Subsidiaries or, to the Knowledge of the Company, any of their respective officers, directors, employees, contractors or agents is the subject of any pending or threatened investigation by FDA pursuant to its “Fraud, Untrue Statements of Material Facts, Bribery, and Illegal Gratuities” policy as stated at 56 Fed. Reg. 46191 (September 10, 1991) (the “FDA Application Integrity Policy”) and any amendments thereto, or by any other similar Governmental Body pursuant to any similar policy.

(e) None of the Company, its Subsidiaries or, to the Knowledge of the Company, any of their respective officers, directors, employees, contractors or agents has made any materially false statements on, or material omissions from, any notifications, applications, approvals, reports and other submissions to FDA or any similar Governmental Body that would reasonably be expected to provide a basis for FDA to invoke the FDA Application Integrity Policy or for any similar Governmental Body to invoke a similar policy.

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Section 3.29. Health Care Regulation.

(a) The Company and its Subsidiaries are and, since the Reference Date, have been in material compliance with all applicable Laws administered or issued by the Regulatory Authorities regarding developing, testing, manufacturing, complaint handling, adverse event or medical device reporting, sales, marketing, labeling, advertising, distributing or promoting the products of the Company and its Subsidiaries, including all applicable Healthcare Laws. Since the Reference Date, neither the Company nor any of its Subsidiaries has received any Form FDA-483, notice of adverse finding, FDA warning letters, notice of violation or “untitled letters,” or notice of FDA action for import detentions or refusals to allow entry into the United States from the FDA or a comparable notice from a Regulatory Authority. Neither the Company nor any of its Subsidiaries is subject to any obligation arising under an FDA inspection, FDA warning letter, FDA notice of violation letter or other enforcement notice, response or commitment made to or with the FDA or a comparable Regulatory Authority. Notwithstanding the generality of the foregoing, all of the billing, and reimbursement practices of, and claims submitted by, either directly or indirectly, the Company or any of its Subsidiaries have been in material compliance with all applicable Health Care Laws and all written reimbursement policies of all applicable customers of the Company, its Subsidiaries and third party payor programs, including the HIPAA transaction and code set standards. Neither the Company nor any of its Subsidiaries is currently subject to any claims audit, investigation or billing dispute with any third party payor.

(b) Since the Reference Date, the studies, tests, preclinical development and clinical trials or investigations (“Studies”) if any, conducted by, or, to the Knowledge of the Company, for, or on behalf of the Company were and, if still pending, are, to the Knowledge of the Company, being conducted in all material respects in accordance with experimental protocols, procedures and controls pursuant to accepted professional and scientific standards for products or product candidates comparable to those being developed by the Company and all applicable Laws, including the Federal Food, Drug, and Cosmetic Act and its applicable implementing regulations at 21 C.F.R. parts 50, 54, 56, 58, and 812 and comparable foreign Laws. Since the Reference Date, no Study conducted by, for, or on behalf of the Company has been terminated or subject to any stock recovery prior to completion for safety or non-compliance reasons. The descriptions of, protocols for, and data and other results of, the Studies conducted by, for, or on behalf of the Company that have been furnished or made available to Parent are accurate and complete in all material respects. Since the Reference Date, the Company has not received any written notices or correspondence from the FDA or any comparable Regulatory Authority or any institutional review board or committee commencing, or, to the Knowledge of the Company, threatening to initiate, any action to place a clinical hold order on, or otherwise terminate, delay, suspend or materially modify any Study conducted or proposed to be conducted by, for, or on behalf of the Company.

(c) Section 3.29(c) of the Company Disclosure Letter sets forth a list of (i) all recalls, field notifications, field corrections, market withdrawals or replacements, safety alerts or other notice of action relating to an alleged lack of safety, efficacy, or regulatory compliance of the Company products (“Safety Notices”) since the Reference Date; (ii) the dates such Safety Notices, if any, were resolved or closed; and (iii) to the Knowledge of the Company, any material complaints with respect to the Company products that are currently unresolved. There are no Safety Notices, or, to the Knowledge of the Company, material product complaints with respect to the Company products and, to the Knowledge of the Company, there are no facts that would be reasonably likely to result in (i) a material Safety Notice with respect to the Company products, (ii) a material change in labeling of any the Company products; or (iii) a termination or suspension of marketing or testing of any the Company products.

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(d) Since the Reference Date, neither the Company nor any of its Subsidiaries: (i) has received any written notice from any Governmental Body, court or arbitrator alleging or asserting any material non-compliance with any applicable Healthcare Laws; (ii) is nor has been subject to any Action alleging that any operation or activity of Company or any of its Subsidiaries is in violation of any applicable Healthcare Laws, in any material respect, nor, to the Knowledge of Company, is any Action threatened; and (iii) is a party to any corporate integrity agreements, non- or deferred-prosecution agreements, monitoring agreements, consent decrees, settlement orders, or similar agreements with or imposed by any Governmental Body.

Section 3.30. Company Related Party Transactions. Except for indemnification, compensation and other employment arrangements in the ordinary course of business, there are no Contracts, transactions, arrangements or understandings between the Company or any of its Subsidiaries, on the one hand, and any Affiliate or Company Related Party (including any director or officer) thereof, but not including any wholly owned Subsidiary of the Company, on the other hand, that would be required to be disclosed pursuant to Item 404 of Regulation S-K promulgated by the SEC in the Company’s 10-K or proxy statement pertaining to an annual meeting of stockholders.

Section 3.31. No Other Representations and Warranties. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN ARTICLE III OF THIS AGREEMENT (AS MODIFIED BY THE COMPANY DISCLOSURE LETTER), IN ANY OTHER TRANSACTION DOCUMENT TO WHICH IT IS A PARTY AND IN ANY CERTIFICATES REQUIRED TO BE DELIVERED PURSUANT TO THIS AGREEMENT OR THE OTHER TRANSACTION DOCUMENTS TO WHICH IT IS A PARTY, THE COMPANY MAKES NO EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY AND THE COMPANY HEREBY DISCLAIMS ANY SUCH REPRESENTATION OR WARRANTY. IN CONNECTION WITH PARENT’S INVESTIGATION OF THE COMPANY, PARENT MAY HAVE RECEIVED FROM OR ON BEHALF OF THE COMPANY CERTAIN PROJECTIONS. THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH RESPECT TO ESTIMATES, PROJECTIONS AND OTHER FORECASTS AND PLANS (INCLUDING THE REASONABLENESS OF THE ASSUMPTIONS UNDERLYING ESTIMATES, PROJECTIONS AND FORECASTS). THE COMPANY, ON BEHALF OF ITSELF AND ITS SUBSIDIARIES, ACKNOWLEDGES AND AGREES THAT, EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN ARTICLE IV, IN ANY OTHER TRANSACTION DOCUMENT TO WHICH THE COMPANY IS A PARTY OR IN ANY CERTIFICATES REQUIRED TO BE DELIVERED PURSUANT TO THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENTS TO WHICH THE COMPANY IS A PARTY, IT IS NOT ACTING (INCLUDING, AS APPLICABLE, BY ENTERING INTO THIS AGREEMENT, THE OTHER TRANSACTION DOCUMENTS TO WHICH IT IS A PARTY OR CONSUMMATING THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY) IN RELIANCE ON: (A) ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, BY PARENT OR MERGER SUB; (B) ANY ESTIMATE, PROJECTION, PREDICTION, DATA, FINANCIAL INFORMATION, MEMORANDUM, PRESENTATION OR OTHER MATERIALS OR INFORMATION PROVIDED OR ADDRESSED TO THE COMPANY OR ANY OF ITS AFFILIATES OR OTHER REPRESENTATIVES, IN CONNECTION WITH PRESENTATIONS BY OR DISCUSSIONS WITH PARENT’S MANAGEMENT WHETHER PRIOR TO OR AFTER THE DATE OF THIS AGREEMENT OR IN ANY OTHER FORUM OR SETTING; OR (C) THE ACCURACY OR COMPLETENESS OF ANY OTHER REPRESENTATION, WARRANTY, ESTIMATE, PROJECTION, PREDICTION, DATA, FINANCIAL INFORMATION, MEMORANDUM, PRESENTATION OR OTHER MATERIALS OR INFORMATION.

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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF TOPCO, PARENT AND MERGER SUB

Topco, Parent and Merger Sub, jointly and severally, hereby represent and warrant to the Company as follows:

Section 4.1. Organization and Corporate Power. Each of Topco, Parent and Merger Sub is validly existing and in good standing under the Laws of the jurisdiction in which it was organized. Each of Topco, Parent and Merger Sub has all requisite corporate or similar power and authority and all Permits necessary to own, lease and operate its properties and assets, and to carry on its business as it is now being conducted, except where the failure to hold such authorizations, licenses and Permits would not reasonably be expected to have a Parent Material Adverse Effect. Topco owns beneficially and of record all of the outstanding membership interests of Parent free and clear of all Liens and Parent owns beneficially and of record all of the outstanding capital stock of Merger Sub free and clear of all Liens.

Section 4.2. Authorization; Valid and Binding Agreement. Each of Topco, Parent and Merger Sub has all requisite corporate power and authority to enter into, execute and deliver this Agreement and the other Transaction Documents to which it is a party, to perform its obligations hereunder and thereunder and to consummate the Merger. No other corporate action pursuant to the Laws of the jurisdictions in which Topco, Parent or Merger Sub is organized, on the part of Topco, Parent and Merger Sub, is necessary to authorize this Agreement and the other Transaction Documents to which it is a party. Each of Topco, Parent and Merger Sub has duly executed and delivered this Agreement and the other Transaction Documents to which it is a party and, assuming the due authorization, execution and delivery by the Company, this Agreement and the other Transaction Documents to which it is a party constitute its legal, valid and binding obligation, enforceable against it in accordance with its terms except as enforcement may be limited by the Enforceability Exceptions.

Section 4.3. No Breach. The execution, delivery and performance of this Agreement and the other Transaction Documents to which it is a party by Topco, Parent and Merger Sub, and the consummation of the Merger, do not (a) conflict with or violate their respective certificates of formation, certificates of incorporation, operating agreement or bylaws (or similar governing documents) in each case, to the extent applicable, (b) assuming all consents, approvals, authorizations and other actions described in Section 4.4 have been obtained, and all filings and obligations described in Section 4.4 have been made, conflict with or violate any Law or order, judgment or decree to which Topco, Parent, Merger Sub, either of their Subsidiaries or any of their properties or assets is subject or (c) conflict with or result in any breach of, constitute (with or without notice of or lapse of time or both) a default under, result in a violation of, give rise to a right of termination, modification, cancellation or acceleration under any Contract to which Topco, Parent, Merger Sub or any other Subsidiary of Parent is a party, or result in the creation of any Lien upon the properties or assets of Topco, Parent, Merger Sub or any other Subsidiary of Topco, with such exceptions, in the case of each of clauses (b) and (c) above, as would not reasonably be expected to have a Parent Material Adverse Effect.

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Section 4.4. Consents. Except (a) as set forth in Section 3.6 of the Company Disclosure Letter, (b) for applicable requirements of the Exchange Act, (c) for applicable requirements of the Exchange Act, including the filing of the Proxy Statement and the Schedule 13E-3, (d) for any filings required by Nasdaq, the NYSE or OTC and (e) for the filing of the Certificate of Merger, Topco, Parent and Merger Sub are not required to submit any notice, report or other filing with any Governmental Body in connection with the execution, delivery or performance by it of this Agreement or the consummation of the Contemplated Transactions. Other than as stated above, no consent, approval or authorization of any Governmental Body is required to be obtained by the Topco, Parent or Merger Sub in connection with its execution, delivery and performance of this Agreement and the other Transaction Documents to which it is a party or the consummation of the Contemplated Transactions, except for those consents, approvals or authorizations the failure of which to obtain would not reasonably be expected to have a Parent Material Adverse Effect.

Section 4.5. Litigation. As of the date of this Agreement, there are no proceedings pending or, to the Knowledge of Topco, Parent or Merger Sub, threatened against Topco, Parent or any of its Subsidiaries that seeks to enjoin the Merger or the other Contemplated Transactions, other than any such proceedings that have not had and would not be reasonably expected to have a Parent Material Adverse Effect.

Section 4.6. Information Supplied. The information supplied or to be supplied by Topco, Parent or Merger Sub for inclusion or incorporation by reference in the Proxy Statement and the Schedule 13E-3 will not, at the time the Proxy Statement or Schedule 13E-3, as applicable, is first disseminated to the Company’s stockholders or at the time of the Company Stockholder Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by Topco, Parent or Merger Sub with respect to statements made therein based on information supplied by or on behalf of the Company, the Rollover Holders or their respective Affiliates for inclusion or incorporation by reference therein.

Section 4.7. Brokerage. No Person is entitled to any financial advisory fee or similar fee or commission in connection with the Contemplated Transactions based on any arrangement or agreement made by or on behalf of Topco, Parent or Merger Sub.

Section 4.8. Capitalization and Operations of Merger Sub. All of the issued and outstanding capital stock of Merger Sub is, and at the Effective Time will be, owned, directly or indirectly, by Parent. Merger Sub has been formed solely for the purpose of engaging in the Contemplated Transactions and has engaged in no business activities and will have incurred no liabilities or obligations except as contemplated by this Agreement or the other Transaction Documents or incident to its formation and the maintenance of its existence.

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Section 4.9. Ownership of Shares. Neither Topco, Parent nor Merger Sub, nor any of their affiliates or associates (each, as defined in Section 203 of the DGCL), is, or at any time during the last three (3) years has Topco, Parent or Merger Sub or any of their affiliates or associates been, an “interested stockholder” of the Company as defined in Section 203 of the DGCL. Neither Topco, Parent nor Merger Sub, nor any of their affiliates and associates, beneficially owns any Shares or other securities of the Company or any options, warrants or other rights to acquire any economic interest in, the Company. Neither Topco, Parent nor Merger Sub nor any of their Affiliates are an Affiliate of the Company within the meaning of that term under the U.S. federal securities Laws.

Section 4.10. Vote/Approval Required. No vote or consent of the holders of any class or series of capital stock of Topco or Parent is necessary to approve the Merger (other than the consent of its sole member). The vote or consent of Parent as the sole stockholder of Merger Sub is the only vote or consent of the holders of any class or series of capital stock of Merger Sub necessary to approve this Agreement or the Merger.

Section 4.11. Solvency. Assuming the representations and warranties set forth in Article III are true and correct in a manner that would satisfy the condition set forth in Section 6.2(a), the compliance by the Company and its Subsidiaries with the covenants set forth in Section 5.1, the satisfaction or waiver of the conditions set forth in Section 6.1 and Section 6.2 of this Agreement, and the Rollover Holders perform their obligations under the Rollover Agreements, and immediately after giving effect to the Contemplated Transactions, the Surviving Corporation and its Subsidiaries (on a consolidated basis) will be solvent. As used in this paragraph, the term “solvent” means with respect to the Surviving Corporation and its Subsidiaries (on a consolidated basis), as of any date of determination, that the Surviving Corporation and its Subsidiaries (on a consolidated basis) (a) have not incurred debts beyond their ability to pay such debt as they mature (taking into account refinancing alternatives), (b) own assets which have a fair saleable value greater than the amounts required to pay their respective debts as such debts become absolute and mature (taking into account refinancing alternatives), and (c) will not have unreasonably small capital to carry on their respective businesses in which they are engaged immediately following the Effective Time.

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Section 4.12. Investigation by Topco, Parent and Merger Sub; Disclaimer of Reliance.

(a) Each of Topco, Parent and Merger Sub (i) is a sophisticated purchaser, has engaged advisors experienced in the evaluation and purchase of companies such as the Company and its Subsidiaries as contemplated hereunder, and has made its own inquiry and investigation into, and based thereon has formed an independent judgment concerning, the businesses, assets, condition, operations, and prospects of the Company and its Subsidiaries, (ii) has been furnished with or given adequate access to such information about the Company and its Subsidiaries as it has requested, (iii) to the extent it has deemed appropriate, has addressed in this Agreement or any other Transaction Document any and all matters arising out of its investigation and the information provided to it, (iv) has had the opportunity to negotiate the terms and conditions of this Agreement and the Contemplated Transactions, and (v) in determining to proceed with the Contemplated Transactions has not relied on any statements or information (including any information, documents or material made available to Topco, Parent, Merger Sub or their Representatives in any “data rooms,” management presentations, due diligence or in any other form in expectation of the Contemplated Transactions) other than the representations and warranties of the Company set forth in Article III of this Agreement (as modified by the Company Disclosure Letter) or the representations and warranties of the Company set forth in any other Transaction Document to which the Company is a party or in any certificates or documents delivered by the Company in connection with this Agreement or any other Transaction Document. Without limiting in any respect the representations and warranties of the Company set forth in Article III of this Agreement or the representations and warranties of the Company set forth in any other Transaction Document to which the Company is a party or in any certificates or documents delivered by the Company in connection with this Agreement or any other Transaction Document or the express provisions of this Agreement or any Transaction Document to which the Company is a party, each of Topco, Parent and Merger Sub acknowledges and agrees that neither the Company nor any of its Subsidiaries nor any other Person (including any officer, director, member or partner of the Company or any of its Subsidiaries or any of their respective Affiliates) will have or be subject to any liability to Topco, Parent, Merger Sub or any other Person, resulting from Parent’s or Merger Sub’s use of any information, documents or material made available to Topco, Parent, Merger Sub or their Representatives other than the representations and warranties of the Company set forth in Article III of this Agreement (as modified by the Company Disclosure Letter) or in any other Transaction Document to which the Company is a party or in any certificates or documents delivered by the Company in connection with this Agreement or any other Transaction Document to which the Company is a party. Each of Topco, Parent and Merger Sub acknowledges that neither the Company nor any of its Subsidiaries, nor any of their respective Affiliates or other Representatives, have made, nor will any of them be deemed to have made (and nor has Topco, Parent or Merger Sub or any of their respective Affiliates or other Representatives relied upon) any representation, warranty, covenant or agreement, express or implied, with respect to the Company and its Subsidiaries, the businesses, assets, condition, operations and prospects of the Company and its Subsidiaries, or the Contemplated Transactions, other than the representations and warranties of the Company set forth in Article III of this Agreement (as modified by the Company Disclosure Letter) or the representations and warranties of the Company set forth in any other Transaction Document to which the Company is a party or in any certificates or documents delivered by the Company in connection with this Agreement or any other Transaction Document to which the Company is a party. Each of Topco, Parent and Merger Sub acknowledges and agrees that, except for the representations and warranties of the Company set forth in Article III of this Agreement (as modified by the Company Disclosure Letter) or the representations and warranties of the Company set forth in any other Transaction Document to which the Company is a party or in any certificates or documents delivered by the Company in connection with this Agreement or any other Transaction Document to which the Company is a party, the assets and the business of the Company and its Subsidiaries are being transferred on a “where is” and, as to condition, “as is” basis.

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(b) In connection with Topco’s, Parent’s and Merger Sub’s investigation of the Company, each of Topco, Parent and Merger Sub may have received from the Company and its Representatives certain projections and other forecasts and certain business plan information of the Company and its Subsidiaries. Each of Topco, Parent and Merger Sub acknowledges that there are uncertainties inherent in attempting to make such projections and other forecasts and plans and accordingly is not relying on them, that each of Topco, Parent and Merger Sub is familiar with such uncertainties, that each of Topco, Parent and Merger Sub is taking responsibility for making its own evaluation of the adequacy and accuracy of all projections and other forecasts and plans so furnished to it, and that each of Topco, Parent, Merger Sub and their Representatives will have no claim against any Person with respect thereto. Accordingly, each of Topco, Parent and Merger Sub acknowledges that, without limiting the generality of this Section 4.12(b), neither the Company nor any Person acting on behalf of the Company has made any representation or warranty with respect to such projections and other forecasts and plans.

Section 4.13. Other Agreements. Other than the other Transaction Documents, Topco, Parent and Merger Sub have disclosed to the Company all contracts, agreements or understandings (and, with respect to those that are written, Topco, Parent and Merger Sub has furnished to the Company correct and complete copies thereof) between or among Topco, Parent, Merger Sub or any Affiliate of Parent, on the one hand, and any member of the Company Board or officers or employees of the Company or its Subsidiaries, on the other hand.

Section 4.14. Financing.

(a) Parent has delivered, and caused Parent Sponsor to deliver, to the Company a true, complete and correct copy of the Equity Commitment Letter, pursuant to which, upon the terms and subject to the conditions set forth therein, Parent Sponsor has agreed to directly or indirectly invest in Parent the Closing Payment Commitment for the purpose of delivering the Total Merger Consideration and the other permitted purposes expressly set forth therein (the “Equity Financing”) or to pay to the Company any monetary damages up to the Damages Commitment. The Equity Commitment Letter provides that the Company is an express third party beneficiary of and is entitled to enforce (subject to the terms and conditions set forth therein), the Equity Commitment Letter, which, in the case of the Closing Payment Commitment for the purposes of delivering the Total Merger Consideration is solely in connection with the Company’s exercise of its rights under Section 8.13 or Section 7.5.

(b) As of the date hereof, the Equity Commitment Letter is in full force and effect and constitutes the valid, binding and enforceable obligation of Parent or Merger Sub and Parent Sponsor, as applicable, and, to the Knowledge of Parent and Merger Sub, the other parties thereto, enforceable in accordance with their respective terms, except as enforcement may be limited by the Enforceability Exceptions. As of the date hereof, there are no conditions precedent related to the funding of the full amount of the Equity Financing, as applicable, other than the conditions precedent expressly set forth in the Equity Commitment Letter. The Equity Commitment Letter has not been amended or modified in any manner prior to the date of this Agreement, and the respective commitments contained therein have not been terminated, reduced, withdrawn or rescinded in any respect prior to the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2, no such termination, reduction, withdrawal or rescission is contemplated by Topco, Parent or Merger Sub or Parent Sponsor or, to the Knowledge of Topco, Parent and Merger Sub, any other party thereto. As of the date hereof, neither Topco, Parent nor Merger Sub is in default of or breach under the terms and conditions of the Equity Commitment Letter, and, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2, to the Knowledge of Topco, Parent and Merger Sub, no event has occurred that, with or without notice, lapse of time or both would be expected to constitute a default or breach or a failure to satisfy a condition under the terms and conditions of the Equity Commitment Letter.

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(c) As of the date hereof, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2, each of Topco, Parent and Merger Sub has no reason to believe that (i) any of the conditions precedent expressly set forth in the Equity Commitment Letter will not be satisfied on or prior to the Closing Date or (ii) the Equity Financing in the aggregate amounts contemplated by the Equity Commitment Letter will not be available to Topco, Parent and Merger Sub on the Closing Date. Each of Topco, Parent and Merger Sub acknowledges that Parent’s obligations under this Agreement are not subject to any conditions regarding Parent’s, Merger Sub’s, their Affiliates’, or any other Person’s (including, for the avoidance of doubt, the Company or any of its Subsidiaries) ability to obtain the Equity Financing for the consummation of the Contemplated Transactions.

(d) There are no side letters, understandings or other agreements or arrangements of any kind relating to the Equity Commitment Letter or the Equity Financing that could affect the availability or amount of the Equity Financing contemplated by the Equity Commitment Letter in any respect. No fees are required to be paid by Topco or Parent in connection with the provision of the Equity Commitment Letter or the drawing on any commitment made by Parent Sponsor pursuant to the Equity Commitment Letter.

(e) The Equity Financing, when funded in accordance with the Equity Commitment Letter, will provide Parent or Merger Sub with cash proceeds on the Closing Date sufficient to enable Parent and Merger Sub to perform all of their payment obligations under this Agreement at the Closing, including to (i) deliver the Total Merger Consideration and all other amounts required to be paid under Article II, (ii) pay any fees and expenses required to be made by or on behalf of Parent or Merger Sub at Closing, and (iii) cause the Company to repay the Term B Loan to the extent required in connection with the transactions described in this Agreement or the Equity Commitment Letter. As of the date hereof, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2, each of Topco, Parent and Merger Sub has no reason to believe that the representations and warranties contained in the immediately preceding sentence will not be true at and as of the Closing Date. Notwithstanding anything elsewhere in this Agreement to the contrary, in no event shall the receipt or availability of any funds or financing (including the Equity Financing contemplated by the Equity Commitment Letter) by or to Topco, Parent, Merger Sub or any of their respective Affiliates or any other financing transaction be a condition to any of the obligations of Topco, Parent or Merger Sub hereunder.

Section 4.15. CFIUS. Neither Topco, Parent nor Merger Sub is a “foreign person,” as that term is defined in the Defense Production Act of 1950, and all implementing regulations thereof.

Section 4.16. Tax Matters.

(a) Each of Topco and Parent has made valid election(s) such that it is treated as a corporation for U.S. federal, and applicable state and local, income tax purposes at all times since its formation.

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(b) Neither Topco nor any of its Subsidiaries has taken any action that would reasonably be expected to preclude the Parent Sponsor Contribution, the SLR Rollover Contribution, each Stockholder Rollover Contribution, each Additional Rollover Contribution, if any, and each Additional Subscription, if any, taken together, from qualifying for the Intended Tax Treatment.

Section 4.17. No Other Representations and Warranties. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN ARTICLE IV OF THIS AGREEMENT OR IN ANY OTHER TRANSACTION DOCUMENTS TO WHICH TOPCO, PARENT OR MERGER SUB IS A PARTY AND IN ANY CERTIFICATES REQUIRED TO BE DELIVERED PURSUANT TO THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT TO WHICH TOPCO, PARENT OR MERGER SUB IS A PARTY, PARENT AND MERGER SUB MAKE NO EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY, AND TOPCO, PARENT AND MERGER SUB HEREBY DISCLAIM ANY SUCH REPRESENTATION OR WARRANTY.

ARTICLE V

COVENANTS

Section 5.1. Covenants of the Company.

(a) Except (i) as set forth in Section 5.1(a) of the Company Disclosure Letter, (ii) as required by applicable Law, (iii) as expressly permitted or contemplated by this Agreement, the other Transaction Documents or the SLR Financing Agreements to which the Company is a party (including in connection with the Contemplated Transactions), (iv) as necessary in response to Health Measures to protect the health and safety of the Company’s and its Subsidiaries’ customers, suppliers, partners, employees, licensors, licensees, distributors and others having business dealings with the Company and its Subsidiaries (provided that the Company has consulted with Parent in advance (to the extent reasonably practicable) and considered in good faith any recommendations of Parent) or (v) with the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed), from the date of this Agreement until the earlier of the Effective Time or the date this Agreement is validly terminated pursuant to Article VII (the “Pre-Closing Period”), the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to (A) carry on its business in the ordinary course of business, (B) preserve intact its assets, properties and business organization, and (C) preserve its relationships and goodwill with customers, suppliers, partners, licensors, licensees, distributors, Governmental Bodies, employees and others having business dealings with it with the intention that its goodwill and ongoing business will not be impaired in any material respect on the Closing Date. Any action, the subject matter of which is addressed in Section 5.1(b), below, will be deemed compliant with Section 5.1(a) if compliant with Section 5.1(b).

(b) Without limiting the generality of Section 5.1(a), during the Pre-Closing Period and except (i) as set forth in Section 5.1(b) of the Company Disclosure Letter, (ii) as required by applicable Law or (iii) as expressly permitted or contemplated by this Agreement, the other Transaction Documents or the SLR Financing Agreements to which the Company is a party (including in connection with the Contemplated Transactions), the Company shall not and shall not permit any of its Subsidiaries, without the prior written consent of Parent (which consent, except with respect to Section 5.1(b)(i)-(viii), (x), (xii), (xiii), (xv), (xviii), (xix), (xxi), (xxii), and solely with respect to the immediately preceding clauses, Section 5.1(b)(xxiii), will not be unreasonably withheld, conditioned or delayed):

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(i) (A) Establish a record date for, authorize, declare, set aside or pay any dividends on or make other distributions (whether in cash, stock or property) in respect of any of its capital stock or shares or (B) directly or indirectly redeem, repurchase or otherwise acquire any shares of its capital stock or any Company Equity Award except, in each case, (1) for the declaration and payment of dividends or distributions by a direct or indirect wholly owned Subsidiary of the Company solely to its parent, (2) as a result of net share settlement of any Company Equity Award or to satisfy the exercise price or withholding Tax obligations in respect of any Company Equity Award or (3) any forfeitures of any Company Equity Award or options under the Company ESPP;

(ii) grant, issue, sell, pledge, dispose of or otherwise encumber, or authorize the grant, issuance, sale, pledge, disposition or other encumbrance of, (A) any shares of capital stock or other ownership interest in the Company or any of its Subsidiaries, (B) any securities convertible into or exchangeable or exercisable for any such shares or ownership interest (other than SLR Warrants in accordance with the SLR Warrant Amendment Agreement), (C) any phantom equity or similar contractual rights or (D) any rights, warrants, options, stock appreciation rights, restricted stock, stock units or other equity or equity-based compensation to acquire or with respect to any such shares of capital stock, ownership interest or convertible or exchangeable securities except, in each case: (1) for issuances under the Company ESPP or upon the settlement or exercise of any Company Equity Awards outstanding on the date of this Agreement in accordance with the terms of the Company Equity Plans and applicable award agreements as of the date of this Agreement, (2) for issuances in respect of the exercise of Warrants or (3) for transactions solely between or among the Company and its wholly owned Subsidiaries;

(iii) except as required by applicable Law or the terms of a Company Plan as in effect on the date of this Agreement, (A) increase or promise to increase, accelerate the funding, payment or vesting of, the wages, salary or other compensation or benefits with respect to any of the Company’s or any of its Subsidiaries’ directors, officers, employees or other individual service providers, (B) grant any cash or any equity or equity-based incentive award or any other bonus, retention, change in control, transaction, severance or similar compensation payable to any of the Company’s or any of its Subsidiaries’ directors, officers, or employees or other individual service providers, or (C) establish, adopt, enter into, amend or terminate any Company Plan or any other benefit or compensation plan, policy, program, contract, agreement or arrangement that would be a Company Plan if in effect on the date hereof, in each case, other than broad-based changes or amendments made as a result of annual renewal of health or welfare plans that would not materially increase costs to, or obligations of, the Company, Parent or their respective subsidiaries and that are in the ordinary course of business;

(iv) (A) modify, extend, adopt, enter into, amend or terminate any Labor Agreement; (B) recognize or certify any Union as the bargaining representative for any employees of the Company or its Subsidiaries; or (C) implement or announce any employee layoffs, furloughs, reductions in force, plant closings, material reductions in compensation or other similar actions that would reasonably be expected to implicate WARN;

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(v) (A) hire or engage any employees, officers or other individual service providers of the Company or any of its Subsidiaries whose annual base compensation or fee would exceed $200,000 or (B) terminate (other than for cause) any employee or officer of the Company or any of its Subsidiaries whose annual base compensation exceeds $200,000;

(vi) amend any of the Company Organizational Documents or amend in any material respect the comparable charter or organizational documents of any of its Subsidiaries (whether by merger, consolidation or otherwise), adopt a shareholders’ rights plan or enter into any agreement with respect to the voting of its capital stock or capital equity interests;

(vii) effect a recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction or authorize the issuance of any other securities in respect of, in lieu of, or in substitution for shares of its capital stock or capital equity interests, except for any transaction by a wholly owned Subsidiary of the Company that remains a wholly owned Subsidiary after consummation of such transaction;

(viii) adopt a plan of complete or partial liquidation, dissolution, consolidation, restructuring, recapitalization or other reorganization (including spin-offs or carve-outs) of the Company or any of its Subsidiaries;

(ix) make any capital expenditures that are individually or in the aggregate in excess of $250,000 or that exceed amounts indicated in the capital expenditure budget set forth in Section 5.1(b)(ix) of the Company Disclosure Letter;

(x) acquire or agree to acquire, by merging or consolidating with, by purchasing an equity interest in or a portion of the material assets of any business or any corporation, partnership, joint venture, association or other business organization or Person or division thereof, or otherwise acquire or agree to acquire any equity interest in or material assets of any other Person, except (x) in individual transactions involving less than $500,000 in assets in the aggregate or (y) for the purchase of materials from suppliers or vendors in the ordinary course of business;

(xi) except with respect to any intercompany arrangements (including any Indebtedness) solely between or among the Company and/or any of its wholly owned Subsidiaries, (A) incur any Indebtedness, except for (1) Indebtedness incurred under the Credit Agreement for working capital purposes or (2) capital leases, purchase money financing for personal property, equipment financing and letters of credit in the ordinary course of business consistent with past practice; (B) make any loans or advances to any Person that is not a wholly owned Subsidiary of the Company (except for extensions of credit to customers in the ordinary course of business and advances to directors, officers and other employees, in each case, in the ordinary course of business and in compliance in all material respects with the Company’s or its Subsidiaries’ policies related thereto); (C) make any capital contributions to, or investments in, any Person that is not a wholly owned Subsidiary of the Company or (D) repurchase, prepay or refinance any material Indebtedness;

(xii) sell, transfer, license, sublicense, assign, mortgage, encumber or otherwise abandon, withdraw or dispose of (A) any material tangible assets with a fair market value in excess of $100,000 in the aggregate, or (B) any material Owned Intellectual Property, except, in the case of clause (B), non-exclusive licenses granted in the ordinary course of business;

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(xiii) sell, transfer, assign, or otherwise abandon, withdraw or dispose of (whether by merger, consolidation or sale of stock or assets or otherwise) any material assets, business or line of business, except sales or dispositions of inventory and other assets in the ordinary course of business;

(xiv) commence, pay, discharge, settle, compromise or satisfy, or consent to the entry of any order, decree, stipulation or judgment with respect to, any Action (A) for monetary consideration in excess of $250,000 in the aggregate or (B) that would impose any material non-monetary obligations or injunctive relief on the Company or any of its Subsidiaries;

(xv) change its fiscal year, revalue any of its material assets or change any of its financial, actuarial, reserving or Tax accounting methods or practices, in any respect, except as required by GAAP or applicable Law;

(xvi) other than in the ordinary course of business, (A) make, change or revoke any material Tax election with respect to the Company or any of its Subsidiaries, (B) file any amended income or other Tax Return of the Company or any of its Subsidiaries, (C) extend or waive the application of any statute of limitations regarding the assessment or collection of any Tax with respect to the Company or any of its Subsidiaries (other than pursuant to an extension of time to file any Tax Return or otherwise in the ordinary course of business), (D) settle or compromise, or consent to the entry of any order, decree, stipulation or judgment with respect to, any Tax liability with respect to the Company or any of its Subsidiaries for an amount materially in excess of amounts expressly reserved therefor in the financial statements of the Company or any of its Subsidiaries, (E) enter into a “closing agreement” as described in Section 7121 of the Code, or (F) surrender any right to claim a material Tax refund;

(xvii) waive, release or assign any material rights or claims under, or enter into, renew, affirmatively determine not to renew, materially amend, materially modify, terminate, cancel, exercise any options or rights of first offer or refusal under or terminate, any Company Material Contract, material Company Real Property lease or any Contract that would be a Company Material Contract if in existence on the date hereof;

(xviii) abandon, withdraw, terminate, suspend, abrogate, amend or modify in any respect any Company Permits in a manner adverse to the business of the Company or any of its Subsidiaries;

(xix) enter into any new line of business or form a new Subsidiary of the Company;

(xx) cancel, materially reduce, terminate or fail to maintain in effect without replacing material insurance policies covering the Company or any of its Subsidiaries and their respective properties, assets and businesses;

(xxi) waive or release any noncompetition, nonsolicitation, nondisclosure, noninterference, nondisparagement or other analogous restrictive covenant obligation of any current or former officer, director or employee of the Company or its Subsidiaries;

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(xxii) engage in any transaction with, or enter into any agreement, arrangement or understanding with, any Affiliate of the Company, any of its Subsidiaries or other Person covered by Item 404 of Regulation S-K promulgated by the SEC, in each case, that would be required to be disclosed pursuant to Item 404; or

(xxiii) authorize, agree or commit to take any of the actions described in clauses (i) through (xxii) of this Section 5.1(b).

Section 5.2. Access to Information; Confidentiality; Additional Rollover Agreements.

(a) From and after the date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement in accordance with its terms, the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts, upon reasonable advance notice and subject to any prohibition by applicable Law, (i) give Parent and Merger Sub and their respective Representatives reasonable access during normal business hours (under the supervision of appropriate personnel and in a manner that does not unreasonably interfere with the normal operations of the business of the Company) to relevant officers, employees, Representatives, assets and facilities and to relevant books, contracts, work papers and records of the Company and its Subsidiaries, and provide copies of such books, contracts, work papers and records of the Company and its Subsidiaries, in each case, to the extent reasonably requested by Parent or Merger Sub, (ii) permit Parent and Merger Sub to make such non-invasive inspections as they may reasonably request, (iii) furnish Parent and Merger Sub with such financial and operating data and other information with respect to the business, properties, and personnel of the Company as Parent or Merger Sub may from time to time reasonably request and (iv) use commercially reasonable efforts to facilitate site visits by Parent or any of its Representatives at any facility of a third-party contract manufacturer of the Company or any of its Subsidiaries; provided that any such access shall be afforded and any such information shall be furnished at Parent’s expense and provided, further, that the purpose of any such access, in the case of clause (i), or any such request, in the case of clauses (ii) through (iv), will be limited to reasonable business purposes, including the planning of any restructuring, post-closing operations or the integration of the Company, its Subsidiaries, and their respective businesses, on the one hand, with Parent, Parent’s Subsidiaries, and their respective businesses, on the other hand, as well as in connection with the review of financial statements, Taxes, any potential Action or investigation by or before a Governmental Body (including in connection with matters covered under Section 5.14 and SEC or other Governmental Body reporting obligations); provided, however, that subject to Section 5.24, nothing in this Section 5.2(a) shall, with the prior consent of the Company (not to be unreasonably withheld, conditioned or delayed) and subject to any prohibition by applicable Law, prevent Parent or Topco from having reasonable access during normal business hours (under the supervision of appropriate personnel and in a manner that does not unreasonably interfere with the normal operations of the business of the Company) to employees of the Company identified in writing by the Company and Parent for the sole purpose of seeking to have such employees enter into a Company RSU Rollover Agreement, Company PSU Rollover Agreement, Company Stock Option Rollover Agreement or Additional Rollover Agreement, as applicable, or seeking to have such employees that own Company Common Stock subscribe for Topco Series A Preferred Units prior to the Effective Time.

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(b) Information obtained by Parent or Merger Sub pursuant to Section 5.2(a) will constitute “Confidential Information” under the Confidentiality Agreement and will be subject to the provisions of the Confidentiality Agreement, with such Confidentiality Agreement hereby amended to limit the permitted use of any information supplied pursuant to Section 5.2(a) to the purpose specified herein.

(c) Nothing in Section 5.2(a) requires the Company to permit any inspection, or to disclose any information, to the extent (i) the provision of such information violates any of its or its Affiliates’ respective obligations with respect to confidentiality under any applicable Contract or Law, (ii) such information relates to the applicable portions of minutes of the meetings of the Company Board or any committee (including the Special Committee) thereof (including any presentations or other materials prepared by or for the Company Board or any committee (including the Special Committee) thereof) where the Company Board or any committee (including the Special Committee) thereof discussed the Contemplated Transactions or any similar transaction involving the sale of the Company, or a material portion of its assets, to, or combination of the Company with, any Person, any Acquisition Proposal or any Intervening Event, (iii) such inspection or disclosure would reasonably be expected to conflict with applicable Contracts or Laws, or (iv) that affording such access or furnishing such information would in the reasonable opinion of the Company (after consulting counsel) result in loss of legal protection, including the attorney-client privilege and work product doctrine; provided, however, in each case, the Company shall use commercially reasonable efforts to cooperate with Parent to and use commercially reasonable efforts to permit disclosure of the applicable portion of information to Parent, Merger Sub or their respective Representatives to the extent it would not violate applicable Contract or Law or waiver of privilege.

(d) Notwithstanding anything to the contrary herein, (i) the Company may satisfy its obligations set forth above by electronic means if physical access is not feasible or would not be permitted under applicable Law (including as a result of COVID-19 or any Health Measures) and (ii) the Company will not be required to provide access or make any disclosure to Parent, Merger Sub or any of their respective Representatives pursuant to this Section 5.2 to the extent that such access to information is reasonably pertinent to an Action relating to or arising out of the Contemplated Transactions where the Company and its Affiliates, on the one hand, and Parent, Merger Sub, or any of their respective Affiliates, on the other hand, are adverse parties.

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Section 5.3. Acquisition Proposals.

(a) The Company shall not, and shall cause its Subsidiaries and its and their respective directors and officers not to, shall direct its legal counsel, financial advisors and agents serving in such similar capacities not to, and shall not authorize or direct its other Representatives to, directly or indirectly: (i) initiate, solicit, or knowingly encourage or knowingly facilitate the submission of any Acquisition Proposal, (ii) participate or engage in discussions or negotiations with any Person (other than Parent, Merger Sub, SLR (with respect to the Contemplated Transactions or SLR Financing Agreements and the transactions contemplated thereby) or designees or Affiliates of Parent, Merger Sub or SLR (with respect to the Contemplated Transactions or SLR Financing Agreements and the transactions contemplated thereby)) who has submitted an Acquisition Proposal or any proposal, offer or inquiry relating to, or that would reasonably be expected to lead to, an Acquisition Proposal, (iii) provide any non-public information or afford access to the business, properties, assets, books, records or personnel of the Company or any of its Subsidiaries, in each case, to any Person or host any meeting (including by telephone or videoconference) with any Person (in each case, other than Parent, Merger Sub, SLR (with respect to the Contemplated Transactions or SLR Financing Agreements and the transactions contemplated thereby) or any designees or Affiliates of Parent, Merger Sub or SLR (with respect to the Contemplated Transactions or SLR Financing Agreements and the transactions contemplated thereby) or any Rollover Holder or potential Rollover Holder in connection with an actual or potential investment in Topco) in connection with, or for the purpose of knowingly encouraging or facilitating, an Acquisition Proposal or any offer, proposal or inquiry relating to an Acquisition Proposal, (iv) in connection with any Acquisition Proposal, grant any waiver, amendment or release of or under, or fail to enforce, any confidentiality agreement (other than any standstill or similar provision), in each case, in a manner favorable to the counterparty thereto, or (v) enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, or other Contract or agreement relating to an Acquisition Proposal (other than with Parent, Merger Sub, SLR (with respect to the Contemplated Transactions or SLR Financing Agreements and the transactions contemplated thereby) or designees or Affiliates of Parent, Merger Sub or SLR (with respect to the Contemplated Transactions or SLR Financing Agreements and the transactions contemplated thereby)). The Company shall, and shall cause its Subsidiaries to, and shall instruct its Representatives to, immediately cease any solicitation, discussions, or negotiations with any Person (other than Parent, Merger Sub, SLR (with respect to the Contemplated Transactions or SLR Financing Agreements and the transactions contemplated thereby) or any designee of Parent, Merger Sub, SLR (with respect to the Contemplated Transactions or SLR Financing Agreements and the transactions contemplated thereby) or any Rollover Holder or potential Rollover Holder in connection with an actual or potential investment in Topco) with respect to any Acquisition Proposal or any inquiry, proposal or offer relating to an Acquisition Proposal, and, promptly (but in no event later than forty-eight (48) hours following the date of this Agreement) shall request the return or destruction of all confidential information provided by or on behalf of the Company or its Subsidiaries to any such Person in the twelve (12) months prior to the date hereof and terminate access to any physical or electronic data rooms relating to a possible or actual Acquisition Proposal. Notwithstanding the foregoing, the Company and its Representatives may (x) seek to clarify and understand the terms and conditions of any inquiry or proposal made by any Person solely to determine whether such inquiry or proposal constitutes an Acquisition Proposal and (y) inform a Person that has made or to the Knowledge of the Company, is considering making, following the date hereof, an Acquisition Proposal of the provisions of this Section 5.3. Any breach of this Section 5.3(a) by any Subsidiary of the Company or any of their respective directors or officers shall be deemed to constitute a breach by the Company.

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(b) Notwithstanding Section 5.3(a) or any other provision of this Agreement, if at any time following the date of this Agreement and until the Company’s receipt of the Requisite Stockholder Approval, (i) the Company has received a bona fide written Acquisition Proposal that did not result from a material breach of Section 5.3(a) and (ii) the Company Board or a committee (including the Special Committee or an alternative special committee of the Company Board consisting of independent directors) thereof determines in good faith, after consultation with outside legal counsel and financial advisors, that such Acquisition Proposal constitutes or is reasonably likely to lead to or result in a Superior Proposal and that failure to take such action would reasonably be expected to be inconsistent with the fiduciary duties of the Company Board or the Special Committee (or an alternative special committee of the Company Board consisting of independent directors) under applicable Law, then the Company may (A) furnish information with respect to the Company and its Subsidiaries to the Person making such Acquisition Proposal and its Representatives and (B) participate in discussions or negotiations with such Person and its Representatives regarding such Acquisition Proposal; provided that (1) the Company shall not, shall cause its Subsidiaries not to, shall direct its legal counsel, financial advisors and agents serving in such similar capacities not to, and shall not authorize or direct its other Representatives to, disclose such information to, or participate in such discussions or negotiations with, such Person unless the Company (I) has entered into a confidentiality agreement prior to the date of this Agreement with such Person, or (II) enters into a customary confidentiality agreement with such Person following the date of this Agreement, in the case of clause (II), (x) with terms governing confidentiality and use of such information that, taken as a whole, are not materially less restrictive to the other Person than those contained in the Confidentiality Agreement (except that any such confidentiality agreement need not contain a standstill or similar provision), and (y) that does not prevent the Company from providing any information to Parent and Merger Sub to the extent required by this Agreement; provided that any competitively sensitive information or data provided to any such Person pursuant to such confidentiality agreement who is, or whose Affiliates include, a competitor, supplier or customer of the Company or any of its Subsidiaries will be provided in a separate “clean data room” and subject to customary “clean team” arrangements regarding access to such information or data and (2) the Company shall, as promptly as reasonably practicable, and in any event within one (1) Business Day, provide or make available to Parent, Merger Sub and their respective Representatives any non-public information concerning the Company or any of its Subsidiaries provided or made available to such other Person or any of its Representatives that was not previously provided or made available to Parent and Merger Sub.

(c) The Company shall promptly (and in any event within forty-eight (48) hours) notify Parent in writing of the receipt by the Company of any Acquisition Proposal or any offer or proposal that would reasonably be expected to result in an Acquisition Proposal, which notice shall include any written indication by any Person that it is considering making an Acquisition Proposal, including (A) the identity of the Person or group of Persons making such Acquisition Proposal, and (B) a copy of any such Acquisition Proposal or such offer or proposal that is made in writing (or, if oral, a reasonably detailed summary of the material terms and conditions of any such Acquisition Proposal, including, for the avoidance of doubt, the form and amount of consideration, the proposed financing arrangements and any conditions to closing (to the extent so communicated to the Company)). Thereafter, the Company shall use reasonable best efforts to keep Parent reasonably informed of the status and material terms and developments of any such Acquisition Proposal or offer or proposal (including any amendments, revisions or other changes to the material terms thereof), on a reasonably prompt basis (and in any event within forty-eight (48) hours of any material changes or developments). Further, for the avoidance of doubt, any information provided by the Company or its Representatives to Parent and its Representatives pursuant to this Section 5.3(c), shall be kept confidential in accordance with the Confidentiality Agreement.

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(d) Except as expressly permitted by Section 5.3(e) or Section 5.3(f), the Company Board and each committee (which committee must include the Special Committee or an alternative special committee of the Company Board consistent of independent directors) thereof shall not, subject to the terms and conditions of this Agreement, (i) cause or permit the Company or its Subsidiaries to enter into any acquisition agreement, merger agreement, joint venture agreement, partnership agreement or similar definitive agreement (other than a confidentiality agreement referred to and entered into in compliance with Section 5.3(b)) relating to any Acquisition Proposal (an “Alternative Acquisition Agreement”) or (ii) make a Change of Board Recommendation.

(e) Notwithstanding Section 5.3(d) or any other provision of this Agreement, prior to the Company’s receipt of the Requisite Stockholder Approval:

(i) the Company may terminate this Agreement to enter into an Alternative Acquisition Agreement if (A) the Company receives an Acquisition Proposal that did not result from a material breach of Section 5.3(a) and that the Company Board or a committee (including the Special Committee) thereof determines in good faith, after consultation with outside legal counsel and financial advisors, constitutes a Superior Proposal; (B) the Company has notified Parent in writing that it intends to terminate this Agreement to enter into an Alternative Acquisition Agreement, which notice shall include the information with respect to such Acquisition Proposal that is specified in Section 5.3(c); and no earlier than the end of the Notice Period, after negotiating and instructing those Representatives who would reasonably be expected by the Company to participate in such negotiations, to negotiate during the Notice Period to allow Parent to offer adjustments to the terms of this Agreement such that the Acquisition Proposal (C) no longer continues to constitute a Superior Proposal (if such negotiation is desired by Parent), the Company Board or any committee (including the Special Committee) thereof determines in good faith, after consultation with outside legal counsel and financial advisors, after taking into consideration the terms of any proposed amendment or modification to this Agreement, the Equity Commitment Letter that Parent has committed to make during the Notice Period, that the Acquisition Proposal that is subject of the Determination Notice continues to constitute a Superior Proposal and that failure to take such action would reasonably be expected to be inconsistent with the fiduciary duties of the Company under applicable Law;

(ii) the Company Board or a committee (including the Special Committee) may make a Change of Board Recommendation in response to an Acquisition Proposal if (A) the Company receives an Acquisition Proposal that did not result from a material breach of this Section 5.3(a) and that the Company Board or a committee (including the Special Committee) thereof determines in good faith, after consultation with outside legal counsel and financial advisors, constitutes a Superior Proposal, (B) the Company has notified Parent in writing that it intends to effect a Change of Board Recommendation, which notice shall include the information with respect to such Acquisition Proposal that is specified in Section 5.3(c), and (C) no earlier than the end of the Notice Period, after negotiating and instructing those Representatives who would reasonably be expected by the Company to participate in such negotiations, to negotiate during the Notice Period to allow Parent to offer adjustments to the terms of this Agreement such that the Acquisition Proposal no longer continues to constitute a Superior Proposal (if such negotiation is desired by Parent), the Company Board or a committee (including the Special Committee) thereof determines in good faith, after consultation with outside legal counsel and financial advisors, that the Acquisition Proposal that is the subject of the Determination Notice continues to constitute a Superior Proposal and that the failure to make a Change of Board Recommendation would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, in each case, after taking into consideration any changes to this Agreement, the Equity Commitment Letter that Parent has committed to make during the Notice Period;

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(iii) other than in connection with an Acquisition Proposal, the Company Board or a committee (including the Special Committee) thereof may make a Change of Board Recommendation in response to an Intervening Event if (A) the Company has notified Parent in writing that it intends to effect a Change of Board Recommendation, which notice shall describe the Intervening Event in reasonable detail, and (B) no earlier than the end of the Notice Period, after negotiating and instructing those Representatives who would reasonably be expected by the Company to participate in such negotiations, to negotiate during the Notice Period to allow Parent to offer adjustments to the terms of this Agreement (if such negotiation is desired by Parent), the Company Board or any committee (including the Special Committee) thereof determine in good faith, after consultation with outside legal counsel and financial advisors, and after considering the terms of any proposed amendment or modification to this Agreement that Parent has committed to make during the Notice Period, that the failure to effect a Change of Board Recommendation in response to such Intervening Event would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law; and

(iv) during any Notice Period, if requested by Parent, the Company shall, and shall instruct those Representatives who would reasonably be expected by the Company to participate in such negotiations to, negotiate in good faith with Parent and its Representatives regarding potential changes to this Agreement and the other Transaction Documents.

The provisions of this Section 5.3(e) apply to (x) any amendment, revision or change to any material terms or conditions (it being understood that the per share consideration payable in respect of each share of Company Common Stock shall constitute a material term) of any applicable Superior Proposal with respect to Section 5.3(e)(i) and Section 5.3(e)(ii) and require a revised Determination Notice and a new Notice Period pursuant to clause (i)(C) or (ii)(C), as the case may be, and (y) any material change to or material development in respect of the facts and circumstances relating to any Intervening Event with respect to Section 5.3(e)(iii) and require a revised Determination Notice and a new Notice Period pursuant to clause (iii)(B).

(f) Nothing contained in this Agreement prohibits (i) the Company Board or a committee (including the Special Committee) thereof from (A) taking and disclosing to the holders of Shares a position contemplated by Rule 14e‑2(a) and Rule 14d-9(f) promulgated under the Exchange Act, or (B) making any public statement if the Company Board or a committee (including the Special Committee) thereof determines in good faith (after consultation with outside legal counsel) that the failure to make such statement would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law or (ii) the Company or the Company Board from making any disclosure required under the Exchange Act; provided that any such action that would otherwise constitute a Change of Board Recommendation shall be made only in accordance with Section 5.3.

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(g) Notwithstanding anything to the contrary in this Agreement, nothing in this Section 5.3 shall apply to, or shall be deemed to prohibit, limit, restrict, impair or otherwise affect the ability of the Company, its Subsidiaries and its and their respective Representatives to engage in discussions or negotiations or take any other action that would otherwise be prohibited by Section 5.3(a) (i) in connection with an actual or potential investment in Topco by any actual or potential Rollover Holder (including, for the avoidance of doubt, any discussions or negotiations with any potential Rollover Holder, SLR or their respective Affiliates or Representatives) and (ii) with SLR and its Affiliates and Representatives in its capacity as a lender of the Company and its Subsidiaries, including in connection with the Contemplated Transactions, the SLR Financing Agreements and the other Loan Documents, and no agreement, discussion, negotiation or action taken by the Company, its Subsidiaries or any of its Representatives with respect to any actual or potential Rollover Holder in connection with an actual or potential investment in Topco or any discussions with SLR or any of its Affiliates or Representatives in its capacity as a lender of the Company and its Subsidiaries, including in connection with the Contemplated Transactions, the SLR Financing Agreements and the other Loan Documents, shall be deemed a breach or violation of this Section 5.3.

(h) Nothing in Section 5.3(a) shall apply to, or shall be deemed to prohibit, limit, restrict, impair or otherwise affect the ability of the Company, its Subsidiaries and its and their respective Representatives to contact or engage in discussions with other third parties who operate in the same industry as the Company and its Subsidiaries regarding current or potential strategic business relationships with the Company and its Subsidiaries, so long as (A) such discussions do not relate to, or would not reasonably be expected to result in the submission to the Company of, any Acquisition Proposal and (B) such contact and discussion are not made with the intent to initiate, solicit, or knowingly encourage or knowingly facilitate the submission of any Acquisition Proposal, or with the intent of circumventing the restrictions set forth in Section 5.3(a). Prior to the any officers of the Company or its Subsidiaries initiating any senior executive-level discussion with any third parties who operate in the same industry as the Company or its Subsidiaries regarding current or potential strategic business relationships with the Company, the Company and its Subsidiaries shall consult with Parent regarding outreach to such third parties, and obtain Parent’s prior written consent (which consent will not be unreasonably withheld, conditioned or delayed) regarding such contact and discussion; provided, however, that it is understood and agreed that the foregoing shall in no way limit or restrict any ordinary course business discussions of non-senior executive level employees of the Company in the ordinary course.

Section 5.4. Proxy Statement; Schedule 13E-3.

(a) Promptly following the date hereof, and in no event later than forty-five (45) days following the date of this Agreement, the Company will prepare and file with the SEC a preliminary proxy statement (as amended or supplemented, the “Proxy Statement”) relating to the Company Stockholder Meeting and for the purpose of obtaining the Requisite Stockholder Approval, and the Company and Parent will jointly prepare and file with the SEC a Schedule 13E-3; provided that neither the Company nor Parent shall be in breach of this Section 5.4(a) as a result of any delay in filing the Proxy Statement or the Schedule 13E-3 caused by the failure of any party or any filing person thereunder to comply with its obligations under Section 5.4(b) or provide information reasonably necessary in connection therewith. The Company shall use reasonable best efforts to cause the Proxy Statement when filed to comply as to form, in all material respects, with the provisions of the Exchange Act and the rules and regulations promulgated thereunder and shall cause the Proxy Statement, when mailed to Company’s Stockholders, to comply as to form, in all material respects, with the provisions of the Exchange Act and the rules and regulations promulgated thereunder. Subject to Section 5.3(e), the Company must include the Company Board Recommendation in the Proxy Statement. The Company shall use its commercially reasonable efforts to have the Proxy Statement cleared by the SEC as promptly as practicable after such filing.

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(b) Each of the Company, on the one hand, and Topco, Parent and Merger Sub, on the other hand, will furnish all information concerning it and its Affiliates, if applicable, as the other party may reasonably request in connection with the preparation and filing with the SEC of the Proxy Statement and the Schedule 13E-3. If at any time prior to the Company Stockholder Meeting any information relating to the Company, Parent, Merger Sub or any of their respective Affiliates should be discovered by the Company, on the one hand, or Parent, on the other hand, that should be set forth or incorporated by reference in an amendment or supplement to the Proxy Statement or the Schedule 13E-3, as the case may be, so that such filing would not include any misstatement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, then the party that discovers such information will promptly notify the other, and an appropriate amendment or supplement to such filing describing such information will be promptly prepared and filed with the SEC by the appropriate party and, to the extent required by applicable Law or the SEC or its staff, disseminated to the Company’s stockholders. Notwithstanding the forgoing, no representation, warranty, covenant or agreement is made by the Company with respect to any information supplied by Topco, Parent, Merger Sub or SLR for inclusion or incorporation by reference into the Proxy Statement or the Schedule 13E-3.

(c) The Company and its Affiliates, on the one hand, and Parent and, its Affiliates, on the other hand, may not communicate in writing with the SEC or its staff with respect to the Proxy Statement or the Schedule 13E-3 without first providing the other party a reasonable opportunity to review and comment on such written communication, and each party will give good faith consideration to all reasonable additions, deletions or changes suggested thereto by the other parties or their respective counsel; provided, that the foregoing shall not apply in respect of any communications in respect of a Change of Board Recommendation. The Company, on the one hand, and Parent, on the other hand, will advise the other, promptly after it receives notice thereof, of any receipt of a request by the SEC or its staff for (i) any amendment or revisions to the Proxy Statement or the Schedule 13E-3; (ii) any receipt of comments from the SEC or its staff on the Proxy Statement or the Schedule 13E-3; or (iii) any receipt of a request by the SEC or its staff for additional information in connection therewith. Subject to applicable Law, the Company will use its commercially reasonable efforts to cause the Proxy Statement and the Schedule 13E-3 to be disseminated to the Company stockholders as promptly as reasonably practicable (and in any event no later than the first Business Day following the tenth (10^th) calendar day) following the resolution of any comments of the SEC or the staff of the SEC with respect to the preliminary Proxy Statement or the Schedule 13E-3 (which resolution will be deemed to occur if the SEC has not affirmatively notified the Company prior to the end of the tenth (10^th) calendar day after filing the preliminary Proxy Statement and the Schedule 13E-3 that the SEC will or will not be reviewing the Proxy Statement and the Schedule 13E-3) (the “Clearance Date”).

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Section 5.5. Company Stockholder Meeting.

(a) Subject to the provisions of this Agreement, the Company will take all actions necessary in accordance with the DGCL, the Exchange Act and the Company Organizational Documents to establish a record date for (and the Company will not change the record date without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed)) and, duly call, give notice of, convene and hold, a meeting of its stockholders (the “Company Stockholder Meeting”), as promptly as reasonably practicable following the Clearance Date for the purpose of obtaining the Requisite Stockholder Approval. Subject to the provisions of this Agreement, the Company will conduct a “broker search” in accordance with Rule 14a-13 of the Exchange Act in a manner to enable the record date for the Company Stockholder Meeting to be set so that the Company Stockholder Meeting can be held promptly following the effectiveness of the Proxy Statement. Notwithstanding anything to the contrary in this Agreement, the Company will not be required to convene and hold the Company Stockholder Meeting at any time prior to the thirty-fifth (35^th) day following the first mailing of the Proxy Statement to the Company’s stockholders. Subject to Section 5.3(e) and unless there has been a Change of Board Recommendation made in compliance with Section 5.3, the Company will (i) use its commercially reasonable efforts to solicit proxies to obtain the Requisite Stockholder Approval, (ii) take all reasonable lawful actions to solicit the Requisite Stockholder Approval and (iii) provide regular updates to Parent with respect to the proxy solicitation for the Company Stockholder Meeting (including interim results).

(b) Notwithstanding anything to the contrary in this Agreement, nothing will prevent the Company from postponing or adjourning the Company Stockholder Meeting (i) to allow time for the filing or dissemination of any supplemental or amended disclosure document that the Company Board or the Special Committee has determined in good faith (after consultation with outside legal counsel) is required to be filed and disseminated under applicable Laws, or an order or request from the SEC or its staff, (ii) if there are holders of an insufficient number of shares of the Company Common Stock present or represented by proxy at the Company Stockholder Meeting to constitute a quorum at the Company Stockholder Meeting (it being understood that the Company may not postpone or adjourn the Company Stockholder Meeting more than two (2) times pursuant to this clause (ii) or adjourn the Company Stockholder Meeting to a date that is more than fifteen (15) days past the originally scheduled date, in each case, without Parent’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed)); or (iii) the Company is required to postpone or adjourn the Company Stockholder Meeting by applicable Law; provided that with respect to clauses (i) and (ii), the Company shall not postpone or adjourn the Company Stockholder Meeting more than two (2) times without Parent’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed). In the event that the date of the Company Stockholder Meeting as originally called is for any reason postponed or adjourned, except as required by applicable Law, the Company shall use commercially reasonable efforts to implement such postponement or adjournment in such a way that the Company is not required under applicable Law to establish a new record date for the Company Stockholders Meeting, as so postponed or adjourned. Notwithstanding anything in this Agreement to the contrary, as long as the Company has complied with its obligations under Section 5.8 in all material respects, the Company will not be required to hold the Company Stockholder Meeting prior to the date that is three (3) Business Days after the date on which Parent notifies the Company that all of the filings (or draft filings where applicable) necessary to seek the Regulatory Approvals set forth in Section 5.8(a) of the Company Disclosure Letter have been filed with the relevant Governmental Body (and such filings have actually been made) and the Company will be permitted to postpone or adjourn the meeting until such filings (or draft filings as applicable) have been filed. Notwithstanding anything to the contrary herein, unless this Agreement is validly terminated in accordance with Article VII, the Company will submit this Agreement to the Company’s stockholders at the Company Stockholder Meeting for the purpose of obtaining the Requisite Stockholder Approval even if the Company Board (or the Special Committee) has effected a Change of Board Recommendation.

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Section 5.6. Employment and Employee Benefits Matters.

(a) Subject to the terms of any agreement between a Current Employee and the Company, Parent shall cause the Surviving Corporation and each of its other Subsidiaries to, for a period of one year following the Effective Time (or until employment terminates, if sooner), maintain for each individual employed by the Company or any of its Subsidiaries immediately prior to the Effective Time (each, a “Current Employee”) (i) an annual base salary and target annual cash bonus opportunity (excluding equity-based compensation and, with respect to the 2025 performance year, specific performance goals) that are, in each case, no less than those provided to the Current Employee as of immediately prior to the Effective Time, (ii) employee benefits that are substantially comparable in the aggregate to those maintained for and provided to the Current Employee as of immediately prior to the Effective Time (in each case, excluding equity, equity-based, deferred compensation, severance, change in control, retention or transaction-related benefits, specific performance goals for any cash incentive compensation for the 2025 performance year, defined benefit pension and post-retirement welfare arrangements) and (iii) severance benefits that are at least as favorable as the severance benefits provided by the Company or one of its Subsidiaries to the Current Employee as of immediately prior to the Effective Time and to the extent set forth on Section 5.6(a) of the Company Disclosure Letter, subject to, as a condition to such Current Employee receiving such severance in connection with such Current Employee’s termination, the applicable Current Employee having then signed and not revoked a release of claims in a form substantially in the form of the Company’s standard release of claims and, in each case, except as otherwise agreed to with a Current Employee.

(b) Parent shall use commercially reasonable efforts to cause the Surviving Corporation to cause service rendered by Current Employees to the Company and its Subsidiaries (as well as service with any predecessor employer of the Company or any such Subsidiary, to the extent service with the predecessor employer is recognized by the Company or such Subsidiary under the comparable Company Plans) prior to the Effective Time to be taken into account for purposes of vesting and eligibility to participate and, solely for vacation and paid time off policies and severance plans and policies, determining levels of benefits under all employee benefit plans, programs, or arrangements of Parent and the Surviving Corporation and its Subsidiaries (the “New Plans”) in which the Current Employees are otherwise eligible to participate, to the same extent and for the same purpose as such service was taken into account under the corresponding Company Plans immediately prior to the Effective Time (the “Old Plans”); provided that the foregoing will not apply to the extent that its application would result in a duplication of benefits or coverage with respect to the same type of benefits and period of service. Parent shall use commercially reasonable efforts to cause the Surviving Corporation to waive any eligibility requirements, waiting periods, actively-at-work requirements, evidence of insurability requirements or pre-existing condition limitations under any New Plan to the extent such restriction would not have been applicable to a Current Employee under any comparable Old Plan in which they participated prior to the Effective Time. Parent shall use commercially reasonable efforts to cause the Surviving Corporation and its Subsidiaries to give such Current Employees credit under the New Plans for any eligible expenses incurred by such Current Employees and their covered dependents and credited to such person under the comparable Old Plan during the portion of the plan year prior to the Effective Time for purposes of satisfying all co-payment, co-insurance, deductibles, maximum out-of-pocket requirements, and other out-of-pocket expenses applicable to such Current Employees and their covered dependents under the New Plans in respect of the plan year in which the Effective Time occurs.

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(c) Notwithstanding anything in this Agreement to the contrary, the terms and conditions of employment for any employees covered by a Labor Agreement shall be governed by the applicable Labor Agreement until the expiration, modification or termination of such Labor Agreement in accordance with its terms and applicable Law. The Company shall, and shall cause its Subsidiaries to use commercially reasonable efforts to satisfy any legal or contractual requirements to provide notice to, or carry out any information and/or consultation procedure with, any employee or groups of employees (or any individual service provider or groups of individual service providers) of the Company or any of its Subsidiaries, or any union, works council or similar employee representative organization (a “Labor Organization”) which is required by applicable Law or Contract of the Company with a Labor Organization as a result of the Contemplated Transactions (the “Labor Consultations”). In connection with the Labor Consultations, the Company shall (i) keep Parent reasonably informed of the status of any material developments with respect to such Labor Consultations, (ii) provide Parent with a reasonable opportunity to review, prior to distribution, any written material communications to any Labor Organizations with respect to such Labor Consultations and consider in good faith Parent’s reasonable comments thereto, and (iii) provide Parent with a true and certified copy of any written opinion or written statement delivered by any Labor Organization.

(d) No provision of this Agreement (i) prohibits Parent or the Surviving Corporation from establishing, amending or terminating any Company Plan or any other benefit or compensation plan, policy or arrangement, (ii) requires Parent or the Surviving Corporation to keep any Person employed for any period of time or to offer any particular term of employment, (iii) constitutes the termination of, establishment or adoption of, or amendment to, any Company Plan or other benefit or compensation plan, policy or arrangement or (iv) confers upon any Current Employee or any other Person any third-party beneficiary or similar rights or remedies.

Section 5.7. Directors’ and Officers’ Indemnification and Insurance.

(a) Topco shall cause the Surviving Corporation’s certificate of incorporation and bylaws to contain provisions no less favorable with respect to indemnification, advancement of expenses, and exculpation from liabilities of current (as of the Effective Time) and former directors, officers and employees of the Company than are currently provided in the Certificate of Incorporation and Bylaws as of the date hereof, which provisions may not be amended, repealed, or otherwise modified in any manner that would adversely affect the rights thereunder of any such individuals until the later of (i) the expiration date of the statute of limitations applicable to such matters and (ii) six (6) years from the Effective Time, and in the event that any Action is pending or asserted or any claim made during such period, until the disposition of any such Action or claim, unless such amendment, modification or repeal is required by applicable Law, in which case Topco shall, and shall cause the Surviving Corporation to, make such changes to the certificate of incorporation and the bylaws of the Surviving Corporation as to have the least adverse effect on the rights of the individuals referenced in this Section 5.7.

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(b) Without limiting any additional rights that any Person may have under any agreement or Company Plan, from and after the Effective Time and until the date that is six (6) years from the Closing Date, the Surviving Corporation shall indemnify and hold harmless each present (as of the Effective Time) or former director, officer, employee or fiduciary of the Company (each, together with such Person’s heirs, executors or administrators, an “Indemnified Party”), against all obligations to pay a judgment, settlement, or penalty and reasonable and documented out-of-pocket expenses incurred by the Indemnified Party in connection with any Action, whether civil, criminal, administrative, arbitrative, or investigative, and whether formal or informal, arising out of or pertaining to any action or omission, including any action or omission in connection with the fact that the Indemnified Party is or was an officer, director, employee, or fiduciary of the Company or, while serving as an officer, director, employee or fiduciary of the Company, is or was serving as an officer, director, employee or fiduciary of any of the Company’s Subsidiaries or another entity if such service was at the request of the Company, whether asserted or claimed prior to, at, or after the Effective Time, to the fullest extent permitted under applicable Law; provided, that, employees and fiduciaries of the Company shall only be included as Indemnified Parties to the extent the Company provides similar rights to indemnification and exculpation to such Persons as of the date of this Agreement. In the event of any such Action, the Surviving Corporation shall advance to such Indemnified Party reasonable and documented out-of-pocket expenses that may be reasonably incurred by such Indemnified Party in the defense of such Action, including reasonable and documented out-of-pocket attorneys’ fees (provided that any such Indemnified Party to whom expenses are advanced shall have provided, to the extent required by the DGCL, an undertaking to repay such advances if it is finally determined that such Indemnified Party is not entitled to indemnification).

(c) Notwithstanding anything to the contrary in this Agreement, the Company may purchase prior to the Effective Time, and if the Company does not purchase prior to the Effective Time, the Surviving Corporation shall purchase at or after the Effective Time, a tail policy under the current directors’ and officers’ liability insurance policies maintained at such time by the Company, which tail policy (i) will be effective for a period from the Effective Time through and including the date that is six (6) years after the Closing Date with respect to claims arising from facts or events that existed or occurred prior to or at the Effective Time and (ii) will contain coverage that is at least as protective (in the aggregate) to such directors and officers as the coverage provided by such existing policies; provided that the aggregate premium for such tail policy may not be in excess of two hundred fifty percent (250%) of the last annual premium paid prior to the Effective Time (the “Maximum Tail Premium”). Parent shall cause the Surviving Corporation to (x) maintain such policy in full force and effect for the full term thereof and (y) honor all obligations thereunder.

(d) Without limiting any of the rights or obligations under this Section 5.7, from and after the Effective Time, the Surviving Corporation shall keep in full force and effect, and shall comply with the terms and conditions of, any agreement in effect as of the date of this Agreement and made available to Parent between or among the Company or any of its Subsidiaries and any Indemnified Party providing for the indemnification of such Indemnified Party and Parent will cause the Surviving Corporation to perform its obligations pursuant to such agreements.

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(e) This Section 5.7 will survive the consummation of the Merger and is intended to benefit, and is enforceable by, any Indemnified Party. The indemnification and advancement provided for in this Section 5.7 is not exclusive of any other rights to which the Indemnified Party is entitled whether pursuant to Law, Contract or otherwise. If the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity resulting from such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, Topco shall use commercially reasonable efforts to make proper provisions such that the applicable acquiror, successor or assign will assume the applicable obligations set forth in this Section 5.7.

Section 5.8. Further Action; Efforts.

(a) Subject to the terms and conditions of this Agreement, prior to the Effective Time, each party shall, and shall cause its respective Subsidiaries to, use its commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper, or advisable under applicable Laws to consummate the Merger and the other Contemplated Transactions as promptly as possible and, in any event, by or before the Outside Date. Notwithstanding anything in this Agreement to the contrary, the parties hereto agree to use commercially reasonable efforts to (i) obtain or cause to be obtained, or make or cause to be made, all required permits, licenses, registrations, certificates, authorizations, orders, exemptions, clearances, consents and approvals under applicable Antitrust Laws, Foreign Investments Laws and Healthcare Laws set forth on Schedule 5.8(a) of the Company Disclosure Letter in connection with the Contemplated Transactions, in each case, as promptly as practicable and in any event prior to the expiration of any applicable legal deadline (provided that, unless otherwise agreed by the Company and Parent in writing, the applicable filings (or draft filings where applicable) pursuant to the Regulatory Approvals set forth in Section 5.8(a) of the Company Disclosure Letter must be made as promptly as practicable after the date of this Agreement (and in no event later than ten (10) Business Days after the date of this Agreement)), and (ii) make an appropriate response as promptly as practicable to any request for information and documentary material that may be made by a Governmental Body pursuant to any Antitrust Laws, Foreign Investment Laws or Healthcare Laws. Parent shall, with the reasonable cooperation of the Company, be responsible for making any filing or notification required for the purposes of consents or approvals required under any applicable Antitrust Laws or Foreign Investment Laws. The Company shall, with the reasonable cooperation of Parent, be responsible for making any filing or notification required for the purposes of the Regulatory Approvals required under any applicable Healthcare Laws. The parties hereto shall consult and cooperate with one another, and consider in good faith the views of one another, in connection with, and provide to the other parties in advance, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions, and proposals made or submitted by or on behalf of such party in connection with proceedings under or relating to any Antitrust Laws, Foreign Investment Laws or Healthcare Laws.

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(b) Without limiting the foregoing, the parties hereto agree, in each case in connection with the Merger or the other Contemplated Transactions (i) to give each other reasonable advance notice of all meetings with any Governmental Body relating to any Antitrust Laws, Foreign Investment Laws or Healthcare Laws, (ii) to give each other an opportunity to participate in each of such meetings, (iii) to the extent practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Body relating to any Antitrust Laws, Foreign Investment Laws or Healthcare Laws, (iv) if any Governmental Body initiates a substantive oral communication regarding any Antitrust Laws, Foreign Investment Laws or Healthcare Laws, to promptly notify the other parties of the substance of such communication, (v) to provide each other with a reasonable advance opportunity to review and comment upon all substantive written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Body regarding any Antitrust Laws, Foreign Investment Laws or Healthcare Laws and (vi) to provide each other with copies of all substantive written communications to or from any Governmental Body relating to any Antitrust Laws, Foreign Investment Laws or Healthcare Laws. Any such disclosures or provision of copies by one party to the others may be redacted or made on an outside counsel basis, if and to the extent reasonably appropriate.

(c) Notwithstanding anything in this Agreement to the contrary, Parent shall, and shall cause each of its Subsidiaries to, (i) take any and all actions necessary to obtain any consents, clearances, or approvals required under or in connection with Antitrust Laws, and to enable all waiting periods under applicable Antitrust Laws to expire, and to avoid or eliminate impediments under applicable Antitrust Laws asserted by any Governmental Body, (ii) use its commercially reasonable efforts to take any and all actions necessary to obtain any consents or approvals under Foreign Investments Laws in connection with the Contemplated Transactions, to the extent necessary, and the Regulatory Approvals, and (iii) use its commercially reasonable efforts to take any and all actions necessary to obtain any other consents, clearances, or approvals required in order to eliminate impediments under applicable Laws asserted by any Governmental Body, including in respect of any Laws, order, injunction or decree by any Governmental Body of competent jurisdiction that may be in effect that prohibits, enjoins, restricts, prevents or makes illegal the consummation of the Contemplated Transactions, in each case, to cause the Merger to occur as promptly as possible (provided that this clause (iii) shall in no way include actions with respect to (x) Labor Consultations, (y) any Permit that the Company, as of the date of this Agreement, does not believe is required for the operation of the business of the Company and its Subsidiaries or (z) any Healthcare Laws, including (A) promptly complying with any required requests for additional information (including any second request or equivalent) by any Governmental Body, (B) if necessary to obtain clearance by any Governmental Body before the Outside Date, offering, negotiating, committing to, and effecting, by consent decree, hold separate order, or otherwise, the sale, divestiture, license, or other disposition of any and all of the capital stock, assets, equity holdings, rights, products, or businesses of Parent and its Subsidiaries (including the Surviving Corporation and its Subsidiaries) and any other restrictions on the activities of Parent and its Subsidiaries (including the Surviving Corporation and its Subsidiaries), and (C) contesting, defending, and appealing any threatened or pending preliminary or permanent injunction or other order, decree, or ruling or statute, rule, regulation, or executive order that would adversely affect the ability of any party hereto to consummate the Merger and taking such actions to prevent the entry, enactment, or promulgation thereof; provided, that Parent and its Subsidiaries will not be required to take any of the actions contemplated by the foregoing clauses (B) or (C) as a condition by any Governmental Body to obtaining any consent or approval under Foreign Investments Laws in connection with the Contemplated Transactions, to the extent necessary, or any Regulatory Approval in the event that such action contemplated by such clauses would reasonably be expected to result in a material adverse effect on the business, condition (financial or otherwise), assets, operations, or results of operations of Parent and its Subsidiaries (including the Surviving Corporation and its Subsidiaries), taken as a whole, following the Contemplated Transactions. Subject to the other provisions of this Agreement, including this Section 5.8, each party shall not, and shall cause each of its Subsidiaries to not, take, any action or omit to take any action that would reasonably be expected to materially delay or prevent clearance by any Governmental Body or to make clearance by any Governmental Body before the Outside Date less probable in any material respect. Parent shall bear the filing fees incurred in connection with any filings in connection with any consents or approvals under Antitrust Laws, Healthcare Laws or Foreign Investments Laws in connection with the Contemplated Transactions, to the extent necessary, and the Regulatory Approvals.

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(d) Without limiting the obligations in clauses (a), (b) and (c) of this Section 5.8, in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Body challenging the Merger, each of Parent, Merger Sub, and the Company shall cooperate in all respects with each other and shall use its commercially reasonable efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, decision, or other order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger.

(e) Prior to the Effective Time, each party hereto shall use commercially reasonable efforts to deliver any notices to or obtain any consents, approvals, or waivers of third parties with respect to any Contracts to which it is a party as may be necessary for the consummation of the Contemplated Transactions or required by the terms of any Contract as a result of the execution, performance or consummation of the Contemplated Transactions; provided that in no event will Parent, Merger Sub, the Company or any of their respective Subsidiaries be required to pay, prior to the Effective Time, any fee, penalty, or other consideration or make any other accommodation to any third party to obtain any consent, approval or waiver required with respect to any such Contract. Notwithstanding the foregoing, except as required by applicable Law or an applicable Labor Agreement, the Company shall not consult with any Union regarding the Contemplated Transactions without obtaining Parent’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed).

Section 5.9. Public Announcements. Parent and the Company agree to jointly issue press releases announcing this Agreement and the consummation of the Mergers. The Company shall not, and shall cause each of its Subsidiaries not to, and Topco shall not, and shall cause each of its Subsidiaries not to, and each shall direct their respective legal counsel, financial advisors and agents serving in such capacities not to and shall not authorize or permit their respective other Representatives to, issue any press release or announcement concerning the Contemplated Transactions without the prior consent of the other party, except any release or announcement required by applicable Law (including in connection with the making of any filings or notifications required under or in order to obtain the Regulatory Approvals in connection with the Contemplated Transactions) or any rule or regulation of OTC or any stock exchange to which the relevant party hereto is subject, in which case the party required to make the release or announcement shall use commercially reasonable efforts to allow each other party reasonable time to comment on such release or announcement in advance of such issuance and shall consider in good faith the comments of each such other party therein. The restrictions of this Section 5.9 do not apply to (i) communications by any party hereto or its Representatives in connection with, or following, an Acquisition Proposal or a Change of Board Recommendation or (ii) any press release or announcement made by a party hereto to the extent that such press release or announcement is consistent with any press release or announcement previously made in compliance with this Section 5.9, so long as any such press release or announcement remains true and correct in all material respects and no party hereto has requested in writing that the other parties hereto discontinue the use or public communication of such press release or announcement. Notwithstanding the foregoing, Parent, Merger Sub, and their respective Affiliates may provide ordinary course communications regarding this Agreement and the Contemplated Transactions to existing or prospective general and limited partners, equity holders, members, managers and investors of any Affiliates of such Person, in each case, who are subject to customary confidentiality restrictions.

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Section 5.10. Conduct of Topco, Parent and Merger Sub.

(a) Subject to the other provisions of this Agreement, including Section 5.8, between the date of this Agreement and the earlier of the Effective Time and the date, if any, on which this Agreement is validly terminated in accordance with the terms herein, Topco (i) shall not, and shall cause each of its Subsidiaries not to, take any action or fail to take any action with the primary intent of (x) causing any of the conditions to the Merger not being satisfied or (y) preventing, materially delaying, or materially impeding the ability of Topco, Parent and Merger Sub to consummate the Merger or the other Contemplated Transactions or the other SLR Financing Agreements to which Topco or any of its Subsidiaries are a party and (ii) shall, and shall cause each of its Subsidiaries to, perform its respective obligations pursuant to this Agreement and to consummate the Merger upon the terms and subject to the conditions set forth in this Agreement. Topco, Parent and Merger Sub will be jointly and severally liable for the failure by either of them to perform and discharge any of their respective covenants, agreements and obligations pursuant to this Agreement.

(b) Parent shall, immediately following execution of this Agreement, adopt this Agreement in its capacity as sole stockholder of Merger Sub in accordance with applicable Law and the certificate of incorporation and bylaws of Merger Sub.

(c) Prior to the earlier to occur of the Effective Time and the termination of this Agreement in accordance with its terms, Topco shall, and shall cause its respective Subsidiaries and Affiliates to, use commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper, or advisable under applicable Laws to consummate the SLR Rollover Contribution pursuant to and in accordance with the provisions of the SLR Rollover Agreement. Notwithstanding anything to the contrary in the SLR Rollover Agreement, as a condition and inducement to the Company’s willingness to enter into this Agreement, the other Transaction Documents and the SLR Financing Agreements to which the Company a party, the Company is and shall be an express third-party beneficiary of the SLR Rollover Agreement solely for purposes of causing Topco and its Subsidiaries to cause the consummation of the SLR Rollover Contribution (and, subject to the terms and conditions of the SLR Rollover Agreement, the Rollover Closing) pursuant to and in accordance with Section 2.1 and Section 2.2 of the SLR Rollover Agreement, and the Company shall be entitled to enforce those provisions of the SLR Rollover Agreement, including pursuant to Section 9 of the SLR Rollover Agreement, to cause Topco and its Subsidiaries to cause the consummation of the SLR Rollover Contribution (and, subject to the terms and conditions of the SLR Rollover Agreement, the Rollover Closing) pursuant to and in accordance with Section 2.1 and Section 2.2 and the other provisions of the SLR Rollover Agreement, as if the Company were a direct party thereto.

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Section 5.11. No Control of the Company’s Business. Nothing contained in this Agreement gives Topco, Parent or Merger Sub, directly or indirectly, the right to control or direct the Company’s or any of its Subsidiaries’ operations prior to the Effective Time; provided, the foregoing shall not relieve the Company or its Subsidiaries from their obligations under this Agreement or any other Transaction Document. Prior to the Effective Time, the Company shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ respective operations.

Section 5.12. Operations of Merger Sub. Prior to the Effective Time, Merger Sub shall not engage in any other business activities and shall not incur any liabilities or obligations other than as contemplated herein.

Section 5.13. Ownership of Company Securities. Prior to the Effective Time, except as expressly contemplated by the Rollover Agreements or the Support Agreements entered into on the date hereof (copies of which have been provided to the Company), any Company RSU Rollover Agreement, Company RSU Rollover Agreement or Company Stock Option Rollover Agreement, in each case, entered into on the date hereof (copies of which have been provided to the Company) or, following the date of this Agreement, the Additional Rollover Agreements pursuant to Parent’s and its Affiliates’ compliance with Section 5.24, Topco and Parent shall not, and shall cause each of their respective Subsidiaries to not, without the prior written consent of the Company, acquire (directly or indirectly, beneficially or of record) any Company Common Stock, or any securities, contracts or obligations convertible into or exercisable or exchangeable for shares of Company Common Stock. Without the prior written consent of the Company, none of Topco, Parent, Merger Sub or their respective Affiliates shall hold any rights to acquire any Company Common Stock except pursuant to this Agreement or expressly contemplated by the Rollover Agreements or Support Agreements entered into on the date hereof (copies of which have been provided to the Company), any Company RSU Rollover Agreement, Company RSU Rollover Agreement or Company Stock Option Rollover Agreement, in each case, entered into on the date hereof (copies of which have been provided to the Company) or, following the date of this Agreement, the Additional Rollover Agreements pursuant to Section 5.24. Notwithstanding anything to the contrary contained herein, the prohibitions set forth in this Section 5.13 shall not apply to any investment in any securities of the Company by or on behalf of any pension or employee benefit plan or trust, including (a) any direct or indirect interests in portfolio securities held by an investment company registered under the Investment Company Act of 1940, as amended, or (b) interests in securities comprising part of a mutual fund or broad based, publicly traded market basket, or index of stocks approved for such a plan or trust in which such plan or trust invests and, in all cases, over which Topco, Parent, Merger Sub or their respective Subsidiaries exercise no investment discretion and provided such beneficial ownership does not result in an obligation by Topco, Parent, Merger Sub or their respective Subsidiaries to file or amend a Schedule 13D pursuant to the Exchange Act.

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Section 5.14. Stockholder Litigation. The Company shall promptly notify Parent of Actions instituted against the Company, its Subsidiaries or any of its or their directors or officers relating to this Agreement, the other Transaction Documents or the SLR Financing Agreements to which the Company is a party or the Contemplated Transactions (“Stockholder Litigation”), including by providing Parent with copies of all pleadings, filings and other material documents with respect to such Stockholder Litigation, and shall keep Parent reasonably informed on a reasonably prompt basis with respect to the status of such Stockholder Litigation. Parent shall have the right to participate in the defense, settlement and prosecution of any such Stockholder Litigation, the Company shall consult with Parent regarding the defense, settlement and prosecution of any such Stockholder Litigation, and the Company shall not, and shall cause its Subsidiaries and its and their directors or officers not to, settle or compromise, or agree or commit to settle or compromise, any Stockholder Litigation, or consent or agree to the entry of any order, judgment, stipulation or decree with respect to any Stockholder Litigation, without the prior written consent of Parent.

Section 5.15. Financing. Subject to the terms and conditions of this Agreement, each of Parent and Merger Sub shall use its commercially reasonable efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary, advisable or proper to obtain the proceeds of the Equity Financing contemplated by the Equity Commitment Letter on or prior to the Closing Date on the terms and conditions described in the Equity Commitment Letter, including (a) maintaining in full force and effect the Equity Commitment Letter in accordance with the terms thereof and complying with its obligations thereunder and (b) satisfying on a timely basis all conditions to the funding of the Equity Financing set forth in the Equity Commitment Letter, if any, that are within Parent’s or Merger Sub’s control, in each case, no later than at the Closing (excluding conditions that, by their terms, cannot be satisfied until the Closing, but subject to the satisfaction or, to the extent permitted by applicable Law, waiver of such conditions at the Closing). In the event that all conditions contained in the Equity Commitment Letter have been satisfied, Parent and Merger Sub shall use commercially reasonable efforts to cause Parent Sponsor to comply with its obligations thereunder, including to fund the Equity Financing. Parent and Merger Sub shall keep the Company informed in reasonable detail of the status of its efforts to arrange the Equity Financing and any other financing upon the written request of the Company and shall give the Company prompt written notice of (i) any breach by any party to the Equity Commitment Letter of any material provision which Parent or Merger Sub has become aware or (ii) Parent’s or Merger Sub’s good faith belief, for any reason, that it may no longer be able to obtain all or any portion of the Equity Financing contemplated by the Equity Commitment Letter on the terms and conditions described therein.

Section 5.16. Further Assurances. The Company acknowledges and agrees, at and after the Effective Time, the officers and directors of the Surviving Corporation and Parent are authorized to execute and deliver, in the name and on behalf of the Company or Merger Sub, any deeds, bills of sale, assignments, or assurances and to take and do, in the name and on behalf of the Company, any of its Subsidiaries or Merger Sub, any other actions and things necessary or desirable to vest, perfect, or confirm of record or otherwise in the Surviving Corporation any and all right, title, interest and possession in, to and under any of the rights, properties, assets, privileges, powers, and franchises of the Company acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger.

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Section 5.17. State Takeover Laws. Subject to the representations and warranties set forth in Section 4.9 being true and accurate, the Company and the Company Board (or any duly empowered committee thereof, including the Special Committee) shall take all action within its power and authority necessary to ensure that no “fair price,” “business combination” or “control share acquisition” statute or other similar anti-takeover statute or regulation is or may become applicable to any of the Contemplated Transactions. If any “fair price,” “business combination” or “control share acquisition” statute or other similar anti-takeover statute or regulation is or may become applicable to any of the Contemplated Transactions, the parties hereto will take all such actions within their respective power and authority as are necessary to ensure that the Contemplated Transactions may be consummated as promptly as reasonably practicable on the terms contemplated by this Agreement and otherwise to minimize the effects of any such statute or regulation on such transactions.

Section 5.18. Director Resignations. Prior to the Effective Time, upon Parent’s request, the Company shall use commercially reasonable efforts to cause any director of the Company or any of its Subsidiaries, in each case and to the extent requested by Parent, to resign from his or her position as a director of the Company or any of its Subsidiaries effective as of, and conditioned upon the occurrence of, the Effective Time.

Section 5.19. FIRPTA Certificate. Unless not otherwise permitted by applicable Law, the Company shall deliver to Parent, at or prior to the Closing, a certificate and corresponding notice to the IRS and duly executed and acknowledged, satisfying the requirements of Treasury Regulation Sections 1.1445-2(c)(3) and 1.897-2(h)(2), as applicable.

Section 5.20. Notice of Certain Events. Each party hereto will deliver, as promptly as practicable thereafter, notice to the other parties hereto (a) of any breach of any covenant or agreement made by such party in this Agreement, if such breach is reasonably expected to result in the failure of a condition set forth in Article VI, (b) in the event that any representation or warranty of such party is inaccurate, becomes inaccurate after the date of this Agreement or would be inaccurate as of the Closing Date, in each case, if such inaccuracy is reasonably expected to result in the failure of a condition set forth in Article VI, (c) any change, effect, event, inaccuracy, occurrence, circumstance, condition, fact or state of facts or worsening thereof that has or would reasonably be expected to have a Company Material Adverse Effect or Parent Material Adverse Effect, as applicable, or (d) of receipt of a notice from any Person alleging that the consent of such Person is required in connection with the consummation of the Contemplated Transactions; provided that the delivery of any notice pursuant to this Section 5.20 shall not cure any breach or inaccuracy of any covenant, agreement, representation or warranty made by or of the notifying party or limit the remedies available to the parties receiving such notification; provided, further, that any failure to deliver the notice contemplated by this Section 5.20 shall not constitute or result in a breach of this Agreement or any provision hereof.

Section 5.21. Stock Exchange Delisting; Deregistration. Prior to the Effective Time, the Company shall cooperate with Parent and the Company shall use its commercially reasonable efforts to take, or cause to be taken, all actions, and do or cause to be done all things, necessary, proper or advisable on its part under applicable Laws and the rules and policies of the OTC and the SEC to cause the delisting of the Company and of the Shares from OTC as promptly as practicable after the Effective Time and the deregistration of the Shares under the Exchange Act as promptly as practicable after such delisting. The Company shall not cause the Shares to be delisted from OTC prior to the Effective Time.

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Section 5.22. Credit Agreement. On the Closing Date, provided, that the SLR Rollover Contribution will occur substantially concurrently with the Closing pursuant to and in accordance with the provisions of the SLR Rollover Agreement, and at the Closing (but immediately following both (a) the consummation of the Merger and (b) the making of the cash payments by Parent to the Surviving Corporation pursuant to Section 1.7), the Company shall (i) repay all Term B Loans in full pursuant to the terms of the Credit Agreement and the other Loan Documents, and (ii) subject to the Reimbursable Expenses Cap (and the Sub Caps) pursuant to Section 7.6, to the extent applicable, pay all Lenders’ Expenses (including, for the avoidance of doubt, costs and expenses (including reasonable attorneys’ fees, disbursements and expenses) of SLR (subject to the Reimbursable Expenses Cap and the Sub Caps pursuant to Section 7.6, to the extent applicable) in connection with this Agreement, the Credit Agreement, the other Loan Documents, the other Transaction Documents and the Contemplated Transactions), in each case that are unpaid and outstanding as of the Closing Date and in accordance with the terms of the Loan Documents (collectively, the “Credit Agreement Closing Payments”).

Section 5.23. Certain Other Tax Matters. Each of Topco, Parent, Merger Sub and the Company (a) after the Effective Time, shall use their commercially reasonable efforts to cause the Parent Sponsor Contribution, the SLR Rollover Contribution, each Stockholder Rollover Contribution, each Additional Rollover Contribution, if any, and each Additional Subscription, if any, taken together, to be treated consistently with the Intended Contribution Tax Treatment and (b) after the Effective Time, shall not take any position in any Tax Return or in any Tax proceeding that would be inconsistent with the Intended Tax Treatment, except to the extent otherwise required by Law or as otherwise required pursuant to a “determination” within the meaning of Section 1313(a) of the Code.

Section 5.24. Additional Rollover Agreements. Parent and Topco shall identify to the Company any potential Rollover Holders who Parent and Topco desire to enter into discussions with respect to entering into an Additional Rollover Agreement and shall consult with the Company in respect of such communications prior to reaching out to such potential Rollover Holders. Parent and Topco shall thereafter use commercially reasonable efforts to keep the Company reasonably informed of the status and terms of any Additional Rollover Agreements on a reasonably prompt basis, including in respect of the number of Shares, Company RSU Awards, Company PSU Awards or Company Stock Options, as applicable, intended to be subject to any Additional Rollover Agreements. Parent shall, and shall cause its Affiliates to, provide to the Company a reasonable opportunity to review and comment on the form of any Additional Rollover Agreement prior to an initial draft thereof being provided to, and prior to entry into any Additional Rollover Agreement with, any potential Rollover Holder, and Parent shall, and shall cause its Affiliates to, consider in good faith any such comments, and shall keep the Company reasonably informed of such negotiations.

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Section 5.25. Additional Subscriptions. The Company acknowledges and agrees that Parent and Topco may seek, prior to the Closing, to agree with one or more holders of shares of Company Common Stock that are reasonably acceptable to Parent and SLR that, immediately prior to the Effective Time, each such holder shall subscribe for Topco Series A Preferred Units with the same economic rights described in the SLR Rollover Agreement as the Topco Series A Preferred Units issued to Parent Sponsor and SLR and at a price per Topco Series A Preferred Unit equal to the Per Share Merger Consideration (the “Additional Subscriptions”) and in, furtherance of the foregoing, the Company will provide Parent and Topco with a list of such potential holders no later than five (5) Business Days following the date that the Company first disseminates the Proxy Statement to the Company stockholders; provided that (a) each such holder shall be an “accredited investor” (as such term is defined in Regulation D promulgated under the Securities Act), (b) the aggregate dollar value (such amount, the “Total Additional Subscription Amount”) of all Additional Subscriptions (and Topco Series A Preferred Units to be issued in connection with the Additional Subscriptions) shall not exceed $3,500,000 (the “Additional Subscription Cap”), and (c) all cash paid to Topco in connection with the Additional Subscriptions shall thereafter be contributed from Topco to Parent; provided, further, in the event that the Additional Subscription Cap exceeds the Total Additional Subscription Amount (such excess amount, the “Additional Subscription Balance”), Parent Sponsor will have the right to subscribe for an additional number of Topco Series A Preferred Units immediately prior to the Effective Time with an aggregate value equal to the Additional Subscription Balance. The Company agrees that, to the extent that Parent has identified to the Company in writing, at least ten (10) days prior to the Closing, the holders of shares of Company Common Stock with whom it intends to seek participation in the Additional Subscriptions as described above in this Section 5.25, the Company shall use commercially reasonable efforts to permit Topco and Parent to contact such holders directly, and reasonably facilitate discussions between such holders and Parent, Topco and SLR with respect thereto.

ARTICLE VI
CONDITIONS OF MERGER

Section 6.1. Conditions to Obligation of Each Party to Effect the Merger. The respective obligations of each party to effect the Merger are subject to the satisfaction or, to the extent permitted by applicable Law, waiver at or prior to the Effective Time of each of the following conditions:

(a) No Law, order, injunction, or decree will have been issued, enacted, entered, promulgated, or enforced (and still be in effect) by any Governmental Body of competent jurisdiction and is in effect that prohibits, enjoins, restricts, prevents or makes illegal the consummation of the Contemplated Transactions.

(b) The Company will have received the Requisite Stockholder Approval at the Company Stockholder Meeting.

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Section 6.2. Conditions to the Obligation of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to effect the Merger are subject to the satisfaction or, to the extent permitted by applicable Law, waiver by Parent and Merger Sub at or prior to the Effective Time of each of the following conditions:

(a) (i) The representations and warranties of the Company contained in this Agreement (other than the representations and warranties set forth in Section 3.1 (Organization and Corporate Power), Section 3.2 (Authorization; Valid and Binding Agreement), Section 3.3(a), (d) and (f) (Capital Stock), Section 3.9(a) (Absence of Certain Developments), Section 3.25 (Opinion), Section 3.26 (Anti-Take-Over Laws; No Rights Agreement) and Section 3.23 (Brokerage)) shall be true and correct as of the date of this Agreement and as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except where the failure of such representations and warranties to be true and correct (without giving effect to any qualification, limitation or exception as to “materiality” or “Company Material Adverse Effect”) has not had, individually or in the aggregate, a Company Material Adverse Effect, (ii) the representations and warranties set forth in Section 3.1 (Organization and Corporate Power), Section 3.2 (Authorization; Valid and Binding Agreement), Section 3.25 (Opinion), Section 3.26 (Anti-Take-Over Laws; No Rights Agreement) and Section 3.23 (Brokerage) shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct in all material respects, as of such earlier date), (iii) the representations and warranties set forth in Section 3.3(a), Section 3.3(d) and Section 3.3(f) (Capital Stock) shall be true and correct in all respects, except for de minimis inaccuracies, as of the date of this Agreement and as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct in all respects, except for de minimis inaccuracies, as of such earlier date), and (iv) the representation and warranty set forth in Section 3.9(a) (Absence of Certain Events) shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct).

(b) The Company shall have performed or complied in all material respects with all of the covenants and obligations of the Company under this Agreement required to be performed and complied with by it at or prior to the Closing.

(c) The Company shall have delivered to Parent a certificate dated as of the Closing Date signed on behalf of the Company by a senior executive officer of the Company, on behalf of the Company, to the effect that the conditions set forth in Section 6.2(a), Section 6.2(b) and Section 6.2(d) have been satisfied.

(d) Since the date of the Agreement, there has not occurred any change, event, occurrence or effect that, individually or in the aggregate, has had a Company Material Adverse Effect.

(e) As of the Closing Date, the SLR Financing Agreements (as in effect on the date hereof or as may be amended pursuant to the terms thereof) shall not have been revoked or terminated, or purported to be revoked or terminated, by the Company or any of its Subsidiaries.

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Section 6.3. Conditions to the Company’s Obligation to Effect the Merger. The obligations of the Company to effect the Merger are subject to the satisfaction or, to the extent permitted by applicable Law, waiver by the Company at or prior to the Effective Time of each of the following conditions:

(a) The representations and warranties of Topco, Parent and Merger Sub contained in this Agreement shall be true and correct as of the date of this Agreement and as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except where the failure of such representations and warranties to be true and correct (without giving effect to any qualification, limitation or exception as to “materiality” or “Parent Material Adverse Effect”) has not had, individually or in the aggregate, a Parent Material Adverse Effect.

(b) Topco, Parent and Merger Sub shall have performed or complied in all material respects with all of the covenants and obligations of Topco, Parent and Merger Sub, respectively, under this Agreement required to be performed and complied with by Topco, Parent and Merger Sub, respectively, at or prior to the Closing.

(c) Parent shall have delivered to the Company a certificate dated as of the Closing Date signed on behalf of Parent by a senior executive officer of Parent, on behalf of Parent, to the effect that the conditions set forth in Section 6.3(a) and Section 6.3(b) have been satisfied.

Section 6.4. Notice. Each of the Company and Parent shall notify the other party (email being sufficient) reasonably promptly following such time as the conditions set forth in Section 6.1, Section 6.2 and Section 6.3 are satisfied or, to the extent permitted by applicable Law, waived (other than conditions that, by their terms, cannot be satisfied until the Closing, but each of which is capable of being satisfied or, to the extent permitted by applicable Law, waived), and that such party is ready, willing and able to consummate the Closing on the date required by Section 1.2; provided, that such notice shall not affect, impair, alter or otherwise prejudice any of the rights or remedies that may be available to any party hereunder; provided, further that any failure to deliver a notice contemplated by this Section 6.4 shall not constitute or result in a breach of this Agreement or any provision hereof.

ARTICLE VII
TERMINATION, AMENDMENT AND WAIVER

Section 7.1. Termination by Mutual Agreement. This Agreement may be terminated, and the Merger may be abandoned, at any time prior to the Effective Time, by mutual written consent of Parent and the Company.

Section 7.2. Termination by Either Parent or the Company. This Agreement may be terminated, and the Merger may be abandoned, at any time prior to the Effective Time, by Parent or the Company if:

(a) any court of competent jurisdiction or other Governmental Body has issued a final order, decree, or ruling, or taken any other final action permanently restraining, enjoining, or otherwise prohibiting the Merger, and such order, decree, ruling, or other action has become final and non-appealable; provided, however, that the right to terminate this Agreement pursuant to this Section 7.2(a) will not be available to any party hereto if the issuance of such order, decree, ruling or other action was primarily caused by the failure of such party to perform any of its obligations under this Agreement, including Section 5.8;

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(b) the Effective Time has not occurred on or prior to December 31, 2024 (as such date may be extended pursuant to this Section 7.2(b), the “Outside Date”); provided, however, that (i) either Parent or the Company, by written notice to the other, may extend the Outside Date to 11:59 p.m., Eastern Time, on the date that is sixty (60) days following the Outside Date in the event that, as of the Outside Date, the condition set forth in Section 6.1(b) shall have not been satisfied, but all other conditions to Closing set forth in Article VI have been satisfied or waived (except for those conditions that by their nature are to be satisfied at the Closing, but each of which is capable of being satisfied at the Closing) or (ii) Parent and the Company may agree in writing to extend the Outside Date to any such later date as they mutually agree; provided, further, that the right to terminate this Agreement pursuant to this Section 7.2(b), will not be available to any party hereto whose failure to fulfill any of its obligations under this Agreement (including Section 5.8) has been the primary cause of the failure of the Effective Time to have occurred on or prior to the Outside Date; or

(c) the Company fails to obtain the Requisite Stockholder Approval at the Company Stockholder Meeting (or any adjournment or postponement thereof) at which a vote is taken on the Merger; provided, however, that the right to terminate this Agreement pursuant to this Section 7.2(c) will not be available to any party hereto whose failure to fulfill any of its obligations under this Agreement has been the primary cause of the failure to obtain the Requisite Stockholder Approval at the Company Stockholder Meeting (or any adjournment or postponement thereof) at which a vote is taken on the Merger.

Section 7.3. Termination by the Company. This Agreement may be terminated, and the Merger may be abandoned, by the Company:

(a) at any time prior to the Effective Time, if there has been a breach of any covenant or agreement made by Topco, Parent or Merger Sub in this Agreement, or any representation or warranty of Topco, Parent or Merger Sub is inaccurate or becomes inaccurate after the date of this Agreement, and such breach or inaccuracy would cause a failure of a condition set forth in Section 6.1 or Section 6.3 if the Closing were to occur at such time, and such breach or inaccuracy is not capable of being cured before the earlier of (i) the Outside Date and (ii) thirty (30) days following receipt by Topco, Parent or Merger Sub of written notice from the Company of such breach or inaccuracy or, if such breach or inaccuracy is capable of being cured within such period, it has not been cured within such period; provided, however, that the right to terminate this Agreement pursuant to this Section 7.3(a) will not be available to the Company if the Company is then in material breach of any of its representations, warranties, covenants or agreements under this Agreement as to cause or result in either of the conditions set forth in Section 6.2(a) or Section 6.2(b) not being satisfied;

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(b) at any time prior to the Company’s receipt of the Requisite Stockholder Approval, if the Company has received a Superior Proposal that was not the result of a material breach of Section 5.3(a), in order for the Company to enter into a definitive agreement with respect to such Superior Proposal to the extent permitted by, and subject to the applicable terms and conditions of Section 5.3; provided that, (i) prior to any such termination, the Company Board authorizes the Company to enter into an Alternative Acquisition Agreement and (ii) the Company pays or causes to be paid to Parent (or one or more of its designees) the Termination Fee pursuant to Section 7.5(b); or

(c) (i) the Closing shall not have occurred on or before the date required by Section 1.2, (ii) all of the conditions to Closing set forth in Section 6.1 and Section 6.2 have been satisfied (excluding conditions that, by their terms, cannot be satisfied until the Closing, but each of which is capable of being satisfied or, to the extent permitted by applicable Law and this Agreement, waived by the Company at the Closing), (iii) the Company has certified to Parent and Merger Sub by irrevocable written notice that if Parent performs its obligations under this Agreement and the Equity Financing is funded in accordance with the Equity Commitment Letter, then the Company is ready, willing and able to consummate and will consummate the Closing, (iv) the Company gives Parent and Merger Sub written notice at least three (3) Business Days prior to such termination stating the Company’s intention to terminate this Agreement pursuant to this Section 7.3(c), and (v) Parent and Merger Sub fail to consummate the Closing by the date required pursuant to Section 1.2.

Section 7.4. Termination by Parent. This Agreement may be terminated, and the Merger may be abandoned, by Parent if:

(a) at any time prior to the Effective Time, there has been a breach of any covenant or agreement made by the Company in this Agreement, or any representation or warranty of the Company is inaccurate or becomes inaccurate after the date of this Agreement, and such breach or inaccuracy would cause a failure of a condition set forth in Section 6.1 or Section 6.2 if the Closing were to occur at such time, and such breach or inaccuracy is not capable of being cured before the earlier of (i) the Outside Date and (ii) thirty (30) days following receipt by the Company of written notice from Parent of such breach or inaccuracy or, if such breach or inaccuracy is capable of being cured within such period, it has not been cured within such period; provided, however, that the right to terminate this Agreement pursuant to this Section 7.4(a) will not be available to Parent if Parent is then in material breach of any of its representations, warranties, covenants or agreements under this Agreement as to cause or result in either of the conditions set forth in Section 6.3(a) or Section 6.3(b) not being satisfied; or

(b) prior to the receipt of the Requisite Stockholder Approval, the Company Board or any committee (including the Special Committee) thereof effects a Change of Board Recommendation.

Section 7.5. Effect of Termination.

(a) In the event of any valid termination of this Agreement pursuant to this Article VII, this Agreement (other than Section 5.2(b), this Section 7.5, Section 7.6 and Article VIII, each of which will survive any termination hereof) will become void and of no effect with no liability on the part of any party (or of any of its Representatives); provided, however, that, except in a circumstance where the Termination Fee is paid pursuant to Section 7.5(b), no such termination will relieve any Person of any liability for damages resulting from Fraud or any material breach of this Agreement occurring prior to such termination that is a consequence of an act or omission intentionally undertaken by the breaching party with the knowledge that such act or omission would result in a material breach of this Agreement (an “Intentional Breach”); provided that, notwithstanding anything in this Agreement to the contrary (including, for clarity, anything set forth in this Section 7.5), in no event shall the Company Related Parties, on the one hand, or the Parent Related Parties, on the other hand, have any monetary liability or obligation under this Agreement in the event this Agreement is validly terminated pursuant to this Article VII for an aggregate amount greater than an amount equal to the sum of $1,000,000, plus, to the extent applicable, any Enforcement Expenses (the “Liability Limitation”).

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(b) In the event that:

(i) this Agreement is terminated by the Company pursuant to Section 7.3(b);

(ii) this Agreement is terminated by Parent pursuant to Section 7.4(b); or

(iii) (A) this Agreement is terminated by either Parent or the Company pursuant to Section 7.2(c), or by Parent pursuant to Section 7.4(a), (B) any Person has provided to the Company Board or publicly disclosed an Acquisition Proposal after the date of this Agreement and prior to such termination (unless publicly withdrawn prior to such termination (but whether or not publicly withdrawn prior to the date of the Company Stockholder Meeting, in the case of termination pursuant to Section 7.2(c))), and (C) within twelve (12) months after such termination, (i) the Company enters into an Alternative Acquisition Agreement with respect to an Acquisition Proposal or (ii) any Acquisition Proposal has been consummated; provided that for purposes of clause (C) of this Section 7.5(b)(iii), references to “20%” in the definition of Acquisition Proposal will be substituted for “50%”,

then, in any such case, subject to Section 7.5(f), the Company shall pay or cause to be paid to Parent a termination fee of $1,000,000 (the “Termination Fee”), by wire transfer of immediately available funds to the account or accounts designated by Parent. Any payment required to be made (1) pursuant to clause (i) of this Section 7.5(b), will be paid substantially concurrently with such termination (and as a condition to termination in the event of a termination by the Company), (2) pursuant to clause (ii) of this Section 7.5(b) will be paid no later than two (2) Business Days after such termination and (3) pursuant to clause (iii) of this Section 7.5(b) will be paid to Parent upon the earlier of (x) the consummation of any Acquisition Proposal or (y) entry into an Alternative Acquisition Agreement. The Company will not be required to pay the Termination Fee pursuant to this Section 7.5(b) more than once.

(c) In no event shall Parent be entitled to both specific performance in accordance with Section 8.13 that results in the occurrence of the Closing and the payment of the Termination Fee (or monetary damages). In no event shall the Company be entitled to both specific performance in accordance with Section 8.13 that results in the occurrence of the Closing and the payment of any monetary damages.

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(d) Notwithstanding anything to the contrary in this Agreement, (i) other than Parent’s injunctive, specific performance and equitable relief rights, Parent’s right to terminate this Agreement and receive payment of the Termination Fee (solely to the extent payable under Section 7.5(b)) (together with any Enforcement Expenses owed pursuant to Section 7.5(g)), from the Company shall be the sole and exclusive remedy (whether at law, in equity, in contract, in tort, or otherwise) of Topco, Parent, Merger Sub, Parent Sponsor or any other Parent Related Party against the Company and the Company Related Parties for any and all losses, liabilities and damages that may be suffered based upon, resulting from, arising out of, or relating to this Agreement, the other Transaction Documents and the Contemplated Transactions, including the breach of any representation, warranty, covenant, or agreement in this Agreement or any other Transaction Document or any representation or warranty in any certificate delivered pursuant to this Agreement or any other Transaction Document, the termination of this Agreement or any other Transaction Document, or the failure to consummate the Contemplated Transactions, and (ii) other than the payment of the Termination Fee to Parent by the Company if and when due (as well as any Enforcement Expenses owed pursuant to Section 7.5(g)), no Company Related Party shall have any further liability or obligation relating to or arising out of this Agreement, the other Transaction Documents or the Contemplated Transactions, including the breach of any representation, warranty, covenant, or agreement in this Agreement or any other Transaction Document or any representation or warranty in any certificate delivered pursuant to this Agreement or any other Transaction Document, the termination of this Agreement or any other Transaction Document, or failure to consummate the Contemplated Transactions.

(e) Notwithstanding anything to the contrary in this Agreement, but subject to the last sentence of this Section 7.5(e), if this Agreement is validly terminated by the Company pursuant to this Agreement, (i) the Company’s right to specific performance pursuant to Section 8.13 and the Company’s rights to seek monetary damages subject to the Liability Limitation will be the sole and exclusive remedies (whether at law, in equity, in contract, in tort, or otherwise) of the Company or any other Company Related Parties against Topco, Parent, Merger Sub, Parent Sponsor or any other Parent Related Parties in respect of this Agreement, the other Transaction Documents and SLR Financing Agreements to which Topco, Parent, Merger Sub or Parent Sponsor is a party and the Contemplated Transactions, including the breach of any representation, warranty, covenant, or agreement in this Agreement or any other Transaction Document and SLR Financing Agreement to which Topco, Parent, Merger Sub or Parent Sponsor is a party or any representation or warranty in any certificate delivered pursuant to this Agreement or any other Transaction Document and SLR Financing Agreement to which Topco, Parent, Merger Sub or Parent Sponsor is a party, the termination of this Agreement or any other Transaction Document and SLR Financing Agreement to which Topco, Parent, Merger Sub or Parent Sponsor is a party, or the failure to consummate the Contemplated Transactions, and (ii) subject to the Company’s right to specific performance to enforce any of the surviving provisions of this Agreement, including to enforce the Damages Commitment, none of the Parent Related Parties will have any further liability or obligation to any of the Company Related Parties or any other Person relating to or arising out of this Agreement, the other Transaction Documents and SLR Financing Agreements to which Topco, Parent, Merger Sub or Parent Sponsor is a party or the Contemplated Transactions, including the breach of any representation, warranty, covenant, or agreement in this Agreement or any other Transaction Document and SLR Financing Agreement to which Topco, Parent, Merger Sub or Parent Sponsor is a party or any representation or warranty in any certificate delivered pursuant to this Agreement or any other Transaction Document and SLR Financing Agreements to which Topco, Parent, Merger Sub or Parent Sponsor is a party, the termination of this Agreement or any other Transaction Document and SLR Financing Agreement to which Topco, Parent, Merger Sub or Parent Sponsor is a party, or failure to consummate the Contemplated Transactions, except that, in each case, Parent Sponsor will remain obligated, and the Company may be entitled to remedies, with respect to monetary damages subject to the Liability Limitation. Notwithstanding the foregoing, nothing contained in this Section 7.5 or elsewhere in this Agreement shall limit the remedies (1) of any party to this Agreement under the Confidentiality Agreement in accordance with its terms so long as it remains in effect or (2) or rights of the Company and the Company Related Parties pursuant to any SLR Financing Agreements against any counterparty thereto other than the Parent Related Parties.

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(f) After termination of this Agreement, (i) notwithstanding anything to the contrary set forth in this Section 7.5 or elsewhere in this Agreement, this Section 7.5 will not relieve, Topco, Parent or Merger Sub from any liability for any Fraud or Intentional Breach of this Agreement; provided that under no circumstances will the collective monetary damages payable by the Parent Related Parties, including for any Intentional Breach or Fraud under this Agreement, or any of the other Transaction Documents or the SLR Financing Agreements to which it is a party, or any of the Contemplated Transactions, exceed an amount equal to the Liability Limitation, (ii) notwithstanding anything to the contrary set forth in this Section 7.5 or elsewhere in this Agreement, in no event shall the Company have any liability, including for Fraud or Intentional Breach of this Agreement, following the payment of the Termination Fee (as well as any Enforcement Expenses owed pursuant to Section 7.5(g)) if and to the extent payable pursuant to Section 7.5(b), (iii) notwithstanding anything to the contrary set forth in this Section 7.5 or elsewhere in this Agreement, in no event shall the Company be required to pay both damages under this Agreement and the Termination Fee (as well as any Enforcement Expenses owed pursuant to Section 7.5(g)) and (iv) solely if and to the extent the Termination Fee is not owing or payable pursuant to Section 7.5(b), notwithstanding anything to the contrary set forth in this Section 7.5 or elsewhere in this Agreement, this Section 7.5 will not relieve the Company from any liability for any Fraud or Intentional Breach of this Agreement; provided that under no circumstances will the collective monetary damages payable by the Company Related Parties, including for any Intentional Breach or Fraud under this Agreement, any of the other Transaction Documents or SLR Financing Agreement to which it is a party, or any of the Contemplated Transactions, exceed an amount equal to the Liability Limitation. Notwithstanding the foregoing, nothing contained in this Section 7.5 (subject in all cases to the last sentence of this Section 7.5(f)) or elsewhere in this Agreement shall limit the remedies of any party to this Agreement under Section 8.13 or under the Confidentiality Agreement. In no event will the Company or any other Company Related Party, on the one hand, or Topco, Parent, Merger Sub, Parent Sponsor or any other Parent Related Party, on the other hand, be entitled to recover any monetary recovery or monetary award or damages (including consequential, special, indirect or punitive damages) against any Parent Related Party or Company Related Party, respectively, with respect to this Agreement, any other Transaction Document or SLR Financing Agreement to which it is a party or the Contemplated Transactions (including any breach by any Parent Related Party or Company Related Party), the termination of this Agreement, any other Transaction Document or SLR Financing Agreement to which it is a party, the failure to consummate the Contemplated Transactions thereby or any claims, proceedings or actions under applicable Laws arising out of any such breach, termination or failure (including in the event of an Intentional Breach or Fraud), other than to the extent expressly provided for in this Agreement and in an amount not to exceed the Liability Limitation. For the avoidance of doubt, (A) while the Company may pursue a grant of specific performance under Section 8.13 prior to termination of this Agreement and/or damages (subject to the limitations herein) following the termination of this Agreement, under no circumstances shall the Company be permitted or entitled to receive from Parent both a grant of specific performance in accordance with Section 8.13 that results in the occurrence of the Closing and the funding of the Equity Financing and payment of the Merger Consideration, on the one hand, and be awarded any monetary damages, on the other hand, and (B) while Parent may pursue a grant of specific performance under Section 8.13 prior to termination of this Agreement and/or the payment of the Termination Fee (if and to the extent payable pursuant to Section 7.5(b)) or damages (subject to the limitations herein) under this Section 7.5 following the termination of this Agreement if the Termination Fee is not payable pursuant to Section 7.5(b), under no circumstances shall Topco, Parent or Merger Sub be permitted or entitled to receive from the Company (1) both a grant of specific performance in accordance with Section 8.13 that results in the occurrence of the Closing, on the one hand, and payment of monetary damages or all or a portion of the Termination Fee (or any other monetary damages) (subject to the limitations herein), on the other hand or (2) both payment of any monetary damages (subject to the limitations herein), on the one hand, and payment of the Termination Fee, on the other hand. Notwithstanding the foregoing, nothing contained in this Section 7.5 or elsewhere in this Agreement shall limit the remedies of any party to this Agreement under the Confidentiality Agreement in accordance with its terms so long as it remains in effect or the rights of the Company and the Company Related Parties pursuant to any SLR Financing Agreements with any counterparty thereto other than Topco, Parent, Merger Sub or Parent Sponsor. Notwithstanding anything to the contrary in this Section 7.5, nothing contained in this Section 7.5 or elsewhere in this Agreement shall limit the remedies or rights of the Company and the Company Related Parties pursuant to any SLR Financing Agreements against any counterparty thereto other than the Parent Related Parties.

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(g) Each of the Company and Parent acknowledges that the agreements contained in Section 7.5 are an integral part of the Contemplated Transactions, and that, without these agreements, Parent, Merger Sub and the Company would not have entered into this Agreement. Accordingly, if either (i) the Company fails to promptly pay the Termination Fee due pursuant to Section 7.5(b) when due, on the one hand, or any monetary damages (subject to the limitations herein), when due, on the other hand, and in order to obtain such payment, Parent or Merger Sub commences a suit that results in a judgment against the Company for the amount set forth in Section 7.5(b), or (ii) Parent fails to promptly pay any monetary damages (subject to the limitations herein) when due, and in order to obtain such payment, the Company commences a suit that results in a judgment against Parent pursuant to this Section 7.5, then in the case of clause (i), the Company shall pay to Parent, or, in the case of clause (ii), Parent shall pay to the Company, as applicable, the reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) of the other party to this Agreement in connection with such suit, together with interest on such amount or portion thereof at the prime rate as published in the Wall Street Journal in effect on the date such payment was required to be made, plus five (5%) percent through the date such payment or portion thereof is actually received, or a lesser rate that is expressly permitted by applicable Law, in an amount not to exceed $200,000 (collectively, “Enforcement Expenses”).

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Section 7.6. Expenses. Except as otherwise specifically provided herein, each party shall bear its own expenses in connection with this Agreement and the Contemplated Transactions; provided that, solely in the event that the Closing occurs, the Surviving Corporation will pay all costs and expenses (including reasonable fees, disbursements and expenses of legal or financial advisors or agents serving in a similar capacity) incurred by Parent Sponsor, Topco, Parent, Merger Sub and SLR, in connection with this Agreement, the SLR Financing Agreements, the other Transaction Documents, the Contemplated Transactions and the transactions contemplated by the other SLR Financing Agreements, in each case that are unpaid and outstanding as of the Closing Date (collectively, the “Counterparty Transaction Expenses”)); provided, however, that, subject to the terms of the Loan Documents, (a) any Counterparty Transaction Expenses that constitute legal fees, disbursements and expenses payable by the Company pursuant to the immediately preceding proviso, and (b) any payment obligations in respect of the Company’s or any of its Subsidiaries’ legal fees, disbursements and expenses or financial advisor fees, disbursements and expenses incurred in connection with the Contemplated Transactions and the SLR Financing Agreements, in the case of each of clauses (a) and (b) excluding any legal fees, disbursements and expenses relating to Actions brought by stockholders of the Company in connection with the Contemplated Transactions and the SLR Financing Agreements, shall not exceed $10,000,000 in the aggregate (such aggregate amount, the “Reimbursable Expense Cap” and such legal fees, disbursements and expenses described in the immediately preceding clauses (a) and (b), collectively, “Transaction Advisor Costs”) and, to the extent such aggregate Transaction Advisor Costs exceed the Reimbursable Expense Cap, (i) Parent Sponsor, Topco, Parent and Merger Sub will, collectively, be reimbursed in respect of their Transaction Advisor Costs for an amount not to exceed $1,500,000 (the “Parent Reimbursement Cap”), (ii) SLR will be reimbursed in respect of its Transaction Advisor Costs for an amount not to exceed $3,500,000 (the “SLR Reimbursement Cap”), (iii) the Company will be reimbursed in respect of its Transaction Advisor Costs for an amount not to exceed $4,500,000 (the “Company Reimbursement Cap” and together with the Parent Reimbursement Cap and the SLR Reimbursement Cap, the “Sub Caps”), and (iv) the Surviving Corporation will pay any remaining Transaction Advisor Costs using cash on its balance sheet following the Effective Time.

Section 7.7. Amendment and Waiver. Subject to applicable Law and the other provisions of this Agreement, this Agreement may be amended by the parties hereto at any time by the execution of an instrument in writing signed by each of the parties hereto, except that in the event the Company has received the Requisite Stockholder Approval, no amendment may be made to this Agreement that requires the approval of the Company’s stockholders pursuant to the DGCL without such approval. At any time prior to the Effective Time, the Company, on the one hand, and Parent and Merger Sub, on the other hand, may (a) extend the time for the performance of any of the obligations or other acts of the other, (b) waive any inaccuracies in the representations and warranties of the other contained herein or in any document delivered pursuant hereto and (c) subject to the requirements of applicable Law, waive compliance by the other with any of the agreements or conditions contained herein. Any such extension or waiver will be valid only if set forth in an instrument in writing signed by the party or parties to be bound thereby. The failure of any party to assert any rights or remedies will not constitute a waiver of such rights or remedies.

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ARTICLE VIII
GENERAL PROVISIONS

Section 8.1. Non-Survival of Representations, Warranties, Covenants and Agreements. None of the representations, warranties, covenants and agreements in this Agreement or in any instrument delivered pursuant to this Agreement, including any rights arising out of any breach of such representations, warranties, covenants and agreements, will survive the Effective Time, except for (a) those covenants and agreements contained herein that by their terms apply or are to be performed in whole or in part after the Effective Time and (b) this Article VIII. The Confidentiality Agreement will survive termination of this Agreement in accordance with its terms.

Section 8.2. Notices. All notices, requests, claims, demands and other communications hereunder must be in writing and must be given (and will be deemed to have been duly given): (a) when delivered, if delivered in Person, (b) when sent, if sent by email (provided that no “bounce back” or other notice of non-delivery is generated), (c) three (3) Business Days after sending, if sent by registered or certified mail (postage prepaid, return receipt requested) and (d) one (1) Business Day after sending, if sent by overnight courier, in each case, to the respective parties at the following addresses (or at such other address for a party as have been specified by like notice):

(i) if to Parent or Merger Sub:

c/o Perceptive Advisors, LLC

51 Astor Place, 10^th Floor

New York, NY 10003

Attention: James Mannix

Email: james@perceptivelife.com

with an additional copy (which will not constitute notice) to:

Cooley LLP

500 Boylston Street, 14^th Floor

Boston, MA 02116-3736

Attention: Eric Blanchard

Amelia Runyan Davis

Email: eblanchard@cooley.com;

arunyandavis@cooley.com

(ii) if to the Company:

Vapotherm, Inc.

100 Domain Drive

Exeter, NH 03833

Attention: Joseph Army

James Lightman

John Landry

Email: jarmy@vtherm.com

jlightman@vtherm.com

jlandry@vtherm.com

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with an additional copy (which will not constitute notice) to:

Ropes & Gray LLP

1211 Avenue of the Americas

New York, NY 10036

Attention: Paul Kinsella

Sarah Young

Email: paul.kinsella@ropesgray.com

sarah.young@ropesgray.com

Section 8.3. Certain Definitions. For purposes of this Agreement the term:

“2014 Warrant” means a Warrant to Purchase Stock issued by the Company pursuant to the Loan and Security Agreement, dated as of June 10, 2014, between Comerica Bank and the Company.

“2015 Warrant” means a Warrant to Purchase Stock issued by the Company pursuant to the Loan and Security Agreement, dated as of July 28, 2014, between Comerica Bank and the Company.

“2022 PIK Warrant” means a Warrant to Purchase Stock issued by the Company in connection with the Credit Agreement, as amended, restated, amended and restated or otherwise modified from time to time, including for the avoidance of doubt, by the SLR Warrant Amendment Agreement.

“2022 Warrant” means the Second Amended and Restated Warrant to Purchase Stock issued by the Company in connection with the Credit Agreement, as amended, restated, amended and restated or otherwise modified from time to time, including for the avoidance of doubt, by the SLR Warrant Amendment Agreement.

“2023 Pre-Funded Warrant” means a pre-funded Warrant to Purchase Stock issued by the Company pursuant to the Securities Purchase Agreement, dated as of February 7, 2023, among the Company and the Purchasers party thereto.

“2023 Warrant” means a Warrant to Purchase Stock issued by the Company pursuant to the Securities Purchase Agreement, dated as of February 7, 2023, among the Company and the Purchasers party thereto.

“Acquisition Proposal” means any offer or proposal relating to any transaction or series of transactions (a) made or renewed by a Person or group (other than Topco, Parent or Merger Sub) that is structured to permit such Person or group to, directly or indirectly, (i) acquire beneficial ownership of twenty percent (20%) or more of the total Shares of the Company, (ii) acquire assets constituting or accounting for twenty percent (20%) or more of the consolidated total assets or twenty percent (20%) or more of the consolidated revenue or net income of the Company and its Subsidiaries, or (b) that results in the stockholders of the Company immediately prior to such transaction ceasing to own at least 80% of the total voting power of the Company or the surviving entity (or any direct or indirect parent company thereof), as applicable, immediately following such transaction, in each case, whether pursuant to a merger, consolidation, or other business combination, sale of shares of capital stock, sale of assets, tender offer, recapitalization, exchange offer or similar transaction, including any single or multi-step transaction or series of related transactions, in each case, other than the Merger.

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“Action” means a cause of action, claim, litigation, audit, examination, mediation, action, suit, arbitration, proceeding, investigation or other legal proceeding.

“Additional Rollover Agreements” means any additional agreements among Parent, Topco and one or more individual holders of shares of Company Common Stock; provided that all or a portion of any such holder’s shares of Company Common Stock (“Additional Rollover Shares”) shall not be treated as converted into the right to receive the Per Share Merger Consideration pursuant to Section 2.1, but shall instead, immediately prior to the Effective Time, be contributed to Topco in exchange for an equal number of Topco Common Units (if any) (such Contribution, a “Additional Rollover Contribution”), and such Company Common Stock shall thereafter be contributed from Topco to Parent.

“Additional Rollover Contribution” has the meaning set forth in the definition of “Additional Rollover Agreements.”

“Additional Subscriptions” has the meaning set forth in Section 5.25.

“Additional Subscription Balance” has the meaning set forth in Section 5.25.

“Additional Subscription Cap” has the meaning set forth in Section 5.25.

“Affiliate” of any particular Person means any other Person controlling, controlled by or under common control with such particular Person; provided that no portfolio company of any investment fund affiliated with Parent Sponsor shall be considered an Affiliate of Parent. For the purposes of this definition, “controlling,” “controlled” and “control” mean the possession, directly or indirectly, of the power to direct the management and policies of a Person whether through the ownership of voting securities, contract or otherwise.

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

“Alternative Acquisition Agreement” has the meaning set forth in Section 5.3(d).

“Antitrust Laws” means the Sherman Act, the Clayton Act, the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, the Federal Trade Commission Act, and all other applicable Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or significant impediments or lessening of competition through merger or acquisition.

“Anti-Corruption Laws” means (a) the U.S. Foreign Corrupt Practices Act of 1977, as amended, (b) the UK Bribery Act of 2010, and (c) any other applicable law, rule, regulation, or order relating to bribery or corruption (governmental or commercial).

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“Anti-Money Laundering Laws” means Laws of any jurisdiction in which the Company or its Subsidiaries is incorporated or does business relating to money laundering, including financial recordkeeping and reporting requirements.

“Book-Entry Share” has the meaning set forth Section 2.8(d).

“Business Day” means a day (other than Saturday or Sunday) on which banks are open in New York, New York.

“Certificate” has the meaning set forth in Section 2.8(b).

“Certificate of Merger” has the meaning set forth in Section 1.2.

“Change of Board Recommendation” means (a) the withholding, withdrawal, amendment, qualification or modification, or public proposal to withhold, withdraw, amend, qualify or modify, the Company Board Recommendation, in each case, in a manner adverse to Parent or Merger Sub, (b) the failure by the Company, within ten (10) Business Days of the commencement of a tender or exchange offer for Shares that constitutes an Acquisition Proposal by a Person other than Parent or any of its Affiliates, to file a Schedule 14D-9 pursuant to Rule 14e-2 and Rule 14d-9 promulgated under the Exchange Act recommending that the holders of the Shares reject such Acquisition Proposal and not tender any Shares into such tender or exchange offer, (c) the failure by the Company to include the Company Board Recommendation in the Proxy Statement when mailed to the Company’s Stockholders, (d) the failure by the Company Board or a committee thereof to publicly reaffirm the Company Board Recommendation within five (5) Business Days of receiving a written request from Parent (or, if the Company Stockholder Meeting is to occur within five (5) Business Days after the request, as promptly as practicable after such request) to provide such public reaffirmation following receipt by the Company of a publicly announced Acquisition Proposal; provided that Parent may deliver only two (2) such requests with respect to any Acquisition Proposal, (e) the adoption or approval by the Company of any Acquisition Proposal or (f) the Company Board’s public announcement of an intention to effect any of the foregoing.

“Closing” has the meaning set forth in Section 1.2.

“Closing Date” has the meaning set forth in Section 1.2.

“Closing Payment Commitment” shall have the meaning ascribed to such term in the Equity Commitment Letter.

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

“Comerica Warrants” means the 2014 Warrants and the 2015 Warrants.

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

“Company Balance Sheet Date” has the meaning set forth in Section 3.8.

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

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“Company Board Recommendation” has the meaning set forth in the Recitals.

“Company Common Stock” has the meaning set forth in Section 2.1(a).

“Company Disclosure Letter” has the meaning set forth in Article III.

“Company Equity Awards” means, collectively, Company Stock Options, Company RSU Awards and Company PSU Awards.

“Company Equity Plans” means, collectively, the Company’s 2005 Stock Incentive Plan, the Company’s 2015 Stock Incentive Plan and the Company’s Amended and Restated 2018 Equity Incentive Plan, in each case, as amended, restated, amended and restated or otherwise modified from time to time.

“Company ESPP” means the Company’s 2018 Employee Stock Purchase Plan.

“Company Executive” means an individual listed on Section 8.3 of the Company Disclosure Letter and who hold outstanding Company Stock Options and/or Company RSU Awards as of immediately prior to the Closing.

“Company Leased Property” has the meaning set forth in Section 3.11(b).

“Company Material Adverse Effect” means any change, effect, event, inaccuracy, occurrence, circumstance, condition, fact or state of facts or other matter that, individually or in the aggregate, (x) has or would reasonably be expected to have a material adverse effect on the business, condition (financial or otherwise), assets, liabilities, operations, or results of operations of the Company and its Subsidiaries, taken as a whole, or (y) would, or would reasonably be expected to, prevent, materially delay or materially impair the ability of the Company to consummate the transactions contemplated by this Agreement; provided, however, that for purposes of the immediately preceding clause (x) only, any changes, effects, events, inaccuracies, occurrences, circumstances, conditions, facts or states of facts or other matters resulting or arising from or in connection with any of the following will not be deemed to constitute a Company Material Adverse Effect, either alone or in combination, and will be disregarded in determining whether a Company Material Adverse Effect has occurred: (a) matters generally affecting the U.S. or foreign economies, financial or securities markets, or political, legislative, or regulatory conditions, or the industry in which the Company and its Subsidiaries operate, including changes in inflation, supply chain disruptions and labor shortages, except to the extent such matters have, or would reasonably be expected to have, a materially disproportionate adverse effect on the Company and its Subsidiaries, taken as a whole, relative to the impact on other similarly situated companies in the industry in which the Company and its Subsidiaries operate; (b) the negotiation, execution, announcement or pendency of this Agreement or the Contemplated Transactions, including (to the extent arising therefrom) any loss or change in relationship with any supplier, vendor, reseller, customer, distributor, lender, employee, investor, venture partner or other business partner of the Company or its Subsidiaries (provided that this exception shall not apply to any representation or warranty contained in Section 3.5, including for the purposes of determining whether the condition set forth in Section 6.2(a) has been satisfied with respect to the representations and warranties contained in Section 3.5); (c) any change in the market price or trading volume of the Shares (provided that this exception will not preclude a determination that a matter underlying such change has resulted in or contributed to a Company Material Adverse Effect unless excluded by another clause); (d) the occurrence, escalation, outbreak or worsening of hostilities, acts or threats of war or terrorism; (e) the occurrence, escalation, outbreak or worsening of cyberattacks and cyberterrorism; (f) any plagues, pandemics (including COVID-19), Health Measures or any escalation or worsening or subsequent waves thereof, epidemics or other outbreaks of diseases or public health events, nuclear incident, weather conditions or other natural or man-made disaster or other force majeure event (including hurricanes, tsunamis, floods, volcanic eruptions and earthquakes), except to the extent such matters described in the immediately preceding clauses (d) through (f) have, or would reasonably be expected to have, a materially disproportionate adverse effect on the Company and its Subsidiaries, taken as a whole, relative to the impact on other similarly situated companies in the industry in which the Company and its Subsidiaries operate; (g) changes in Laws, regulations, or accounting principles, or interpretations thereof, except to the extent such matters have, or would reasonably be expected to have, a materially disproportionate adverse effect on the Company and its Subsidiaries, taken as a whole, relative to the impact on other similarly situated companies in the industry in which the Company and its Subsidiaries operate; (h) compliance with the covenants expressly set forth herein or any action taken or omitted to be taken by the Company at the express written request or with the prior written consent of Parent or Merger Sub; (i) the initiation or settlement of any legal proceedings commencing or involving any (A) Government Body in connection with this Agreement or the Contemplated Transactions or (B) any current or former holder of Shares (on their own or on behalf of the Company) arising out of or related to this Agreement or the Contemplated Transactions); (j) any failure by the Company to meet any internal or analyst projections or forecasts or estimates of revenues, earnings, or other financial metrics for any period on or after the date of this Agreement (provided that this exception (j) will not preclude a determination that a matter underlying such failure has resulted in or contributed to a Company Material Adverse Effect unless excluded under another clause); or (k) any Event of Default (as defined in the Credit Agreement) under the Credit Agreement.

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“Company Material Contract” has the meaning set forth in Section 3.13(a).

“Company Organizational Documents” has the meaning set forth in Section 3.1.

“Company Out-of-the-Money Option” means any Company Stock Option that has an exercise price per share of Company Common Stock that is greater than or equal to the Per Share Merger Consideration.

“Company Permit” means any Permit necessary for the lawful operation of the business of the Company and its Subsidiaries.

“Company Plan” means a Plan that the Company or any of its Subsidiaries sponsors, maintains, contributes to, is obligated to contribute to, in each case, for the benefit of any current or former officer, director, employee or individual service provider or director of the Company or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has any Liability; provided, however, that Company Plan will not include any Plan that is solely sponsored or maintained by a Governmental Body or maintained for the benefit of current or former officers, directors, employees or individual independent contractors of the Company or any of its Subsidiaries who are primarily located in a jurisdiction other than the U.S. if the benefits provided thereunder are required to be provided by statute. For clarity, “Company Plans” includes the Company Equity Plans and the Company ESPP.

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“Company Preferred Stock” has the meaning set forth in Section 3.3.

“Company Product” has the meaning set forth in Section 3.20.

“Company PSU Award” means an award of performance stock units granted under a Company Equity Plan that is subject to performance-based vesting conditions.

“Company PSU Consideration” has the meaning set forth in Section 2.2(b)(ii).

“Company PSU Rollover Agreements” has the meaning set forth in Section 2.2(b)(ii).

“Company Real Property” has the meaning set forth in Section 3.11(b).

“Company Registered Intellectual Property” has the meaning set forth in Section 3.14(a).

“Company Reimbursement Cap” has the meaning set forth in Section 7.6.

“Company Related Party” means the Company or any of the Company’s former, current and future Affiliates, shareholders, assignees, controlling persons, directors, officers, employees, agents, attorneys, partners, members, managers, general or limited partners or Representatives.

“Company RSU Award” means an award of restricted stock units granted under a Company Equity Plan (other than a Company PSU Award).

“Company RSU Consideration” has the meaning set forth in Section 2.2(a)(i).

“Company RSU Rollover Agreements” has the meaning set forth in Section 2.2(a)(ii).

“Company SEC Documents” has the meaning set forth in Section 3.7(a).

“Company Share Consideration” means an amount equal to the aggregate Per Share Merger Consideration payable in respect of Shares pursuant to Section 2.1(a).

“Company Stock Option” shall mean each option to purchase Shares granted under a Company Equity Plan (but not, for the avoidance of doubt, the Company ESPP).

“Company Stock Option Consideration” has the meaning set forth in Section 2.2(c)(ii).

“Company Stock Option Rollover Agreements” has the meaning set forth in Section 2.2(c)(ii).

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“Company Stockholder Meeting” has the meaning set forth in Section 5.5(a).

“Company Systems” means all of the following used or otherwise relied on by the Company or any of its Subsidiaries: computers (including servers, workstations, desktops, laptops and handheld devices), software, applications, websites, hardware, networks, firmware, middleware, routers, hubs, switches, data communications lines, data storage devices, data centers, systems and other information technology equipment and assets.

“Confidential Information” has the meaning set forth in Section 5.2(b).

“Confidentiality Agreement” means that certain letter agreement regarding confidentiality, by and between Parent Sponsor and the Company, dated February 28, 2022 (as amended or waived).

“Contemplated Transactions” means each of the transactions contemplated by this Agreement and the other Transaction Documents.

“Contract” means any written, oral or other agreement, contract, subcontract, lease, sub-lease, occupancy agreement, binding understanding, obligation, promise, instrument, indenture, mortgage, note, option, warranty, purchase order, license, sublicense, commitment or undertaking of any nature, which, in each case, is legally binding upon a party or on any of its Affiliates.

“Contributed SLR Loan Receivables” has the meaning set forth in the Recitals.

“Contributor” has the meaning set forth in Section 3.14(g).

“Copyrights” means all works of authorship (whether or not copyrightable) and all copyrights (whether or not registered), including all registrations thereof and applications therefor, and all renewals, extensions, restorations and reversions of the foregoing.

“COVID-19” means SARS-CoV-2 or COVID-19 and any evolution thereof or related or associated epidemics, pandemics or disease outbreaks.

“Credit Agreement” means the Loan and Security Agreement, dated as of February 18, 2022, among SLR Investment Corp., as Collateral Agent, and the Lenders party thereto from time to time, the Company, as Borrower, and HGE Health Care Solutions, LLC, Vapotherm Access Care Management Network, LLC, Vapotherm Access Management Services, LLC, as Guarantors, and each other guarantor party thereto from time to time, as amended, restated, amended and restated or otherwise modified from time to time, including for the avoidance of doubt, by the SLR Financing Agreements.

“Credit Agreement Closing Payments” has the meaning set forth in Section 5.22.

“Current Employees” has the meaning set forth in Section 5.6(a).

“Damages Commitment” means the “Damages Commitment” as set forth in the Equity Commitment Letter.

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“Data Security Breach” means any (a) breach of security, phishing incident, ransomware or malware attack, or other incident affecting any Company Systems, or (b) incident in which confidential information or Personal Information was accessed, disclosed, processed, used or exfiltrated in an unauthorized manner.

“Determination Notice” means any notice delivered by the Company to Parent pursuant to Section 5.3(e)(i), Section 5.3(e)(ii) or Section 5.3(e)(iii).

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

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

“Equity Award Consideration” has the meaning set forth in Section 2.2(d).

“Equity Commitment Letter” has the meaning set forth in the Recitals.

“Equity Financing” has the meaning set forth in Section 4.14(a).

“Effective Time” has the meaning set forth in Section 1.2.

“Enforceability Exceptions” has the meaning set forth in Section 3.2.

“Enforcement Expenses” has the meaning set forth in Section 7.5(g).

“Environmental Laws” means all Laws concerning pollution or protection of the environment or natural resources or human health and safety (in regard to exposure to Hazardous Substances), as such of the foregoing are promulgated and in effect on or prior to the Closing Date.

“ERISA” has the meaning set forth in Section 3.17(c).

“ERISA Affiliate” means any corporation or other trade or business (whether or not incorporated) which is treated as a single employer with the Company under Section 414(b) or (c) of the Code.

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

“Exclusive Intellectual Property” means all Intellectual Property that is or has been licensed exclusively to the Company or any of its Subsidiaries, as of the date of this Agreement.

“FDA” has the meaning set forth in Section 3.28(c).

“FDA Application Integrity Policy” has the meaning set forth in Section 3.28(d).

“Finance Leases” means all obligations for finance leases (determined in accordance with GAAP).

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“Foreign Investment Laws” means all Laws that are designed to regulate transactions involving foreign investments including any Laws that provide for review of national security matters.

“Fraud” means any common law fraud under Delaware Law (and not a constructive fraud or negligent misrepresentation or omission) by a Person in making the representations and warranties set forth in Article III or Article IV of this Agreement, as applicable, or any certificate delivered pursuant to Section 6.2(c) or Section 6.3(c).

“GAAP” means U.S. generally accepted accounting principles, consistently applied, as in effect on the date of this Agreement.

“Global Trade Laws” means the Sanctions, export, customs, and anti-boycott Laws of any jurisdiction in which the Company or its Subsidiaries is incorporated or does business, including without limitation (a) the Export Administration Regulations administered by the U.S. Commerce Department’s Bureau of Industry and Security, (b) the International Traffic in Arms Regulations administered by the U.S. State Department’s Directorate of Defense Trade Controls, (c) the import laws administered by U.S. Customs and Border Protection, (d) the economic sanctions rules and regulations administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”), (e) European Union (“EU”) regulations on export controls and sanctions, (f) United Nations sanctions policies and (g) all relevant regulations made under any of the foregoing.

“Government Bid” means any quotation, offer, bid or proposal by the Company or any of its Subsidiaries that, if accepted or awarded, would result in or lead to a Government Contract.

“Government Contract” means any contract including any prime contract, subcontract, grant, cooperative agreement, subaward, basic ordering agreement, blanket purchase agreement, other transaction agreement, purchase order, task order, delivery order, and including all amendments, modifications, and options thereunder, awarded (A) to the Company, any of its Subsidiaries, or any joint venture in which the Company or any of its Subsidiaries has an interest, by any Governmental Body or by a prime contractor or higher-tier subcontractor to a Governmental Body, or (B) by or between the Company or any of its Subsidiaries, to a subcontractor at any tier in connection with an agreement related to the foregoing clause (A).

“Governmental Body” means any federal, state, provincial, local, municipal, foreign, international, multinational or other governmental or quasi-governmental authority of competent jurisdiction, including, any arbitrator or arbitral body, mediator and applicable securities exchanges, any non-governmental self-regulatory agency, commission or authority of competent jurisdiction, or any department, minister, agency, commission, commissioner, board, subdivision, bureau, agency, instrumentality, court or other tribunal of any of the foregoing, and any entity to whom a Governmental Body has assigned or delegated any authority or oversight responsibilities, including, but not limited to, any notified body accredited, designated, licensed, authorized or approved to assess and certify the conformity of a medical device with the requirements of the Medical Devices Directive 93/42/EEC, the Medical Devices Regulation (EU) 2017/745.

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“Hazardous Substance” means any waste, material, chemical, or substance defined or regulated as a “hazardous substance,” “hazardous material,” “hazardous waste,” “toxic chemical,” “pollutant” or terms of similar import under, or for which Liability or standards of conduct are imposed pursuant to, any Environmental Laws, including petroleum products or byproducts, per- and polyfluoroalkyl substances, polychlorinated biphenyls, radioactive materials, toxic mold, and asbestos or asbestos-containing materials.

“Healthcare Laws” means all applicable federal, state, foreign or local health care laws, each as amended, relating to the regulation of the Company, including: the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq.; Title XVIII of the Social Security Act, 42 U.S.C. §§ 1395-1395lll (the Medicare statute); Title XIX of the Social Security Act, 42 U.S.C. §§ 1396-1396w-5 (the Medicaid statute); the federal Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(b); the criminal false statements law, 42 U.S.C. § 1320a-7b(a); the False Claims Act, 31 U.S.C. §§ 3729-3733; the Program Fraud Civil Remedies Act, 31 U.S.C. §§ 3801-3812; the Anti-Kickback Act of 1986, 41 U.S.C. §§ 51-58; the Civil Monetary Penalties Law, 42 U.S.C. §§ 1320a-7a; the Exclusions Law, 42 U.S.C. § 1320a 7; Physician Payments Sunshine Act, 42 U.S.C. § 1320a-7h; any criminal laws relating to healthcare fraud and abuse, including but not limited to 18 U.S.C. Sections 286, 287, 1035, 1347 and 1349; the Health Insurance Portability and Accountability Act, 42 U.S.C. §§ 1320d et seq., as amended by the Health Information Technology for Economic and Clinical Health Act, 42 U.S.C. §§ 17921 et seq. (collectively, “HIPAA”), Laws related to any Regulatory Permits, all other Laws related to any government funded or sponsored healthcare programs and all applicable implementing regulations, rules, ordinances and orders related to any of the foregoing.

“Health Measures” means any quarantine, “shelter in place,” “stay at home,” social distancing, shut down, closure, sequester, safety or similar laws, directives or restrictions of or promulgated by any Governmental Body, including the Centers for Disease Control and Prevention and the World Health Organization, taken, in each case, in connection with or in response to COVID-19.

“Indebtedness” means, with respect to any Person, without duplication: (a) the principal, accreted value, accrued and unpaid interest, fees and prepayment premiums or penalties, unpaid fees or expenses and other monetary obligations in respect of (i) indebtedness of such Person for borrowed money and (ii) indebtedness evidenced by notes, debentures, bonds, or other similar instruments for the payment of which such Person is liable, (b) all obligations of such Person issued or assumed as the deferred purchase price of property (other than trade payables or accruals incurred in the ordinary course of business and other than payments due under license agreements), including any earn-out or similar contingent payment obligations, (c) all obligations of such Person in respect of letters of credit and bankers’ acceptances, surety and performance bonds that have been drawn down, in each case, to the extent of such draw, (d) all obligations of such Person under Finance Leases, (e) all obligations of such Person pursuant to securitization or factoring programs or arrangements, (f) all obligations arising out of interest rate and currency swap arrangements and any other arrangements designed to provide protection against fluctuations in interest or currency rats, (g) all obligations of the type referred to in clauses (a) through (f) of any Persons for the payment of which such Person is responsible or liable, directly or indirectly, as obligor, guarantor, surety or otherwise, including guarantees of such obligations (but solely to the extent of such responsibility or liability) and (h) all obligations of the type referred to in clauses (a) through (g) of other Persons secured by (or for which the holder of such obligations has an existing right, contingent or otherwise, to be secured by) any Lien on any property or asset of such Person (whether or not such obligation is assumed by such Person); provided that, if such Person has not assumed such obligations, then the amount of Indebtedness of such Person for purposes of this clause (h) will be equal to the lesser of the amount of the obligations of the holder of such obligations and the fair market value of the assets of such Person which secure such obligations.

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“Indemnified Party” has the meaning set forth in Section 5.7(b).

“Intellectual Property” means all of the following, including all rights in, arising out of, or associated therewith: (a) Trademarks; (b) Patents; (c) Trade Secrets; (d) Copyrights and (e) all other intellectual property rights, whether registered or unregistered, with respect to (a)-(e), in any jurisdiction worldwide.

“Intended Contribution Tax Treatment” has the meaning set forth in the Recitals.

“Intended SLR Loan Tax Treatment” has the meaning set forth in the Recitals.

“Intended Tax Treatment” has the meaning set forth in the Recitals.

“Intentional Breach” has the meaning set forth in Section 7.5(a).

“Intervening Event” means any positive change, effect, event, circumstance, occurrence, or other matter that affects the business, assets or operations of the Company (other than any change, effect, event, circumstance, occurrence or other matter (x) primarily resulting from a breach of this Agreement by the Company or (y) primarily relating to the announcement or pendency of, or any actions required to be taken by the Company (or to be refrained from being taken by the Company) pursuant to, this Agreement) and that was not known to or reasonably foreseen by the Company Board or any committee thereof on the date of this Agreement (or, if known, the consequences of which were not known to or reasonably foreseen by the Company Board or any committee thereof as of the date of this Agreement), which change, effect, event, circumstance, occurrence, or other matter, or any consequence thereof, becomes known to the Company Board or any committee thereof after the date hereof and prior to receipt of the Requisite Stockholder Approval; provided, however, that in no event will any of the following constitute an Intervening Event or be taken into account in determining whether an Intervening Event has occurred: (a) any Acquisition Proposal or any inquiry, offer, or proposal that constitutes or would reasonably be expected to lead to an Acquisition Proposal, (b) any change, in and of itself, in the price of the Company Common Stock (however, the underlying reasons for such changes may constitute an Intervening Event to the extent not otherwise excluded by this definition) or (c) the fact, in and of itself, that the Company meets or exceeds any internal or published projections, estimates or expectation of the Company’s revenue, earnings or other financial performance or results of operations for any period (however, the underlying reasons for such events may constitute an Intervening Event to the extent not otherwise excluded by this definition).

“IP Contracts” means all Contracts in force as of the date of this Agreement, to which the Company or any of its Subsidiaries is a party, and under which (a) the Company or any of its Subsidiaries has obtained from or granted to any third party any license or (b) the Company or its Subsidiaries is expressly restricted from using, in each case (a) and (b) of this definition, any Intellectual Property that is material to the continued operation of the business of the Company or its Subsidiaries, as of the date of this Agreement, except for Off-the-Shelf Software.

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“IRS” means the United States Internal Revenue Service.

“Knowledge” of Parent or the Company, as applicable, means the actual knowledge of such Person’s chief executive officer, chief financial officer, chief accounting officer and general counsel, in each case, after reasonable inquiry of such Person’s direct reports.

“Labor Agreement” has the meaning set forth in Section 3.19(a).

“Labor Consultations” has the meaning set forth in Section 5.6(c).

“Labor Organization” has the meaning set forth in Section 5.6(c).

“Law” means any foreign or U.S. federal, state, municipal or local law (including common law), treaty, statute, code, judgment, order, ordinance, Permit, rule, regulation, or other requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any Governmental Body (or under the authority of OTC), and, for the sake of clarity, includes Environmental Laws.

“Lenders’ Expenses” shall have the meaning ascribed to such term in the Credit Agreement.

“Liability” means, with respect to any Person, any liability or obligation of that Person of any kind, character or description, whether known or unknown, absolute or contingent, accrued or unaccrued, asserted or unasserted, disputed or undisputed, liquidated or unliquidated, secured or unsecured, joint or several, due or to become due, vested or unvested, executory, determined, determinable or otherwise, and whether or not the same is required to be accrued on the financial statements of that Person in accordance with GAAP.

“Liability Limitation” has the meaning set forth in Section 7.5(a).

“Liens” means any lien, mortgage, security interest, pledge, encumbrance, deed of trust, security interest, claim, charge, option, preemptive right, subscription right, easement, servitude, proxy, voting trust or agreement, transfer restriction under any shareholder or similar agreement, covenant, condition, restriction, purchase option, right of first offer, right of first refusal, encroachment, or similar encumbrance or restriction.

“Loan Documents” shall have the meaning ascribed to such term in the Credit Agreement.

“Maximum Tail Premium” has the meaning set forth in Section 5.7(c).

“Measurement Date” has the meaning set forth in Section 3.3(a).

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

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“Merger Sub” has the meaning set forth in the Preamble.

“New Plans” has the meaning set forth is Section 5.6(b).

“Non-Party Affiliates” has the meaning set forth in Section 8.15(b).

“Non-U.S. Plan” has the meaning set forth in Section 3.17(k).

“Notice Period” means the period beginning at 5:00 p.m. Eastern Time on the day of delivery by the Company to Parent of a Determination Notice (even if such Determination Notice is delivered after 5:00 p.m. Eastern Time) and ending on the fourth (4th) Business Day thereafter at 5:00 p.m. Eastern Time; provided that, with respect to any amendment to any material terms of any Superior Proposal, or any material change to the facts and circumstances relating to any Intervening Event, as applicable, the Notice Period will extend until 5:00 p.m. Eastern Time on the second (2nd) Business Day after delivery of such revised Determination Notice.

“NYSE” means The New York Stock Exchange.

“Off-the-Shelf Software” means software, other than open source software, obtained from a third party (a) on general commercial terms and that continues to be widely available on such commercial terms and (b) that has a total replacement cost of less than $50,000.

“Old Plans” has the meaning set forth is Section 5.6(b).

“Outside Date” has the meaning set forth in Section 7.2(b).

“Owned Intellectual Property” means all Intellectual Property that is owned or purported to be owned (exclusively or jointly) by the Company or its Subsidiaries, as of the date of this Agreement.

“OTC” means the OTC Markets Group.

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

“Parent Material Adverse Effect” means any change, effect, event, inaccuracy, occurrence, or other matter that has a material adverse effect on the ability of Topco, Parent or Merger Sub to timely perform its obligations under this Agreement or to timely consummate the Contemplated Transactions or would, or would reasonably be expected to, prevent, materially delay or materially impair the ability of the Topco Parent or Merger Sub to consummate the transactions contemplated by this Agreement.

“Parent Reimbursement Cap” has the meaning set forth in Section 7.6.

“Parent Related Party” means Parent, Merger Sub, the Parent Sponsor, Topco and any of its or their Affiliates or any of its or their respective former, current or future shareholders, assignees, controlling persons, directors, officers, employees, agents, attorneys, partners, members, managers, general or limited partners or Representatives. For the avoidance of doubt, “Parent Related Party” shall not include SLR or any of its Affiliates.

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“Parent Sponsor” has the meaning set forth in the Recitals.

“Parent Sponsor Contribution” has the meaning set forth in the Recitals.

“Parent Sponsor Contribution Agreement” has the meaning set forth in the Recitals.

“Patents” means issued patents (including issued utility and design patents), and any pending patent applications, including any divisionals, provisionals, revisions, continuations, continuations-in-part, reissues, re-examinations, substitutions, extensions and renewals thereof.

“Paying Agent” has the meaning set forth in Section 2.8(a).

“Paying Agent Agreement” means the Paying Agent Agreement, in a form to be mutually acceptable to Parent and the Company, to be entered into between Parent, the Company and the Paying Agent prior to the Closing Date.

“Permits” means all approvals, authorizations, certificates, consents, licenses, orders and permits and other similar authorizations of all Governmental Bodies and all other Persons.

“Permitted Liens” means (a) statutory Liens for Taxes or other governmental charges not yet due and payable or the amount or validity of which is being contested in good faith by appropriate proceedings and for which appropriate reserves are established in the financial statements in accordance with GAAP, (b) mechanics’, carriers’, workers’, repairers’, contractors’, subcontractors’, suppliers’ and similar statutory Liens arising or incurred in the ordinary course of business in respect of the construction, maintenance, repair or operation of assets which are being contested in good faith by appropriate proceedings and for which appropriate reserves are established in the financial statements in accordance with GAAP for amounts that are not delinquent and that are not, individually or in the aggregate, material, (c) zoning, entitlement, building and other land use regulations imposed by governmental agencies having jurisdiction over the Company Real Property which are not violated by the current use or occupancy of such Company Real Property or the operation of the Company’s business thereon, (d) covenants, conditions, restrictions, easements and other similar matters of record affecting title to the Company Real Property that do not, individually or in the aggregate, materially detract from the value or impair the occupancy, marketability or use of such Company Real Property for the purposes for which it is currently used or proposed to be used in connection with the Company’s business, (e) Liens arising under workers’ compensation, unemployment insurance and social security arising or incurred in the ordinary course of business, (f) Liens arising or incurred in the ordinary course of business in connection with purchase money security interests for personal property and or securing rental payments under Finance Leases, (g) Liens arising or incurred in the ordinary course of business in connection from funds advanced under a supplier development funding agreement, (h) Liens arising under the Credit Agreement, (i) those matters identified in the Permitted Liens Section of the Company Disclosure Letter, as applicable, and (j) any Liens that are not material to the Company and its Subsidiaries or Parent and its Subsidiaries, as applicable, taken as a whole.

“Per Share Merger Consideration” has the meaning set forth in Section 2.1(a).

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“Person” means an individual, a partnership, a corporation, a limited liability company, an unlimited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, any other entity, a governmental entity or any department, agency or political subdivision thereof.

“Personal Information” means data and information concerning an identifiable natural person or that otherwise constitutes “personal information” or “personal data” under applicable Privacy Laws.

“Plan” means an “employee benefit plan” within the meaning of Section 3(3) of ERISA and any other compensation or benefit plan, program, policy, arrangement or agreement, whether written or unwritten, funded or unfunded, subject to ERISA or not and covering one or more Persons, including, any stock purchase, stock option, restricted stock, other equity-based, phantom equity, severance, separation, retention, employment, individual consulting, change in control, bonus, incentive, deferred compensation, pension, retirement, supplemental retirement, health, dental, vision, disability, life insurance, death benefit, vacation, paid time off, leave of absence, employee assistance, tuition assistance or other fringe benefit plan, program, policy, arrangement or agreement.

“Pre-Closing Period” has the meaning set forth in Section 5.1(a).

“Privacy Laws” mean foreign or domestic Laws relating to privacy and/or data security of Personal Information.

“Privacy Policies” has the meaning set forth in Section 3.21.

“Proxy Statement” has the meaning set forth in Section 5.4(a).

“Reference Date” means January 1, 2021.

“Regulatory Approvals” means any consents or approvals required under applicable Healthcare Laws in connection with the Contemplated Transactions.

“Regulatory Authority” has the meaning set forth in Section 3.28(a).

“Regulatory Permits” has the meaning set forth in Section 3.28(a).

“Reimbursable Expense Cap” has the meaning set forth in Section 7.6.

“Representative” means the officers, employees, Affiliates, direct and indirect equityholders, accountants, consultants, legal counsel, financial advisors, investors, financing sources and agents and other representatives of a party.

“Requisite Stockholder Approval” has the meaning set forth in Section 3.2.

“Rollover Agreements” means, collectively, the SLR Rollover Agreement, the Stockholder Rollover Agreements, the Company RSU Rollover Agreements (if any), the Company PSU Rollover Agreements (if any), the Company Stock Option Rollover Agreements (if any) and the Additional Rollover Agreements (if any).

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“Rollover Closing” shall have the meaning ascribed to such term in the SLR Rollover Agreement.

“Rollover Company PSU Consideration” has the meaning set forth in Section 2.2(b)(ii).

“Rollover Company RSU Consideration” has the meaning set forth in Section 2.2(a)(ii).

“Rollover Company Stock Option Consideration” has the meaning set forth in Section 2.2(c)(ii).

“Rollover Holder” means each holder of Company Common Stock, a Company RSU Award, a Company PSU Award or Company Stock Options who is entering into a Rollover Agreement (other than, for the avoidance of doubt, SLR and its Affiliates).

“Rollover Shares” means the shares of Company Common Stock contributed to Topco under the Stockholder Rollover Agreements and the Additional Rollover Agreements (if any).

“Safety Notices” has the meaning set forth in Section 3.29(c).

“Sanctioned Country” means any country or region that is the target or subject of comprehensive, territorial-based Sanctions (at the time of this Agreement, Cuba, Iran, North Korea, Syria, and the Crimea, so-called Donetsk People’s Republic, and so-called Luhansk People’s Republic regions of Ukraine).

“Sanctioned Person” means any Person that is the target of Sanctions, including (a) any Person identified in any sanctions list maintained by the U.S. government (including through OFAC or the U.S. Department of State) the United Nations Security Council, the EU or any EU member state, the United Kingdom, or any jurisdiction in which the Company or its Subsidiaries is incorporated or does business; (b) any Person located, organized, or resident in, or a government instrumentality of, any Sanctioned Country; and (c) any Person directly or indirectly majority owned or controlled by or acting for the benefit or on behalf of a Person described in clauses (a) or (b).

“Sanctions” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by the U.S. government (including through OFAC or the U.S. Department of State), the United Nations Security Council, the EU or any EU member state, the United Kingdom, or any jurisdiction in which the Company or its Subsidiaries is incorporated or does business.

“Sarbanes-Oxley” has the meaning set forth in Section 3.10(d).

“Schedule 13E-3” has the meaning set forth in Section 3.6.

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

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

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

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

“SLR” means SLR Investor Corp. or any of its Affiliates.

“SLR Financing Agreements” means, collectively, the SLR Warrant Amendment Agreement, the SLR Rollover Agreement, that certain Fifth Amended and Restated Fee Letter, dated as of the date hereof among the Company, the other Loan Parties party thereto, the Lenders party thereto and SLR, as “Collateral Agent” and that certain Amendment No. 8 to Loan and Security Agreement, dated as of the date hereof among the Company, the other Loan Parties party thereto, the Lenders party thereto and SLR, as “Collateral Agent”, in each case, which is attached hereto as Exhibit F.

“SLR Rollover Agreement” has the meaning set forth in the Recitals.

“SLR Rollover Contribution” has the meaning set forth in the Recitals.

“SLR Warrants” means, collectively, the 2022 PIK Warrants and the 2022 Warrants, as may be amended from time to time.

“SLR Warrant Amendment Agreement” has the meaning set forth in the Recitals.

“Special Committee” the meaning set forth in the Recitals.

“Stockholder Litigation” has the meaning set forth in Section 5.14.

“Stockholder Rollover Agreement” has the meaning set forth in the Recitals.

“Stockholder Rollover Contribution” has the meaning set forth in the Recitals.

“Studies” has the meaning set forth in Section 3.29(b).

“Sub Cap” has the meaning set forth in Section 7.6.

“Submissions” has the meaning set forth in Section 3.28(b).

“Subsidiary” means, with respect to any Person, any corporation, partnership, association, limited liability company, unlimited liability company or other business entity of which (a) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof or (b) if a partnership, association, limited liability company, or other business entity, a majority of the partnership or other similar ownership interests thereof is at the time owned or controlled, directly or indirectly, by any Person or one or more Subsidiaries of that Person or a combination thereof. For purposes hereof, a Person or Persons will be deemed to have a majority ownership interest in a partnership, association, limited liability company or other business entity if such Person or Persons are allocated a majority of partnership, association, limited liability company or other business entity gains or losses or otherwise control the managing director, managing member, general partner or other managing Person of such partnership, association, limited liability company or other business entity.

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“Superior Proposal” means a bona fide written Acquisition Proposal made after the date of this Agreement by any Person that did not result from a material breach of Section 5.3(a) (except the references in the definition thereof to “twenty percent (20%)” will be replaced by “fifty percent (50%)”) that the Company Board or a committee (including the Special Committee or an alternative special committee of the Company Board consisting of independent directors) thereof has determined, in its good faith judgment, after consultation with its outside legal counsel and financial advisors, would result in a transaction more favorable to the Company’s stockholders (solely in their capacity as such) from a financial point of view than the transactions contemplated by this Agreement, taking into account (i) all changes to the terms of this Agreement and the other Transaction Documents that Parent irrevocably committed to make during the Notice Period pursuant to Section 5.3, (ii) all legal, regulatory and financial terms of such proposal, including the financing terms thereof, (iii) the likelihood of consummation (including certainty of closing) of such proposal on the terms proposed, including with respect to the certainty of any financing, (iv) the timing of such proposal, including the likelihood of closing in a timely manner, (v) the identity of the Person making the Acquisition Proposal, (vi) the ability of such third-party to consummate the Acquisition Proposal on the terms proposed, and (vii) all other terms or circumstances of such Acquisition Proposal.

“Support Agreement” has the meaning set forth in the Recitals.

“Surviving Corporation” has the meaning set forth in Section 1.1.

“Tax” or “Taxes” means any and all U.S. federal, state or local, or non-U.S. income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, environmental, customs duties, capital stock, franchise, profits, withholding, social security (including FICA), unemployment, disability, real property, personal property, sales, use, transfer, registration, value-added, alternative or add-on minimum, or other tax, duty, levy, custom of any kind in the nature of (or similar to) taxes, including any interest, penalty, or addition thereto.

“Tax Return” means any return, report, election, designation, information return or other document (including schedules or any attachments thereto and any amendments thereof) filed or required to be filed with any Governmental Body or other authority in connection with the determination, assessment or collection of any Tax.

“Term B Loan” shall have the meaning ascribed to such term in the Credit Agreement.

“Termination Fee” has the meaning set forth in Section 7.5(b).

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

“Topco Common Units” has the meaning set forth in the Recitals.

“Topco Series A Preferred Units” has the meaning set forth in the Recitals.

“Total Additional Subscription Amount” has the meaning set forth in Section 5.25.

“Total Merger Consideration” means an amount equal to the sum of, without duplication, the aggregate amount of Company Share Consideration, the 2023 Pre-Funded Warrant Consideration and the aggregate Equity Award Consideration.

“Trademarks” means trademarks, service marks, corporate names, trade names, brand names, product names, logos, slogans, trade dress and other indicia of source or origin, any applications and registrations for the foregoing and the renewals thereof, and all goodwill associated therewith and symbolized thereby.

“Trade Secrets” means any and all proprietary or confidential information that derives economic value from not being generally known, including know-how, customer, distributor, consumer and supplier lists and data, pricing information, research and development information, processes, formulae, methods, formulations, discoveries, specifications, designs, algorithms, plans, improvements, models and methodologies, that, in each derive economic value from not being generally known.

“Transaction Advisor Costs” has the meaning set forth in Section 7.6.

“Transaction Documents” means, collectively, this Agreement, the Rollover Agreements, the Support Agreements, the SLR Warrant Amendment Agreement, the Equity Commitment Letter and the Paying Agent Agreement.

“Transfer Taxes” means and sales, transfer, stamp, stock transfer, documentary, registration, value added, use, real property transfer and any similar Taxes and fees.

“Treasury Regulations” means the Treasury regulations promulgated under the Code.

“Union” means any union, works council, labor organization or other employee representative body.

“Warrants” means, collectively, the Comerica Warrants, the SLR Warrants, the 2023 Pre-Funded Warrants and the 2023 Warrants.

“WARN” has the meaning set forth in Section 3.19(b).

Section 8.4. Severability. If any term or other provision of this Agreement is invalid, illegal, or incapable of being enforced by any rule of law or public policy, the remaining provisions of this Agreement will be enforced so as to conform to the original intent of the parties as closely as possible in a mutually acceptable manner so that the Contemplated Transactions are fulfilled to the fullest extent possible.

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Section 8.5. Assignment. This Agreement may not be assigned by operation of law or otherwise without the prior written consent of each of the other parties, except that Parent or Merger Sub may assign, in whole or in part (a) its rights and obligations under this Agreement to any of its Affiliates and (b) after the Effective Time, its rights and obligations under this Agreement to any Person; provided that, in the case of either (a) or (b), such assignment shall not relieve Parent or Merger Sub of its obligations hereunder, or enlarge, alter or change any obligation of any other party.

Section 8.6. Entire Agreement; Third-Party Beneficiaries.

(a) This Agreement, together with the exhibits, annexes, and instruments referred to herein, including the Company Disclosure Letter, the Transaction Documents, the SLR Financing Documents to which the parties hereto are party to and the Confidentiality Agreement shall constitute the entire agreement and shall supersede all prior agreements and understandings, both written and oral, among the parties hereto with respect to the subject matter hereof; provided, however, that the Confidentiality Agreement will survive the execution or termination of this Agreement and will remain in full force and effect. Except for (a) if the Closing occurs, at and after the Effective Time, the rights of the holders of Shares to receive the Company Share Consideration and the rights of holders of Company Equity Awards to receive the Equity Award Consideration, (b) as provided in Section 5.7 (which is intended for the benefit of each Indemnified Party, all of whom will be third-party beneficiaries of these provisions), (c) as provided in Section 8.15 (which is intended for the benefit of each Non-Party Affiliate, all of whom will be third-party beneficiary of these provisions), (d) the rights of the Parent Related Parties and the Company Related Parties expressly provided thereto under this Agreement, this Agreement is not intended to confer upon any Person other than the parties hereto any rights, benefits or remedies of any nature whatsoever and (e) the right of the Company on behalf of the Company’s stockholders to pursue damages (including claims for damages based on loss of the economic benefits of the Contemplated Transactions to the Company’s stockholders) (subject to the Liability Limitation) in the event of Topco’s, Parent’s or Merger Sub’s failure to effect the Merger as required by this Agreement, which right is hereby expressly acknowledged and agreed by each of Topco, Parent and Merger Sub, each of whom shall each be jointly and severally liable for any such damages for which Topco, Parent or Merger Sub are found liable. The third-party beneficiary rights referenced in clause (e) of the immediately preceding sentence may be exercised only by the Company (on behalf of the Company’s stockholders as their agent) through actions expressly approved by the Company Board (or any committee thereof, including the Special Committee), in each case, subject to the Liability Limitation, and no Company stockholder, whether purporting to act in its capacity as a stockholder or purporting to assert any right (derivatively or otherwise) on behalf of the Company, shall have any right or ability to exercise or cause the exercise of any such right. The exceptions and other information in the Company Disclosure Letter represent “facts ascertainable” as that term is used in Section 251(b) of the DGCL, and do not form part of this Agreement but instead operate upon the terms of this Agreement as provided herein.

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(b) Notwithstanding anything herein to the contrary, SLR is an express third-party beneficiary of this Agreement for purposes of exercising or enforcing the rights and obligations of the parties hereto pursuant to Section 2.2(a)(ii), Section 2.2(b)(ii), Section 2.2(c)(ii), Section 2.3, Section 2.4, Section 2.5, Section 2.6, Section 5.22, Section 5.24, Section 5.25 and Section 8.16.

Section 8.7. Governing Law. This Agreement will be governed by, and construed in accordance with, and all disputes arising out of or in connection with this Agreement or the Contemplated Transactions shall be resolved under, the Laws of the State of Delaware, regardless of the Laws that might otherwise govern under applicable principles of conflicts of laws thereof.

Section 8.8. Headings. The descriptive headings contained in this Agreement are included for convenience of reference only and will not affect in any way the meaning or interpretation of this Agreement.

Section 8.9. Counterparts. This Agreement may be executed and delivered (including by email transmission or DocuSign) in two (2) or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed will be deemed to be an original but all of which taken together will constitute one and the same agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by email (in .pdf or .tiff format) or DocuSign shall be sufficient to bind the parties to the terms and conditions of this Agreement.

Section 8.10. Merger Sub Performance. Parent hereby agrees to cause the due, prompt and faithful performance and discharge by, and compliance with, all of the obligations, covenants, terms, conditions and undertakings of Merger Sub under this Agreement in accordance with the terms hereof, in each case, except as would not reasonably be expected to cause a failure of the conditions set forth in Section 6.3. Any failure by Parent to comply with the provisions of this Section 8.10 shall not constitute a breach of this Agreement to the extent that the conditions set forth in Section 6.1(a) and Section 6.3 are satisfied.

Section 8.11. Jurisdiction; Waiver of Jury Trial.

(a) Each of the parties hereto hereby (i) expressly and irrevocably submits to the exclusive personal jurisdiction of the Court of Chancery of the State of Delaware or, if such Court of Chancery lacks subject matter jurisdiction, the state or federal courts in the State of Delaware, in the event any dispute arises out of this Agreement, the other Transaction Documents (other than the SLR Financing Agreements) or the Contemplated Transactions, (ii) 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 (iii) agrees that it shall not bring any action relating to this Agreement, the other Transaction Documents (other than the SLR Financing Agreements) or the Contemplated Transactions, in any court other than the Court of Chancery of the State of Delaware or, if such Court of Chancery lacks subject matter jurisdiction, the state or federal courts in the State of Delaware; provided that each of the parties has the right to bring any action or proceeding for enforcement of a judgment entered by the aforementioned courts in any other court or jurisdiction.

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(b) EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION ARISING OUT OF, RELATING TO OR IN CONNECTION WITH THIS AGREEMENT, ANY OTHER TRANSACTION DOCUMENT (OTHER THAN THE SLR FINANCING AGREEMENTS) OR THE CONTEMPLATED TRANSACTIONS. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATION OF THIS WAIVER, (III) EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND (IV) EACH OTHER PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

Section 8.12. Service of Process. Each party hereto irrevocably consents to the service of process outside the territorial jurisdiction of the courts referred to in Section 8.11(a) in any such action or proceeding by mailing copies thereof by registered United States mail, postage prepaid, return receipt requested, to its address as specified in or pursuant to Section 8.2. However, the foregoing will not limit the right of a party hereto to effect service of process on the other party by any other legally available method.

Section 8.13. Specific Performance.

(a) The parties hereto acknowledge and agree that, in the event of any breach of this Agreement, irreparable harm would occur that monetary damages could not make whole. It is accordingly agreed that, (i) each party hereto will be entitled, in addition to any other remedy to which it may be entitled at law or in equity, to compel specific performance to prevent or restrain breaches or threatened breaches of this Agreement in any action without the posting of a bond or undertaking and (ii) the parties hereto will, and hereby do, waive, in any action for specific performance, the defense of adequacy of a remedy at law and any other objections to specific performance of this Agreement.

(b) Notwithstanding the parties’ rights to specific performance pursuant to Section 8.13(a), each party hereto may pursue any other remedy available to it at law or in equity, including monetary damages; provided that, under no circumstances, will a party be permitted or entitled to receive both (x) a grant of specific performance that results in the occurrence of the Closing, and (y) monetary damages (including the Termination Fee or any monetary damages in lieu of specific performance).

Section 8.14. Interpretation. When reference is made in this Agreement to a Section, such reference will be to a Section, Article or Exhibit of this Agreement unless otherwise indicated. Whenever the words “include,” “includes” or “including” are used in this Agreement, they will be deemed to be followed by the words “without limitation.” The words “hereof,” “herein,” “hereby,” “hereto,” and “hereunder” and words of similar import when used in this Agreement will refer to this Agreement as a whole and not to any particular provision of this Agreement. The word “or” will not be exclusive. “Extent” in the phrase “to the extent” means the degree to which a subject or other thing extends, and such phrase does not mean simply “if.” References to “dollars” or “$” are to United States of America dollars. References to “ordinary course of business” refer to the ordinary course of business consistent with past practice of the Company and the Subsidiaries of the Company, taken as a whole (to the extent past practice exists with regard to the applicable conduct or matter). Whenever used in this Agreement, any noun or pronoun will be deemed to include the plural as well as the singular and to cover all genders. The phrases “made available”, “delivered” or other phrases of similar import, when used in reference to anything made available to Parent or Merger Sub or any of their Representatives prior to the execution of this Agreement, shall be deemed to include information or documents (i) provided by the Company to Representatives of Parent or Merger Sub or (ii) filed with the Electronic Data Gathering, Analysis and Retrieval (EDGAR) database of the SEC, in each case, on or after June 30, 2021 and at least one (1) Business Days prior to the date of this Agreement. This Agreement will be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting or causing any instrument to be drafted. Time is of the essence with respect to the performance of the obligations set forth in this Agreement and the provisions hereof will be interpreted as such. When reference is made to any party to this Agreement or any other agreement or document, such reference includes such party’s successors and permitted assigns. Unless the context otherwise requires, all references in this Agreement to the Subsidiaries of a Person will be deemed to include all direct and indirect Subsidiaries of such Person. Unless the context otherwise requires, any definition of or reference to any Law or any provision of any Law herein shall be construed as referring to such Law as from time to time amended, supplemented or modified, including by succession of comparable successor Laws and references to the rules and regulations promulgated thereunder or pursuant thereto. All references to days without explicit qualification of “business” will be interpreted as a reference to calendar days; and if any action or notice is to be taken or given on or by a particular calendar day, and such calendar day is not a Business Day, then such action or notice will be deferred until, or may be taken or given on, the next Business Day.

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Section 8.15. No Recourse.

(a) This Agreement, the other Transaction Documents and the SLR Financing Agreements to which a party hereto is a party to may only be enforced against, and any claims or causes of action that may be based upon, arise out of or relate to this Agreement, the other Transaction Documents or the SLR Financing Agreements to which a party hereto is a party to, or the negotiation, execution or performance of this Agreement, the other Transaction Documents or the SLR Financing Agreements to which a party hereto is a party to may only be made against the Persons that are expressly identified as parties hereto or thereto, as applicable, and no Parent Related Parties (other than Topco, Parent, Merger Sub and, solely to the extent set forth in the Equity Commitment Letter, Parent Sponsor) or Company Related Party (other than the Company to the extent party to any other Transaction Document or SLR Financing Agreement) shall have any liability for any obligations or liabilities of the parties to this Agreement (whether for indemnification or otherwise) or for any claim (whether in tort, contract or otherwise, including under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 or other Environmental Laws) based on, in respect of, or by reason of, the Contemplated Transactions or in respect of any oral representations made or alleged to be made in connection herewith. It is further understood that any certificate or certification contemplated by this Agreement and executed by an officer of a party will be deemed to have been delivered only in such officer’s capacity as an officer of such party (and not in his or her individual capacity) and will not entitle any party to assert a claim against such officer in his or her individual capacity. Notwithstanding the foregoing, nothing contained in this Section 8.15 or elsewhere in this Agreement shall limit the remedies or rights of the Company and the Company Related Parties pursuant to any SLR Financing Agreements against any counterparty thereto other than the Parent Related Parties.

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(b) All claims (whether in tort, contract or otherwise) that may be based upon, arise out of or relate to this Agreement, the other Transaction Documents or the SLR Financing Agreements to which a party hereto is a party to or the negotiation, execution, performance or non-performance of this Agreement, the other Transaction Documents or the SLR Financing Agreements to which a party hereto is a party to (including any representation or warranty made in or in connection with this Agreement, the other Transaction Documents or the SLR Financing Agreements to which a party hereto is a party to or as an inducement to enter into this Agreement, the other Transaction Documents or the SLR Financing Agreements to which a party hereto is a party to) may be made by any party hereto or thereto or any third party beneficiary of any relevant provision hereof or thereof only against the Persons that are expressly identified as parties hereto or thereto. No Person who is not a named party to this Agreement, the other Transaction Documents or the SLR Financing Agreements to which a party hereto is a party to, including any director, officer, employee, incorporator, member, partner, stockholder, Affiliate, agent, attorney or Representative of any named party to this Agreement that is not itself a named party to this Agreement, any of the other Transaction Documents or the SLR Financing Agreements to which a party hereto is a party to (“Non-Party Affiliates”), shall have any liability (whether in contract or in tort, in law or in equity, or based upon any theory that seeks to impose liability of an entity party against its owners or Affiliates) to any party to this Agreement for any obligations or liabilities arising under, in connection with or related to this Agreement, the other Transaction Documents or the SLR Financing Agreements to which a party hereto is a party to or for any claim based on, in respect of, or by reason of this Agreement, the other Transaction Documents or the SLR Financing Agreements to which a party hereto is a party to or their negotiation or execution; and each party hereto or thereto waives and releases all such liabilities, claims and obligations against any such Non-Party Affiliates; it being understood that the foregoing shall not restrict any claims that the Company may assert against (i) the Parent or Parent Sponsor under the Equity Commitment Letter pursuant to the terms and conditions of the Equity Commitment Letter or (ii) any party to any SLR Financing Agreements other than the Parent Related Parties. Nothing in this Section 8.15 (i) precludes the parties or express third-party beneficiaries from exercising any rights under this Agreement, any other Transaction Document or any SLR Financing Agreement to which they are specifically a party or an express third- party beneficiary thereof or (ii) limits the liability or obligations of any Non-Party Affiliates under this Agreement, any other Transaction Document or SLR Financing Agreement to which they are specifically a party. This Section 8.15 is subject to, and does not alter the scope or application of, Section 8.13. The parties acknowledge and agree that the Non-Party Affiliates are intended third-party beneficiaries of this Section 8.15.

Section 8.16. Non-Impairment. Notwithstanding anything herein to the contrary, nothing contained in this Agreement or any other Transaction Document shall affect, limit or impair the rights and remedies of SLR or any other lender in its capacity as a lender to, or holder of indebtedness of, the Company, Topco, Parent or any of their respective Subsidiaries, on the one hand, or of the Company or its Subsidiaries, on the other hand, pursuant to any agreement under which the Company, Topco, Parent or any of their respective Subsidiaries have borrowed money or issued debt, including, without limitation, under the SLR Financing Agreements, the Credit Agreement and the other Loan Documents. Notwithstanding anything to the contrary contained in this Agreement or in any other Transaction Document to which neither SLR nor any of its Affiliates is a party signatory thereto, the Company, Topco, Parent and Merger Sub each acknowledges and agrees that neither SLR nor any of its Affiliates shall have any obligations or liabilities under this Agreement or any such other Transaction Document to which neither SLR nor any of its Affiliates is a party signatory thereto.

[Remainder of Page Left Blank Intentionally.]

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IN WITNESS WHEREOF, each of Topco, Parent, Merger Sub and the Company has caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.

	VERONICA HOLDINGS, LLC


	By:	/s/ Konstantin Poukalov
	Name: Konstantin Poukalov
	Title: President

	VERONICA INTERMEDIATE HOLDINGS, LLC


	By:	/s/ Konstantin Poukalov
	Name: Konstantin Poukalov
	Title: President

	VERONICA MERGER SUB, INC.


	By:	/s/ Konstantin Poukalov
	Name: Konstantin Poukalov
	Title: President

	VAPOTHERM, INC.


	By:	/s/ Joseph Army
	Name: Joseph Army
	Title: President and Chief Executive Officer

Exhibit 4.1

Execution Version

OMNIBUS WARRANT AMENDMENT AGREEMENT

THIS OMNIBUS WARRANT AMENDMENT AGREEMENT (this “Agreement”), dated as of June 17, 2024, is entered into by and among (i) Vapotherm, Inc., a Delaware corporation (the “Company”), and (ii) each of the persons identified as a Holder on the signature pages hereto (each, a “Holder” and collectively, the “Holders”).

WHEREAS, in connection with the Loan Agreement, the Company and each of the Holders is a party to an applicable warrant to purchase common stock, $0.001 par value per share, of the Company (“Common Stock”), and holds warrants to purchase that number of shares of Common Stock set forth opposite such Holder’s name on Exhibit A attached hereto (such warrants and any other warrants to purchase Common Stock held by or issued to SLR or any of its affiliates pursuant to the Loan Agreement prior to the consummation of the transactions contemplated by the Merger Agreement (as defined below), including in accordance with Section 3, the “Warrants”);

WHEREAS, concurrently with the execution and delivery of this Agreement, the Company, Veronica Holdings, LLC, a Delaware limited liability company (“Topco”), Veronica Intermediate Holdings, LLC, a Delaware limited liability company and wholly owned subsidiary of Topco (“Parent”), and Veronica Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), are entering into that certain Agreement and Plan of Merger (as amended, modified or supplemented, from time to time, the “Merger Agreement”), pursuant to which, on the terms thereof and subject to the conditions therein, among other matters, Merger Sub shall merge with and into the Company, with the Company surviving such merger (the “Merger” and the Company as the surviving corporation of the Merger, the “Surviving Corporation”);

WHEREAS, concurrently with the execution and delivery of this Agreement, Topco, Parent, and each of the Lenders are entering into that certain Rollover Agreement (as amended, modified or supplemented, from time to time, the “Rollover Agreement”), pursuant to which, on the terms thereof and subject to the conditions therein, among other matters, the Lenders are agreeing to, immediately prior to the Merger and subject to the subsequent consummation of the Merger, contribute certain of the loans and certain of the accrued but unpaid interest and fees under the Loan Agreement, and the Warrants, to Topco in exchange for Series A Preferred Units of Topco and Common Units of Topco (the “Rollover”), and subsequent to the consummation of the Merger, such loans and accrued but unpaid interest and fees under the Loan Agreement, and the Warrants, shall be contributed by Topco to Parent and immediately upon receipt by Parent thereof, such loans and accrued but unpaid interest and fees under the Loan Agreements, and the Warrants, shall thereafter be contributed by Parent to the Surviving Corporation (the “Contribution”); and

WHEREAS, in connection with the transactions contemplated by the Merger Agreement, the Company and the Holders desire to amend the Warrants and make certain agreements with respect to the Warrants in the manner provided in this Agreement.

NOW, THEREFORE, in consideration of the premises and the mutual representations, warranties, covenants, agreements and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:

1. Definitions. Capitalized terms used but not defined herein shall have the respective meanings ascribed to such terms in the applicable Warrant.

2. Amendment of the Warrants. Effective immediately prior to the consummation of the Rollover (but subject to the subsequent consummation of the Merger immediately following the Rollover), the Company and each of the Holders hereby agree that the Warrants shall be amended as provided in this Section 2:

2.1

Treatment of Warrant Upon Acquisition of Company. Each of the Warrants shall be amended to add the following paragraph as a new Section 1.6(e) thereof:

“The Company is a party to that certain Agreement and Plan of Merger, dated as of June 17, 2024 (the “Merger Agreement”), among the Company, Veronica Holdings, LLC, a Delaware limited liability company (“Topco”), Veronica Intermediate Holdings, LLC, a Delaware limited liability company and wholly owned subsidiary of Topco (“Parent”), and Veronica Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), pursuant to which, on the terms thereof and subject to the conditions therein, among other matters, Merger Sub shall merge with and into the Company, with the Company surviving such merger (the “Merger” and the Company as the surviving corporation of the Merger, the “Surviving Corporation”), and Holder is a party to that certain Rollover Agreement, dated as of June 17, 2024 (the “Rollover Agreement”), by and among Topco, Parent, and each of the lenders party to the Loan Agreement (including Holder), pursuant to which, on the terms thereof and subject to the conditions therein, among other matters, Holder is agreeing to, immediately prior to the Merger and subject to the subsequent consummation of the Merger, contribute certain of the loans and certain of the accrued but unpaid interest and fees under the Loan Agreement, and this Warrant, to Topco in exchange for Series A Preferred Units of Topco and Common Units of Topco (the “Rollover”), and subsequent to the consummation of the Merger, such loans and accrued but unpaid interest and fees under the Loan Agreement, and this Warrant, shall thereafter be contributed by Topco to Parent and immediately upon receipt by Parent thereof, such loans, accrued but unpaid interest and fees under the Loan Agreements, and this Warrant shall thereafter be contributed by Parent to the Surviving Corporation (the “Contribution”). Notwithstanding anything to the contrary in this Warrant (but subject to the subsequent consummation of the Merger immediately following the Rollover), pursuant to the terms and subject to the conditions of the Rollover Agreement, (i) Holder shall contribute this Warrant to Topco in exchange for the consideration to be issued to the Holder set forth therein in connection with the Rollover, (ii) subsequent to the consummation of the Merger, this Warrant shall thereafter be contributed by Topco to Parent and immediately upon receipt by Parent thereof, this Warrant shall thereafter be contributed by Parent to the Surviving Corporation in connection with the Contribution, and (iii) thereafter, as a result of the consummation of the transactions contemplated by the Rollover Agreement (including the Rollover and the Contribution), this Warrant shall be cancelled and retired without any conversion thereof and cease to exist and no payment or distribution will be made with respect thereto.”

3. Warrant Issuance and Exercise.

3.1

Immediately prior to the consummation of the Rollover (but subject to the subsequent consummation of the Merger immediately following the Rollover), the Company shall issue to the Holders all of the Warrants that are outstanding, or unissued but otherwise due to the Holders, under the Loan Agreement pursuant to the provisions thereof (the “Outstanding Warrants”); provided, in the event that the Merger Agreement is validly terminated in accordance with its terms prior to the consummation of the Merger, the Company shall thereafter, upon the election of any Holder in its sole discretion, issue to such Holder all or any portion of its Outstanding Warrants; provided, further, that the Company shall not effect any issuance of the Outstanding Warrants, until the earlier of (a) immediately prior to the consummation of the Rollover (but subject to the subsequent consummation of the Merger immediately following the Rollover), and (b) such time as the Merger Agreement is validly terminated in accordance with its terms prior to the consummation of the Merger.

3.2

The Holders shall not be entitled to exercise the Warrants (without the prior written consent of the Company) until such time as the Merger Agreement is validly terminated in accordance with its terms prior to the consummation of the Merger.

4. Assignment. Prior to the consummation of the Rollover, each Holder may assign or transfer all or part of its Warrants and/or Outstanding Warrants and/or assign or transfer its rights hereunder and thereunder, to such Holder’s affiliates, upon providing notice to the Company.

5. Representations and Warranties of the Company. The Company represents and warrants to each of the Holders as follows:

5.1

The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware. The Company has the corporate power and authority to own its property, carry on its business as now being conducted, and to carry out the transactions contemplated by this Agreement and the Warrants.

5.2

The Company has all requisite power, authority and legal capacity to enter into this Agreement, to perform its respective obligations under this Agreement and each of the Warrants, and to consummate the transactions that are the respective subjects of this Agreement and each of the Warrants. This Agreement has been duly authorized, executed and delivered by the Company and, upon due authorization, execution and delivery by each of the Holders, will constitute the valid and legally binding agreement of the Company, enforceable in accordance with its terms against the Company, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other laws of general application relating to or affecting the enforcement of creditors’ rights and remedies, as from time to time may be in effect, and (ii) application of equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) (the “Enforceability Exceptions”).

5.3

The execution and delivery of this Agreement by the Company does not, and the consummation of the transactions contemplated hereby will not (with or without the giving of notice or the lapse of time or both), (i) violate or conflict with or result in any default under any provision of the organizational documents of the Company or any of its subsidiaries, (ii) violate any provision of any law, or any order, judgment or decree of any court or other governmental authority applicable to the Company or any of its subsidiaries or any of their respective assets or properties, or (iii) violate or result in the cancellation, modification, revocation or suspension of any material license, franchise or permit held by the Company or any of its subsidiaries, unless, with respect to the foregoing clauses (ii) and (iii), such violation, cancellation, modification, revocation or suspension would not, individually or in the aggregate, be material to the Company and its subsidiaries, taken as a whole.

5.4

Each of the Warrants issued and outstanding as of the date of this Agreement or that will be issued and outstanding as of immediately prior to the consummation of the Rollover (including in accordance with Section 3), has been and will be duly authorized and validly created (and the Company has reserved from its authorized but unissued shares of Common Stock a sufficient number of shares of Common Stock to provide for the exercise in full of each of the Warrants), and the shares of Common Stock issuable upon exercise of the Warrants will, when issued, by duly authorized, validly issued, fully paid and nonassessable shares of Common Stock.

6. Representations and Warranties of the Holders. Each of the Holders represents and warrants to the Company, severally (and not jointly or jointly and severally), solely with respect to itself, as follows:

6.1

Such Holder is a corporation, limited liability company or limited partnership duly incorporated, formed or organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation, formation or organization. Such Holder has the full requisite power and authority to own its property, carry on its business as now being conducted, and to carry out the transactions contemplated by this Agreement and the applicable Warrant.

6.2

Such Holder has all requisite power, authority and legal capacity to enter into this Agreement, to perform its respective obligations under this Agreement and the applicable Warrant, and to consummate the transactions that are the respective subjects of this Agreement and the applicable Warrant. This Agreement has been duly authorized, executed and delivered by such Holder and, upon due authorization, execution and delivery by the Company and each of the other Holders, will constitute the valid and legally binding agreement of such Holder, enforceable in accordance with its terms against such Holder, except as such enforceability may be limited by the Enforceability Exceptions.

6.3

The execution and delivery of this Agreement by such Holder does not, and the consummation of the transactions contemplated hereby will not (with or without the giving of notice or the lapse of time or both), (i) violate or conflict with or result in any default under any provision of the organizational documents of such Holder or any of its subsidiaries, (ii) violate any provision of any law, or any order, judgment or decree of any court or other governmental authority applicable such Holder or any of its subsidiaries or any of their respective assets or properties, or (iii) violate or result in the cancellation, modification, revocation or suspension of any material license, franchise or permit held by such Holder or any of its subsidiaries, unless, with respect to the foregoing clauses (ii) and (iii), such violation, cancellation, modification, revocation or suspension would not, individually or in the aggregate, be material to such Holder and its subsidiaries, taken as a whole.

7.	Miscellaneous.

7.1

Termination. This Agreement (other than Sections 3 and this Section 7) shall terminate automatically without further action by any party hereto and immediately upon the valid termination of the Merger Agreement or the Rollover Agreement in accordance its terms prior to the consummation of the Merger. Nothing in this Section 7.1 will relieve any party hereto from liabilities or damages arising out of its breach of this Agreement or the Rollover Agreement by such party hereto prior to the time of termination, and each other party hereto will be entitled to any remedies at law or in equity to recover losses arising from such breach.

7.2

No Other Changes. Except as amended herein, all of the terms and conditions of the Warrants shall remain in full force and effect, and the Company and each of the Holders shall remain fully obligated to perform each and all of their obligations thereunder.

7.3

Further Assurances. Each party hereto hereby agrees to use its reasonable best efforts to take, or cause to be taken, all actions, and do, or cause to be done, and to assist and cooperate with the other parties hereto in doing all things necessary, proper or advisable under applicable laws to consummate the transactions contemplated by this Agreement.

7.4

Binding on Successors. Subject to Section 4, all of the covenants and provisions of this Agreement by or for the benefit of the parties hereto shall bind and inure to the benefit of their respective successors and assigns.

7.5

Notices. All notices and other communications hereunder from the Company to any of the Holders, or vice versa, shall be deemed delivered and effective (a) when given personally, (b) on the third (3rd) Business Day after being mailed by first-class registered or certified mail, postage prepaid, (c) when sent via email (provided that no “bounce back” or other notice of non-delivery is generated), or (d) on the first Business Day following delivery to a reliable overnight courier service, courier fee prepaid, in any case at such address as may have been furnished to the Company or any of the Holders, as the case may be, in writing by the Company or such Holder from time to time in accordance with the provisions of this Section 7.5:

All notices to any of the Holders shall be addressed as follows until the Company receives notice of a change of address in connection with a transfer or otherwise:

SLR Investment Corp.

500 Park Avenue, 3rd Floor

New York, NY 10022

Attention: Anthony Storino

Email: astorino@slrcp.com

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

Latham & Watkins LLP

1271 Avenue of the Americas

New York, NY 10020

Attention: Haim Zaltzman

Daniel Mun

Email: haim.zaltzman@lw.com

daniel.mun@lw.com

Notice to the Company shall be addressed as follows until the Holders receive notice of a change in address:

Vapotherm, Inc.

100 Domain Drive

Exeter, NH 03833

Attn: John Landry, VP & CFO

Email: jlandry@vtherm.com

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

Ropes & Gray LLP

1211 Avenue of the Americas

New York, NY 10036

Attention: Paul Kinsella

Sarah Young

Gregory Bauer

Email: paul.kinsella@ropesgray.com

sarah.young@ropesgray.com

gregory.bauer@ropesgray.com

7.6

Waiver. This Agreement and any term hereof may be changed, waived, discharged or terminated (either generally or in a particular instance and either retroactively or prospectively) only by an instrument in writing signed by the party against which enforcement of such change, waiver, discharge or termination is sought.

7.7

Counterparts; Electronic Signatures. This Agreement may be executed in counterparts, all of which together shall constitute one and the same agreement. Any signature page delivered electronically (including by DocuSign, .PDF file format or email transmission) shall be binding to the same extent as an original signature page with regards to any agreement subject to the terms hereof or any amendment thereto.

7.8

Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to conflict of law principles that would result in the application of the laws of any other jurisdiction.

7.9

Jurisdiction. Each of the parties hereto hereby agrees that any legal action, proceeding or claim against it arising out of or relating in any way to this Agreement shall be brought and enforced in the courts of the State of New York or the United States District Court for the Southern District of New York, and irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive. Each of the parties hereto hereby consents and submits to the jurisdiction of the aforesaid courts and waives and agrees not to plead or claim, in any legal action, proceeding or claim with respect to this Agreement or the enforcement hereof brought in any of the aforesaid courts, that any such court lacks jurisdiction over such party, that venue before any such court is improper, that any such court is an inconvenient forum, or that such legal action, proceeding or claim should be transferred from any such court for any other reason.

7.10

Waiver of Jury Trial. AS A MATERIAL INDUCEMENT FOR EACH PARTY HERETO TO ENTER INTO THIS AGREEMENT, THE PARTIES HERETO HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING RELATED IN ANY WAY TO THIS AGREEMENT AND/OR ANY AND ALL OF THE OTHER DOCUMENTS ASSOCIATED WITH THIS TRANSACTION.

7.11

Headings; Interpretive Matters. The headings in this Agreement are for purposes of reference only and shall not limit or otherwise affect the meaning or interpretation of any provision of this Agreement. Any reference to $ shall mean U.S. dollars, which is the currency used for all purposes in this Agreement. Any reference to the singular or to “him”, “her”, “it”, “itself”, or other like references, and references in the plural or the neuter, feminine or masculine reference, as the case may be, shall also, when the context so requires, be deemed to include the plural or singular, or the neuter, masculine or feminine reference, as the case may be. The words such as “herein,” “hereinafter,” “hereof” and “hereunder” that are used in this Agreement refer to this Agreement as a whole and not merely to a subdivision in which such words appear unless the context otherwise requires. The word “including” or any variation thereof means “including, without limitation” and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it. The parties hereto have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.

7.12

Severability. If any provision of this Agreement, or the application thereof to any party hereto or circumstance is held invalid or unenforceable, the remainder of this Agreement, and the application of such provision to other parties hereto or circumstances, shall not be affected thereby, and to such end, the provisions of this Agreement are agreed to be severable.

7.13

Entire Agreement. This Agreement and the schedules and exhibits and other documents delivered by the parties hereto in connection herewith, the Warrants, the Merger Agreement and the Rollover Agreement contain the complete agreement among the parties hereto and thereto with respect to the transactions contemplated hereby and thereby and supersede all prior agreements and understandings between the parties hereto with respect hereto and thereto.

(Signature Pages Follow)

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.

	COMPANY:

	VAPOTHERM, INC.


	By:	/s/ Joseph Army
	Name: Joseph Army
	Title: President and Chief Executive Officer

	HOLDERS:

	SLR INVESTMENT CORP.


	By:	/s/ Anthony Storino
	Name:	Anthony Storino
	Title:	Authorized Signatory

	SCP PRIVATE CREDIT INCOME FUND L.P.


	By:	/s/ Anthony Storino
	Name:	Anthony Storino
	Title:	Authorized Signatory

	SCP PRIVATE CREDIT INCOME FUND SPV, LLC


	By:	/s/ Anthony Storino
	Name:	Anthony Storino
	Title:	Authorized Signatory

	SCP PRIVATE CREDIT INCOME BDC LLC


	By:	/s/ Anthony Storino
	Name:	Anthony Storino
	Title:	Authorized Signatory

	SCP PRIVATE CREDIT INCOME BDC SPV LLC


	By:	/s/ Anthony Storino
	Name:	Anthony Storino
	Title:	Authorized Signatory

	SCP PRIVATE CORPORATE LENDING FUND L.P.


	By:	/s/ Anthony Storino
	Name:	Anthony Storino
	Title:	Authorized Signatory

	SCP PRIVATE CORPORATE LENDING FUND SPV LLC


	By:	/s/ Anthony Storino
	Name:	Anthony Storino
	Title:	Authorized Signatory

	SCP CAYMAN DEBT MASTER FUND, L.P.


	By:	/s/ Anthony Storino
	Name:	Anthony Storino
	Title:	Authorized Signatory

	SCP CAYMAN DEBT MASTER FUND SPV LLC


	By:	/s/ Anthony Storino
	Name:	Anthony Storino
	Title:	Authorized Signatory

	SCP SF DEBT FUND L.P.


	By:	/s/ Anthony Storino
	Name:	Anthony Storino
	Title:	Authorized Signatory

	SLR CP SF DEBT FUND SPV LLC


	By:	/s/ Anthony Storino
	Name:	Anthony Storino
	Title:	Authorized Signatory

	SLR HC ONSHORE FUND L.P.


	By:	/s/ Anthony Storino
	Name:	Anthony Storino
	Title:	Authorized Signatory

	SLR HC FUND SPV, LLC


	By:	/s/ Anthony Storino
	Name:	Anthony Storino
	Title:	Authorized Signatory

	SLR HC BDC LLC


	By:	/s/ Anthony Storino
	Name:	Anthony Storino
	Title:	Authorized Signatory

Exhibit 10.1

ROLLOVER AGREEMENT

This ROLLOVER AGREEMENT (this “Agreement”), dated as of June 17, 2024, is entered into by and among (i) Veronica Holdings, LLC, a Delaware limited liability company (“Topco”), (ii) Vapotherm, Inc., a Delaware corporation (the “Company”), and (iii) the person identified on the signature page hereto as Holder (“Holder”).

RECITALS

WHEREAS, as of the date hereof, Holder owns the number of shares of common stock, $0.001 par value per share, of the Company (“Common Stock”) set forth on Holder’s signature page hereto (the “Existing Shares”);

WHEREAS, concurrently with the execution and delivery of this Agreement, the Company, Topco, Veronica Intermediate Holdings, LLC, a Delaware limited liability company (“Parent”), and Veronica Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), are entering into that certain Agreement and Plan of Merger (as amended, modified or supplemented, from time to time, the “Merger Agreement”), pursuant to which, on the terms thereof and subject to the conditions therein, among other matters, Merger Sub shall merge with and into the Company, with the Company surviving such merger (the “Merger”) and, other than any Shares described in Section 2.1(b) of the Merger Agreement (including the Existing Shares and any other Rollover Shares) and any Dissenting Shares, all of the shares of Common Stock issued and outstanding and held by the stockholders of the Company as of immediately prior to the effectiveness of the Merger (the “Effective Time”) shall be converted into the right to receive $2.18 in cash (less applicable withholding) for each such share of Common Stock;

WHEREAS, on the terms and subject to the provisions hereof, Holder desires to, on the Closing Date but immediately prior to the Effective Time, contribute, transfer and assign to Topco all of the Rollover Shares in exchange for an aggregate number of Common Units in Topco (such Common Units, the “Exchange Units”) having the rights and privileges described on Exhibit A (the “Equity Term Sheet”) at a price per Exchange Unit equal to $2.18 (the “Rollover”);

WHEREAS, contemporaneously with the closing of the contribution and exchange of the Rollover Shares and the issuance of the Exchange Units to Holder pursuant to Section 2.1 (the “Rollover Closing”), Topco, Perceptive Advisors, LLC or its applicable Affiliates (collectively, “Perceptive”), SLR and certain other stockholders of the Company that are parties to Rollover Agreements shall enter into an amended and restated limited liability company agreement of Topco that is mutually agreeable to Topco, Perceptive and SLR (the “Topco A&R LLC Agreement”);

WHEREAS, contemporaneously with the Rollover Closing, Holder will deliver to Topco a duly executed joinder to the Topco A&R LLC Agreement, on the form that is provided to Holder by Topco prior to the Rollover Closing (the “Joinder”), and Holder agrees to be bound by the Topco A&R LLC Agreement and agrees that the Exchange Units issued to Holder will be bound by and subject to the terms of the Topco A&R LLC Agreement;

WHEREAS, for United States federal income tax purposes, it is intended that the Rollover, taken together with the other contributions to Topco contemporaneous therewith, will be treated as a transfer governed by Section 351 of the Code (as defined below) (the “Intended Tax Treatment”); and

WHEREAS, none of the Rollover Shares were acquired by Holder upon the exercise of an “incentive stock option” within the meaning of Section 422 of the Code where the exercise date of the incentive stock option was within 12 months prior to the Closing Date or the grant date was within 24 months prior to the Closing Date.

NOW, THEREFORE, in order to implement the foregoing and in consideration of the mutual representations, warranties, covenants and agreements contained herein and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:

AGREEMENT

Section 1. Definitions. The following terms, as used in this Agreement, shall have the meanings set forth below. Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Merger Agreement.

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

1.2 “Beneficial Ownership” means, with respect to any Person, that such Person is deemed to, directly or indirectly beneficially own securities within the meaning assigned to such term in Rule 13d-3 adopted by the Securities and Exchange Commission under the Exchange Act, and a Person’s beneficial ownership of securities shall be calculated in accordance with the provisions of such Rule (in each case, irrespective of whether or not such Rule is actually applicable in such circumstance). For the avoidance of doubt, Beneficial Ownership shall also include record ownership of securities. The terms “Beneficially Own,” “Beneficially Owned” and “Beneficial Owner” shall have correlative meanings.

1.3 “Expiration Date” means the earliest to occur of (a) the mutual written agreement of Topco and Holder, (b) the consummation of the Closing in accordance with the Merger Agreement, and (c) the valid termination of the Merger Agreement pursuant to Article VII thereof.

1.4 “Rollover Shares” means the Existing Shares.

1.5 “Transfer” means, with respect to any Rollover Share, directly or indirectly, to: (a) sell, transfer, gift, bequeath, exchange, offer, assign, pledge, encumber, subject to a Lien, hypothecate or otherwise dispose of (by merger, consolidation, share exchange, statutory division, statutory conversion, statutory domestication, by tendering into any tender or exchange offer, by testamentary disposition, by operation of law or otherwise), such Rollover Share, (b) to enter into any contract, option or other agreement, arrangement or understanding with respect to any transaction described in the immediately preceding clause (a) of this definition or (c) enter into any swap, hedge, derivative or other arrangement that transfers to another, in whole or in part, any of the economic consequences of Beneficial Ownership of such Rollover Share, whether settled by delivery of such Rollover Share, or other securities, in cash or otherwise; provided that, the following shall not be deemed a “Transfer”: (i) any exercise of stock options, derivatives or other similar equity securities in accordance with their terms, or (ii) sales, transfers or dispositions of Rollover Shares, or any derivatives, options or similar equity securities in accordance with their terms, in the case of the immediately preceding clause (ii), solely to cover any tax payments due or payable upon the vesting of any equity awards or grants or the exercise of any stock options, in each case, in accordance with their terms. The terms “Transferring”, “Transferee”, “Transferred” or similar words shall have correlative meanings to “Transfer.”

Section 2. Rollover and Certain Agreements.

2.1 Rollover. On the terms and subject to the conditions set forth herein, (a) Holder agrees, at the Rollover Closing, to contribute, transfer and assign to Topco all of the Rollover Shares in exchange for the issuance of the Exchange Units by Topco to Holder, and at Topco’s written request, Holder shall execute and deliver to Topco all documents and instruments reasonably necessary to effect the Rollover in accordance with the terms hereof (including any certificate(s) representing such Rollover Shares accompanied by duly executed transfer powers in form and substance reasonably satisfactory to Topco), and (b) Topco agrees, at such time, to issue to Holder the Exchange Units, free and clear of all Liens (other than restrictions on transfer arising under the Securities Act or other applicable securities Laws or set forth in the Topco A&R LLC Agreement), in exchange for the contribution, transfer and assignment by Holder to Topco of the Rollover Shares, and shall execute and deliver to Holder all documents and instruments reasonably necessary to effect such issuance. The number of Exchange Units that will be issued by Topco to Holder at the Rollover Closing in respect of Holder’s Existing Shares is set forth opposite Holder’s name on Schedule A. For the avoidance of doubt and pursuant to Section 2.1(b) of the Merger Agreement, the Rollover Shares will not be converted into a right to receive a portion of the cash consideration payable to the stockholders of the Company pursuant to the Merger Agreement.

2.2 Rollover Closing. The consummation of the transactions contemplated hereby shall take place on the Closing Date immediately prior to the Effective Time, subject to the subsequent occurrence of the Closing (and, for avoidance of doubt, consummation of the Merger) in accordance with the Merger Agreement and subject to the satisfaction (or waiver by Topco) of the conditions to the Rollover Closing set forth in Section 2.3. For the avoidance of doubt, neither the contribution, transfer and assignment of the Rollover Shares in exchange for the issuance of Exchange Units contemplated by this Agreement shall occur if the Closing does not occur.

2.3 Rollover Closing Conditions (Topco). Topco’s obligation to issue the Exchange Units to Holder at the Rollover Closing pursuant to Section 2.1 is subject to the following conditions precedent:

(a) Holder shall have complied in all material respects with its obligations hereunder that are to be performed by Holder on or prior to the Rollover Closing (including, for avoidance of doubt, the delivery of the Rollover Shares to Topco in accordance with Section 2.1);

(b) the representations and warranties of Holder under Section 5 and Section 6 herein shall be true and correct in all material respects when made and on the Closing Date;

(c) Holder shall have delivered to Topco a complete and duly executed Accredited Investor Questionnaire attached hereto as Exhibit B (the “Accredited Investor Questionnaire”);

(d) if Holder is an individual and is married or has a domestic partner, deliver the Spousal Consent attached hereto as Exhibit C, duly executed by such Holder’s spouse or domestic partner;

(e) Holder shall have delivered to Topco a duly executed Joinder to the Topco A&R LLC Agreement; and

(f) Holder shall have delivered to Topco a complete and duly executed IRS Form W‑9 or IRS Form W-8BEN (or other appropriate IRS Form W-8), as applicable.

2.4 Voting. Prior to the Expiration Date and subject to the terms of this Agreement, Holder hereby agrees that at the Company Stockholder Meeting or any other annual or special meeting of the stockholders of the Company, however called, including any adjournment, recess or postponement thereof, or in connection with any written consent of the Company’s stockholders and in any other circumstance upon which a vote, consent or approval of all or some of the stockholders of the Company is sought, in each case, with respect to which any of the matters described in subsections (a) through (d) of this Section 2.4 is to be considered, Holder shall (solely in its capacity as a stockholder of the Company), unless the Company Board and the Special Committee has made a Change of Board Recommendation in compliance with the terms of the Merger Agreement and such Change of Board Recommendation has not been rescinded or otherwise withdrawn in accordance with the provisions of the Merger Agreement, (i) appear at each such meeting or cause its representative(s) to appear at such meeting or otherwise cause the Rollover Shares outstanding as of the record date for determining stockholders entitled to vote at such meeting to be counted as present thereat for purposes of determining whether a quorum is present and respond to each request by the Company for written consent, if any, of any shares entitled to provide consent as of the record date for determining the stockholders of the Company entitled to act by consent and (ii) vote or cause to be voted, in person or by proxy, or duly execute and deliver or cause to be duly executed and delivered a written consent covering, all of the Rollover Shares (to the extent the Rollover Shares may vote on the matter in question) outstanding as of such record date:

(a) in favor of the adoption and approval of the Merger Agreement and the Merger;

(b) against any action, proposal, agreement or transaction (including any Acquisition Proposal) that would reasonably be expected, or the effect of which would reasonably be expected, to change in any manner the voting rights of any class of shares of the Company or materially impede, interfere with, delay, postpone, frustrate, discourage or adversely affect the timely consummation of the Contemplated Transactions, including the Closing and the Merger, or the performance by Holder of its obligations under this Agreement, including, without limitation: (i) any extraordinary corporate transaction, such as a scheme of arrangement, debt or equity financing, merger, consolidation or other business combination involving the Company or any of its Subsidiaries (other than the Merger); (ii) a sale, lease or transfer of a material amount of assets of the Company and its Subsidiaries, taken as a whole, or a reorganization, recapitalization or liquidation of the Company or any of its Subsidiaries; (iii) an election of new members to the Company Board, other than nominees to the Company Board who are serving as directors of the Company on the date of this Agreement or as otherwise provided in the Merger Agreement; or (iv) any material change in the present capitalization or dividend policy of the Company or any of its Subsidiaries or any amendment or other change to the Company’s or any of its Subsidiaries’ Organizational Documents;

(c) against any action, proposal, transaction or agreement that would result in (i) a breach in any respect of any covenant, representation or warranty or any other obligation or agreement of the Company contained in the Merger Agreement, or of Holder contained in this Agreement; or (ii) any of the conditions to the consummation of the Merger set forth in Article VI of the Merger Agreement not being fulfilled; and

(d) in favor of any adjournment, recess, delay or postponement of the Company Stockholder Meeting as may be reasonably requested by the Company Board or the Special Committee in order to seek or obtain approval of the adoption of the Merger Agreement or any action, proposal, transaction or agreement necessary to consummate the Merger.

Any attempt by Holder to vote, or express consent or dissent with respect to (or otherwise to utilize the voting power of), any of the Rollover Shares in a manner that violates or breaches the terms of this Agreement shall be null and void ab initio.

2.5 Restrictions on Transfer.

(a) Except as expressly provided for in Section 2.1 hereof, Holder hereby covenants and agrees that, prior to the Expiration Date, Holder shall not, directly or indirectly, (i) Transfer (or cause or permit the Transfer of), either voluntarily or involuntarily, or enter into any Contract, option or other arrangement or understanding with respect to the Transfer of any of the Rollover Shares or any interest therein, including, without limitation, any swap transaction, option, warrant, forward purchase or sale transaction, futures transaction, cap transaction, floor transaction, collar transaction or any other similar transaction (including any option with respect to any such transaction) or combination of any such transactions, in each case involving any of the Rollover Shares, (ii) deposit any of the Rollover Shares into a voting trust or enter into a voting agreement or arrangement or grant any proxy or power of attorney with respect to the Rollover Shares that is inconsistent with Holder’s obligations under this Agreement, (iii) convert or exchange, or take any action which would, or would reasonably be expected to, result in the conversion or exchange, of any of the Rollover Shares, (iv) take any action that would, or would reasonably be expected to, (A) make any representation or warranty of Holder set forth in this Agreement materially untrue or materially incorrect, (B) have the effect of preventing, disabling, or materially delaying Holder from performing any of its obligations under this Agreement or (C) result in a breach of any covenant, agreement or obligation of Holder set forth in this Agreement, or (v) commit or agree to commit (in each case, in writing) to take any of the actions referred to in the immediately preceding clauses (i), (ii), (iii) or (iv). Any purported Transfer, act or omission in violation of this Section 2.5 shall be void ab initio and of no force or effect.

(b) This Agreement and the obligations hereunder shall be binding upon any Person to which legal or Beneficial Ownership of the Rollover Shares or any interest therein or rights with respect thereto shall pass, whether by operation of Law or otherwise, including, Holder’s heirs, devisees, successors and assigns. Holder covenants and agrees that it will not request that the Company register the Transfer (book-entry or otherwise) of any certificate or uncertificated interest representing any or all of the Rollover Shares, unless such Transfer is made in compliance with this Agreement. To the extent requested in writing by Topco, Holder shall promptly surrender the certificate or certificates, if any, representing any Rollover Shares Beneficially Owned by Holder so that the transfer agent for such Rollover Shares may affix thereto an appropriate legend referring to this Agreement and the restrictions on transfer and ownership hereunder. Holder acknowledges and agrees that, with respect to any Rollover Shares that are uncertificated, Holder has received all notices of the restrictions on transfer and ownership required by applicable Law.

2.6 Proxy.

(a) Prior to the Expiration Date, Holder hereby (i) grants to, and appoints, Topco, and any person designated by Topco, and each of them individually, Holder’s proxy and attorney-in-fact (with full power of substitution and re-substitution), for and in the name, place and stead of Holder, to vote all of the Rollover Shares or execute and deliver a consent or approval in respect of the Rollover Shares (or cause any vote or consent to be provided in respect to all of the Rollover Shares), in accordance with the terms of Section 2.4 hereof, solely with respect to matters set forth in Sections 2.4(a) – (e) hereof, and (ii) revokes any and all proxies heretofore given in respect of the Rollover Shares. For the avoidance of doubt, nothing herein shall restrict Holder from voting or granting consents or approvals in respect of the Rollover Shares for any matters other than those set forth in Sections 2.4(a) – (d) hereof.

(b) The attorneys-in-fact and proxies named above are hereby authorized and empowered by Holder at any time after the date hereof and prior to the Expiration Date to act as Holder’s attorney-in-fact and proxy to vote the Rollover Shares, and to exercise all voting, consent and similar rights of Holder with respect to the Rollover Shares (including the power to execute and deliver written consents), solely with respect to matters set forth in Sections 2.4(a) – (d) hereof, at the Company Stockholder Meeting and any other annual or special meeting of stockholders and in every action by written consent in lieu of such a meeting in accordance with the terms of Section 2.4 hereof.

(c) Holder hereby represents and warrants to Topco that any proxies heretofore given in respect of the Rollover Shares are not irrevocable and that any such proxies are hereby revoked, and Holder agrees to promptly notify Topco and the Company of such revocation. Holder hereby affirms that the proxy granted herein is given in connection with the execution of the Merger Agreement and that such proxy is given to secure the performance of the duties of Holder under this Agreement. Holder hereby further affirms that the proxy granted herein is coupled with an interest sufficient at law to support the creation of a proxy and power of attorney and may under no circumstances be revoked. Holder hereby ratifies and confirms all that such proxy may lawfully do or cause to be done by virtue hereof. Holder agrees to vote the Rollover Shares in accordance with Section 2.4 hereof, solely with respect to matters set forth in Sections 2.4(a) – (d) hereof. Notwithstanding anything to the contrary in this Agreement, the proxy and attorney-in-fact granted by Holder pursuant to this Section 2.6, and all other obligations and covenants of Holder set forth in this Section 2.6, shall be revocable by Holder upon the termination of the Merger Agreement pursuant to and in accordance with its terms.

2.7 Additional Agreements.

(a) Certain Events. In the event of any stock split, stock dividend, merger, reorganization, recapitalization or other change in the capital structure of the Company affecting the Rollover Shares or other securities or rights of the Company by Holder, (i) the type and number of Rollover Shares shall be adjusted appropriately, and (ii) this Agreement and the obligations of Holder hereunder shall automatically attach to any additional Rollover Shares or other securities or rights of the Company issued to or acquired by Holder.

(b) Waiver of Appraisal and Dissenters’ Rights and Actions. Holder hereby irrevocably and unconditionally waives and agrees not to exercise, and covenants to cause its controlled Affiliates and Representatives to waive and not to exercise, in each case, to the fullest extent permissible under applicable Law, any rights of appraisal or rights to dissent from the Merger or any other similar rights that Holder may have (whether under any contract, pursuant to applicable Law or otherwise), including, without limitation, any rights arising under Section 262 of the DGCL; provided that nothing in this Section 2.7(b) shall restrict or prohibit Holder from asserting (x) its right to receive the Exchange Units in accordance with this Agreement, or (y) counterclaims or defenses in any Action or claim brought or asserted against it by Topco, Parent, Merger Sub, SLR, the Company or any of their respective Subsidiaries or Affiliates and each of their respective successors and assigns relating to this Agreement, the Merger Agreement or any of the other Transaction Documents, or from enforcing its rights under this Agreement.

(c) Communications. Holder (i) hereby consents to and authorizes the publication and disclosure by Topco, Parent, Merger Sub, SLR, the Company and any of their respective Affiliates in any press release, Form 8-K, the Proxy Statement or the Schedule 13E-3 (including all documents and schedules filed with the SEC) or other disclosure document required under applicable Law in connection with the Merger Agreement or the other Transaction Documents or the Contemplated Transactions, its identity and ownership of any Rollover Shares, the nature of its covenants, agreements, obligations, commitments, arrangements and understandings pursuant to this Agreement and such other information reasonably required under applicable Law in connection with such publication or disclosure (“Stockholder Information”), (ii) hereby agrees to cooperate with Topco, Parent, Merger Sub, SLR, the Company and their respective Affiliates and Representatives in connection with such filings, including providing Stockholder Information reasonably requested by Topco, Parent, Merger Sub, SLR, the Company or any of their respective Affiliates and Representatives and necessary in connection with such filings, and (iii) hereby agrees as promptly as practicable to notify Topco of any required corrections with respect to any written information supplied by Holder upon becoming aware that any such Stockholder Information is or shall have become false or misleading. Topco shall provide Holder with reasonable advance notice of and opportunity to review and comment on such draft documentation (or excerpts thereof to the extent related to Holder and its Affiliates) and consider all reasonable comments of Holder proposed in good faith regarding disclosure solely related to Holder and its Affiliates (it being understood that Topco, Parent, Merger Sub, SLR, the Company and their respective Affiliates shall not be deemed to be Affiliates of Holder).

(d) Bringdown Certificate. Holder hereby agrees to, on the Closing Date, upon the request of Topco, deliver to Topco a written certificate duly executed by Holder (or a duly authorized executive officer of Holder, if applicable) confirming and certifying that each of the representations and warranties of Holder set forth in Sections 5 and 6 hereof are true and correct in all respects; provided that Topco shall not make such request on more than one occasion.

(e) Joinder. Contemporaneously with the Rollover Closing, Holder will deliver to Topco a duly executed Joinder. For the avoidance of doubt, Topco will not be obligated to issue the Exchange Units hereunder until Holder delivers a duly executed Joinder to Topco.

(f) Confidentiality. Unless Holder is party to a comparable confidentiality or similar agreement with the Company, Holder agrees to, and agrees to cause its controlled Affiliates to, keep confidential all nonpublic information in their possession regarding the Company, Perceptive, SLR, Topco, Parent, Merger Sub or any of their respective Affiliates and representatives or regarding this Agreement, the Merger Agreement, the other Rollover Agreements and the other Transaction Documents and the transactions contemplated hereby and thereby (“Confidential Information”); provided, however, that such Persons shall not be required to maintain as confidential any Confidential Information that (a) becomes generally available to the public other than as a result of disclosure in violation of this Section 2.7(g) (i) by such Person or any of its Representatives or (ii) to the knowledge of such Person and its controlled Affiliates, by any other Person in violation of an obligation or duty of confidentiality, (b) is received by Holder or its controlled Affiliates after the date hereof from a third party who, to the knowledge of Holder or its applicable Affiliates, is not under an obligation of confidentiality or is not otherwise prohibited from transmitting such information by a contractual, legal or fiduciary obligation with the Company, Perceptive, SLR, Topco, Parent, Merger Sub or any of their respective Affiliates and representatives, (c) was or is independently developed by or on behalf of Holder or its controlled Affiliates without use of or reference to any Confidential Information, (d) such Person discloses in the ordinary course of Holder’s performance of its duties with the Company, Perceptive, SLR, Topco, Parent, Merger Sub or any of their respective Affiliates and representatives, or (e) such Person is required pursuant to the terms of a valid order issued, promulgated or entered by or with any Governmental Body of competent jurisdiction or pursuant to any other requirement of applicable Law (provided, that, with respect to this clause (e), such Person shall (A) to the extent legally permissible, prior to the disclosing of any Confidential Information, provide Topco with prompt notice of such order and provide reasonable assistance and cooperation (at Topco’s sole expense) with all reasonable efforts of Topco and/or its subsidiaries in obtaining a protective order or other remedy, (B) disclose such Confidential Information only to the extent required by such order and request confidential treatment thereof and (C) inform any such Governmental Body of the confidential nature of such Confidential Information). Notwithstanding the foregoing, (x) Holder and its controlled Affiliates and their respective Representatives may disclose any Confidential Information (1) to any regulatory agency, self-regulatory organization, governmental agency or examiner thereof in the course of any routine examinations, investigations, sweeps or inquiries, in each case, which does not specifically target the Company, Perceptive, SLR, Topco, Parent, Merger Sub or any of their respective Affiliates and representatives or the Confidential Information, or (2) if Holder is not a natural person, to its Affiliates, partners, investors, and its and their respective Representatives in connection with its normal informational or reporting activities, or (3) to comply with any obligations under any Organizational Documents or any other contract or arrangement with any limited partner, member or other equityholder of any fund managed, advised or controlled by Holder or any of its Affiliates or any of its or its Affiliates’ affiliated entities; provided, that, with respect to clauses (2) and (3) hereof, the recipients of such Confidential Information are subject to customary confidentiality and non-disclosure obligations, and (y) Holder and its controlled Affiliates may disclose Confidential Information as reasonably deemed necessary to enforce its rights and perform its obligations under this Agreement and/or any ancillary documents thereto.

(g) Topco A&R LLC Agreement. Prior to the Expiration Date, Holder shall negotiate in good faith, and use reasonably best efforts and cooperate with Topco and SLR with respect to the finalization of the Topco A&R LLC Agreement in form and substance consistent with the terms set forth in the Equity Term Sheet.

2.8 Contributions; Transfer of Rollover Shares. Immediately following the Rollover Closing, Topco shall contribute, assign, transfer, convey and deliver to Parent all of Topco’s interest in the Rollover Shares, and Parent shall (and Topco shall cause Parent to) accept and assume such contribution, assignment, transfer, conveyance and delivery.

Section 3. Representations and Warranties of Topco. Topco hereby represents and warrants to Holder as follows:

3.1 Organization. Topco is a limited liability company duly formed, validly existing and in good standing under the laws of the State of Delaware. Topco has all requisite limited liability company power and authority to own, lease and operate its properties and assets and to carry on its business as presently conducted, except to the extent that a failure of such power or authority would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on Topco’s ability to consummate the transactions contemplated herein.

3.2 Authority; Execution and Delivery. Topco has the requisite limited liability company or similar power and authority to execute and deliver this Agreement and any other agreements or instruments executed by it in connection herewith, perform its obligations herein and therein, and consummate the transactions contemplated hereby and thereby. Topco has duly executed and delivered this Agreement and any other agreements or instruments executed by it in connection herewith, and, assuming the execution and delivery by the other parties hereto and thereto, this Agreement and such other executed agreements or instruments are valid, legal and binding obligations of Topco, enforceable in accordance with their respective terms against Topco, except as such enforceability may be limited by (a) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other laws of general application relating to or affecting the enforcement of creditors’ rights and remedies, as from time to time may be in effect, and (b) application of equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) (the preceding clauses (a) and (b), collectively, the “Enforceability Exceptions”).

3.3 Common Units Duly Authorized; Capitalization. All of the Exchange Units to be issued to Holder pursuant to this Agreement, if and when issued and delivered in accordance with the provisions of this Agreement, will be duly authorized and validly issued Common Units of Topco, free and clear of any Liens (other than restrictions on transfer under the Securities Act or other applicable securities Laws or any Liens set forth in the Topco A&R LLC Agreement).

3.4 No Conflicts; No Consents. The execution and delivery of this Agreement by Topco does not, and the consummation of the transactions contemplated hereby will not (with or without the giving of notice or the lapse of time or both), (a) violate or conflict with or result in any default under any provision of the organizational documents of Topco or any of its subsidiaries, (b) violate any provision of any law, or any order, judgment or decree of any court or other governmental authority applicable to Topco or any of its subsidiaries or any of their respective assets or properties, or (c) violate or result in the cancellation, modification, revocation or suspension of any material license, franchise or permit held by Topco or any of its subsidiaries, unless, with respect to the foregoing clauses (b) and (c), such violation, cancellation, modification, revocation or suspension would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on Topco’s ability to consummate the transactions contemplated herein.

3.5 Certain Tax Matters. Neither Topco nor any of its subsidiaries has taken any action that would reasonably be expected to preclude application of the Intended Tax Treatment.

Section 4. Representations and Warranties of the Company. The Company hereby represents and warrants to Topco and Holder as follows:

4.1 Organization. The Company is a corporation duly formed, validly existing and in good standing under the laws of the State of Delaware. The Company has all requisite corporate power and authority to own, lease and operate its properties and assets and to carry on its business as presently conducted, except to the extent that a failure of such power or authority would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the Company’s ability to consummate the transactions contemplated herein.

4.2 Authority; Execution and Delivery. The Company has the requisite corporate power and authority to execute and deliver this Agreement and any other agreements or instruments executed by it in connection herewith, perform its obligations herein and therein, and consummate the transactions contemplated hereby and thereby. The Company has duly executed and delivered this Agreement and any other agreements or instruments executed by it in connection herewith, and, assuming the execution and delivery by the other parties hereto and thereto, this Agreement and such other executed agreements or instruments are valid, legal and binding obligations of the Company, enforceable in accordance with their respective terms against the Company, except as such enforceability may be limited by the Enforceability Exceptions.

4.3 No Conflicts; No Consents. The execution and delivery of this Agreement by the Company does not, and the consummation of the transactions contemplated hereby will not (with or without the giving of notice or the lapse of time or both), (a) violate or conflict with or result in any default under any provision of the organizational documents of the Company or any of its subsidiaries, (b) violate any provision of any law, or any order, judgment or decree of any court or other governmental authority applicable to the Company or any of its subsidiaries or any of their respective assets or properties, or (c) violate or result in the cancellation, modification, revocation or suspension of any material license, franchise or permit held by the Company or any of its subsidiaries, unless, with respect to the foregoing clauses (b) and (c), such violation, cancellation, modification, revocation or suspension would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the Company’s ability to consummate the transactions contemplated herein.

Section 5. Representations and Warranties of Holder. Holder hereby represents and warrants to Topco and the Company as of the date of this Agreement and as of the Rollover Closing as follows:

5.1 Residence; Organization; Good Standing. If Holder is a natural person, Holder’s signature page to this Agreement sets forth the country for which Holder is a citizen and the principal residence of Holder. In the event that Holder is not a natural person, Holder is a corporation, limited liability company or limited partnership duly incorporated, formed or organized, validly existing and in good standing under the laws of its jurisdiction of incorporation, formation or organization. Holder has all requisite power and authority to own, lease and operate its properties and assets and to carry on its business as presently conducted, except to the extent that a failure of such power or authority would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on Holder’s ability to consummate the transactions contemplated herein.

5.2 Ownership of the Rollover Shares. Holder is the sole record and beneficial owner of the Rollover Shares. Holder (or its nominee or custodian for the benefit of Holder) has sole voting power, sole power of disposition and sole power to issue instructions with respect to the matters set forth in Sections 2.6 and 2.7 herein and all other matters set forth in this Agreement, in each case with respect to all of the Rollover Shares with no limitations, qualifications or restrictions on such rights, subject to applicable securities laws and the terms of this Agreement. Except as permitted by this Agreement, the Rollover Shares and the certificates representing such Rollover Shares, if any, are now, and at all times prior to the Expiration Date will be, held by Holder, or by a nominee or custodian for the benefit of Holder, free and clear of any and all Liens, except for transfer restrictions of general applicability as may be provided under the Securities Act or other applicable securities Laws.

5.3 Authority; Execution and Delivery. In the event that Holder is a natural person, Holder has full legal capacity to execute and deliver this Agreement and any other agreements or instruments executed by it in connection herewith, perform its obligations herein and therein, and consummate the transactions contemplated hereby and thereby. In the event that Holder is not a natural person, Holder has the requisite power and authority to execute and deliver this Agreement and any other agreements or instruments executed by it in connection herewith, perform its obligations herein and therein, and consummate the transactions contemplated hereby and thereby. Holder has duly executed and delivered this Agreement and any other agreements or instruments executed by it in connection herewith, and, assuming the execution and delivery by the other parties hereto and thereto, this Agreement and such other executed agreements or instruments are valid, legal and binding obligations of Holder, enforceable in accordance with their respective terms against Holder, except as such enforceability may be limited by the Enforceability Exceptions.

5.4 Holder Intent. Holder is acquiring the Exchange Units for Holder’s own account as principal, for investment purposes only, not for any other person or entity and not for the purposes of resale, distribution subdivision or fractionalization thereof in violation of the Securities Act or any other applicable securities laws, and Holder has no present plans to enter into any contract, undertaking, agreement or arrangement for any such resale, distribution, subdivision or fractionalization. Holder is not acquiring the Exchange Units from Topco in a fiduciary capacity.

5.5 Financial Status. Holder is an “accredited investor” as such term is defined in Regulation D promulgated under the Securities Act and, immediately prior to the Rollover Closing, Holder will complete and deliver to Topco the Accredited Investor Questionnaire. Holder is able to bear the economic risk of an investment in the Exchange Units for an indefinite period of time, has adequate means of providing for its current financial needs and personal contingencies, understands that Holder may not be able to liquidate its investment in Topco in an emergency, if at all, and can afford a complete loss of the investment. Holder has such knowledge and experience in financial and business matters that Holder is capable of evaluating the merits and risks of such investment, is able to incur a complete loss of such investment and is able to bear the economic risk of such investment for an indefinite period of time. Any amounts invested in Topco by Holder, are not and will not be directly or indirectly derived from activities that contravene federal, state or international anti-money laundering laws.

5.6 No Conflicts; No Consents. The execution and delivery of this Agreement by Holder does not, and the consummation of the transactions contemplated hereby will not (with or without the giving of notice or the lapse of time or both), (a) in the event that Holder is not a natural person, violate or conflict with or result in any default under any provision of the organizational documents of Holder or any of its subsidiaries, (b) violate any provision of any law, or any order, judgment or decree of any court or other governmental authority applicable to Holder or, if Holder is not a natural person, any of its subsidiaries or any of their respective assets or properties, or (c) violate or result in the cancellation, modification, revocation or suspension of any material license, franchise or permit held by Holder or, if Holder is not a natural person, any of its subsidiaries, unless, with respect to the foregoing clauses (b) and (c), such violation, cancellation, modification, revocation or suspension would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on Holder’s ability to consummate the transactions contemplated herein.

5.7 No Litigation. There is no Action pending or, to the knowledge of Holder, threatened against Holder at law or in equity before or by any Governmental Body that questions the Beneficial Ownership or record ownership of Holder’s Rollover Shares, the validity of this Agreement or the performance by Holder of its obligations under this Agreement or that would reasonably be expected to impair in any material respect the ability of Holder to perform its obligations hereunder or to consummate the transactions contemplated hereby. Holder is not subject to any injunction, writ, judgment, decree, determination, ruling or other order of any kind or nature by any Governmental Body that would reasonably be expected to impair in any material respect the ability of Holder to perform its obligations hereunder or consummate the transactions contemplated hereby.

5.8 No Other Representation. Holder acknowledges and agrees that Holder (a) has made its own independent review and investigation into and, based thereon, has formed an independent judgment concerning, the business, assets, condition, operations and prospects of Topco and its subsidiaries, (b) has adequate access to such information, documents and other materials relating to Topco and its subsidiaries and their respective businesses and operations as it has deemed necessary to enable it to form such independent judgment, (c) has had such time as it deems necessary and appropriate to fully and completely review and analyze such information, documents and other materials and (d) has been provided an opportunity to ask questions of Topco with respect to such information, documents and other materials and has received satisfactory answers to such questions. Holder has received no other representations or warranties from Topco, the Company or any other person acting on behalf of Topco, the Company or any of their respective Affiliates, other than those contained in this Agreement and the Topco A&R LLC Agreement, and Holder disclaims reliance on any such other representations and warranties. Holder may have previously received presentations which include certain statements, estimates, targets and projections that reflect management’s assumptions concerning anticipated future performance of Topco, the Company or any of their respective subsidiaries. Holder understands and agrees that (i) such statements, estimates, targets and projections are based on significant assumptions and subjective judgments concerning anticipated results, which are inherently subject to risks, variability and contingencies, many of which are beyond the control of any such parties, and these assumptions and judgments may or may not prove to be correct and there can be no assurance that any projected results are attainable or will be realized, (ii) such statements, estimates, targets, projections or other forward-looking statements have been provided to assist in an evaluation of an investment in the Exchange Units, but are not to be viewed as factual and should not be relied upon as an accurate representation of future results, and (iii) actual results may differ materially from those in such statements, estimates, targets, projections or other forward-looking statements.

5.9 Certain Tax Matters. Holder has not taken any action and agrees not to take any action that would reasonably be expected to preclude application of the Intended Tax Treatment. The Holder is not and has not been a party to any binding agreement to, and does not have a current plan or intention to, sell, exchange or otherwise dispose of the Exchange Units.

Section 6. Agreements and Acknowledgements of Holder. Holder hereby agrees and acknowledges to Topco as of the date of this Agreement and as of the Rollover Closing as follows:

6.1 No Registration. Holder understands and agrees that the Exchange Units are being acquired by Holder in a transaction not involving any public offering within the meaning of the Securities Act, in reliance on an exemption therefrom, and that Topco is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgements and understanding set forth in this Agreement to determine the applicability of such exemptions and the suitability of Holder to acquire the Exchange Units. Holder understands that the Exchange Units have not been, and will not be, approved or disapproved by the Securities and Exchange Commission or by any other federal or state agency, and that no such agency has passed on the accuracy or adequacy of disclosures made to Holder by Topco or the Company. No federal or state governmental agency has passed on or made any recommendation or endorsement of the Exchange Units or an investment in Topco.

6.2 Limitations on Disposition and Resale. Holder understands and acknowledges that the Exchange Units (and any other equity interests in Topco) have not been and will not be registered under the Securities Act, or the securities laws of any state and, unless the Exchange Units (or any such other equity interests in Topco) are so registered, they may not be offered, sold, transferred or otherwise disposed of except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and any applicable securities laws of any state or foreign jurisdiction. Holder recognizes that there will not be any public trading market for the Exchange Units, and as a result, Holder may be unable to sell or dispose of its, his or her interest in Topco or liquidate its investment in Topco. Holder represents and warrants further that it has no contract, understanding, agreement or arrangement with any Person to offer, sell, transfer or otherwise dispose of any of the Exchange Units (in whole or in part) and Holder represents and warrants that it has no present plans to enter into any such contract, undertaking, agreement or arrangement. Holder understands that any certificate representing the Exchange Units will bear legends restricting the transfer thereof. Holder agrees not to engage in any hedging transactions with regard to the Exchange Units unless in compliance with the Securities Act.

6.3 Sole Consideration. Holder acknowledges and agrees that the Exchange Units shall constitute the sole consideration that Holder is entitled to receive in exchange for the contribution of the Rollover Shares to Topco pursuant to this Agreement.

6.4 No Fiduciary Duties. Holder understands and acknowledges that applicable Delaware law permits the members of a Delaware limited liability company to modify and even eliminate fiduciary duties of members and managers (i.e., directors or officers) of Topco and that the Topco A&R LLC Agreement will modify or, in certain cases, eliminate fiduciary duties of the members and managers (i.e., directors or officers) of Topco. Holder hereby releases, discharges and acquits the members and managers (i.e., directors or officers) of Topco from any claims based on fiduciary duties imposed by applicable law or equity unless and to the extent set forth in the Topco A&R LLC Agreement. In particular, and without limiting the foregoing, Holder, for itself and on behalf of its predecessors-in-interest and successors-in-interest, if applicable, acknowledges that the foregoing released claims include claims which it does not know or suspect exist, and hereby waives all rights which may exist under California Civil Code Section 1542, which provides as follows:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.

6.5 Brokers and Finders. No broker, finder or investment banker is entitled to any brokerage, finder’s or other similar fee or commission in connection with this Agreement, the Transaction Documents, the Merger or any of the other Contemplated Transactions based upon arrangements made or entered into by or on behalf of Holder.

6.6 Receipt; Reliance. Holder has received and reviewed a copy of the Merger Agreement. Holder understands and acknowledges that Parent and Merger Sub are entering into the Merger Agreement in reliance upon Holder’s execution, delivery and performance of this Agreement and the representations, warranties, covenants, obligations and other agreements of Holder contained herein.

6.7 Independent Investigation. Holder recognizes that the investment in Topco is speculative and involves a high degree of risk. Holder acknowledges and agrees that none of Topco, the Company or any of their respective Affiliates or Representatives is advising Holder as to any tax, legal, investment, accounting or regulatory matters in any jurisdiction, none of Topco, the Company or any of their respective Affiliates or Representatives shall have any responsibility or liability to Holder with respect thereto and none of Topco, the Company or any of their respective Affiliates or Representatives is making any representation or warranty as to the tax treatment of the Rollover Shares contemplated hereby. Holder acknowledges and agrees that it has consulted with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated by this Agreement, and none of Topco, the Company or any of their respective Affiliates or Representatives shall have responsibility or liability to Holder with respect thereto. Holder has had an opportunity (a) to question, and to receive information from Topco concerning Topco and its Subsidiaries and Holder’s direct or indirect, as applicable, investment in Topco and (b) to obtain any and all additional information necessary to verify the accuracy of any information which Holder deems relevant to make an informed investment decision as to the acquisition of the Exchange Units. Holder and its advisers have also been provided an opportunity to review and ask questions about the Topco A&R LLC Agreement.

Section 7. Marital Status. Holder hereby represents and warrants to Topco that he or she is not married and does not have a common law spouse or domestic partner as of the date hereof or at the Rollover Closing unless otherwise indicated on the Spousal Consent.

Section 8. Governing Law.

8.1 This Agreement will be governed by, and construed in accordance with, and all disputes arising out of or in connection with this Agreement shall be resolved under, the Laws of the State of Delaware, regardless of the Laws that might otherwise govern under applicable principles of conflicts of laws thereof.

8.2 Each of the parties hereto hereby (a) expressly and irrevocably submits to the exclusive personal jurisdiction of the Court of Chancery of the State of Delaware or, if such Court of Chancery lacks subject matter jurisdiction, the state or federal courts in the State of Delaware, in the event any dispute arises out of this Agreement or the transactions contemplated hereby, (b) 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 (c) agrees that it shall not bring any action relating to this Agreement or the transactions contemplated hereby, in any court other than the Court of Chancery of the State of Delaware or, if such Court of Chancery lacks subject matter jurisdiction, the state or federal courts in the State of Delaware; provided that each of the parties has the right to bring any action or proceeding for enforcement of a judgment entered by the aforementioned courts in any other court or jurisdiction.

8.3 Each party hereto irrevocably consents to the service of process outside the territorial jurisdiction of the courts referred to in Section 8.1 in any such action or proceeding by mailing copies thereof by registered United States mail, postage prepaid, return receipt requested, to its address as specified in or pursuant to Section 11. However, the foregoing will not limit the right of a party hereto to effect service of process on the other party by any other legally available method

Section 9. WAIVER OF JURY TRIAL. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION ARISING OUT OF, RELATING TO OR IN CONNECTION WITH THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATION OF THIS WAIVER, (III) EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND (IV) EACH OTHER PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.

Section 10. Specific Performance. Holder agrees that irreparable damage (for which monetary relief, even if available, would not be an adequate remedy) would occur in the event that any of the provisions of this Agreement were not performed by Holder in accordance with their specific terms or were otherwise breached. It is accordingly agreed that (a) Topco and the Company shall be entitled to seek an injunction or injunctions to prevent breaches of this Agreement by Holder hereto and to seek to enforce specifically the terms and provisions hereof against Holder in any court of competent jurisdiction without proof of damages or otherwise, and (b) the right of Topco and the Company to seek specific performance and other equitable relief is an integral part of the transaction and without that right, none of Topco or the Company would have entered into this Agreement. Holder hereby (i) waives any defense that a remedy at Law would be adequate, (ii) waives any requirement under any Law to post a bond or other security as a prerequisite to obtaining equitable relief, and (iii) agrees not to assert that a remedy of specific performance or other equitable relief is unenforceable, invalid, contrary to law or inequitable for any reason, and not to assert that a remedy of monetary damages would provide an adequate remedy or that the parties hereto otherwise have an adequate remedy at Law.

Section 11. Notices. All notices and other communications hereunder shall be deemed delivered and effective (a) when given personally, (b) on the third (3rd) Business Day after being mailed by first-class registered or certified mail, postage prepaid, (c) when sent via email (provided that no “bounce back” or other notice of non-delivery is generated), or (d) on the first Business Day following delivery to a reliable overnight courier service, courier fee prepaid, in any case at such address as may have been furnished to the other parties hereto, as the case may be, in writing by the applicable party hereto from time to time in accordance with the provisions of this Section 11:

(a) All notices to Topco shall be addressed as follows until Holder and the Company receive notice of a change of address in connection with a transfer or otherwise:

c/o Perceptive Advisors, LLC
51 Astor Place, 10th Floor
New York, NY 10003
Attention: James Mannix, COO
Email: james@perceptivelife.com

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

Cooley LLP
500 Boylston Street, 14th Floor
Boston, MA 02116-3736
Attention: Eric Blanchard; Amelia Runyan Davis
Email: eblanchard@cooley.com; arunyandavis@cooley.com

(b) All notices to the Company shall be addressed as follows until Topco and Holder receive notice of a change of address in connection with a transfer or otherwise:

c/o Vapotherm, Inc.
100 Domain Drive
Exeter, New Hampshire 03833
Attention: Joseph Army, CEO
Email: JArmy@vtherm.com

with copies (which shall not constitute notice) to:

Vapotherm, Inc.
100 Domain Drive
Exeter, New Hampshire 03833
Attention: James Lightman; John Landry
Email: JLightman@vtherm.com; Jlandry@vtherm.com

Ropes & Gray LLP
1211 Avenue of the Americas
New York, NY 10036
Attention:         Paul Kinsella; Sarah Young
Email:               paul.kinsella@ropesgray.com; sarah.young@ropesgray.com

(c) Notice to Holder shall be addressed to the address set forth on Holder’s signature page hereto until Topco and the Company receive notice of a change in address.

Section 12. Waiver. This Agreement and any term hereof may be changed, waived, discharged or terminated (either generally or in a particular instance and either retroactively or prospectively) only by an instrument in writing signed by the party hereto against which enforcement of such change, waiver, discharge or termination is sought.

Section 13. Amendment. This Agreement may not be amended, modified, waived or terminated except by an instrument in writing, signed by Topco; provided, however, any material amendment, modification, waiver or termination to the economic terms of the transactions contemplated under this Agreement relative to the other holders of Rollover Shares shall require the prior written consent of Holder.

Section 14. Assignment. No party hereto shall have the right or the power to assign or delegate any provision of this Agreement except with the prior written consent of the other parties hereto. Except as provided in the preceding sentence, this Agreement shall be binding upon and shall inure to the benefit of the parties’ respective successors, assigns, executors and administrators.

Section 15. Binding Effect; No Third-Party Beneficiaries. Nothing in this Agreement shall confer any rights upon any Person other than the parties hereto and each such party’s respective heirs, successors and permitted assigns, except as otherwise set forth herein.

Section 16. Counterparts. This Agreement may be executed in counterparts, including by facsimile or other means of electronic transmission (such as DocuSign, by electronic mail in “.pdf” form), each of which shall be deemed an original and all of which taken together, shall constitute one and the same document.

Section 17. Headings; Interpretive Matters. The headings in this Agreement are for purposes of reference only and shall not limit or otherwise affect the meaning or interpretation of any provision of this Agreement. Any reference to $ shall mean U.S. dollars, which is the currency used for all purposes in this Agreement. Any reference to the singular or to “him”, “her”, “it”, “itself”, or other like references, and references in the plural or the neuter, feminine or masculine reference, as the case may be, shall also, when the context so requires, be deemed to include the plural or singular, or the neuter, masculine or feminine reference, as the case may be. The words such as “herein,” “hereinafter,” “hereof” and “hereunder” that are used in this Agreement refer to this Agreement as a whole and not merely to a subdivision in which such words appear unless the context otherwise requires. The word “including” or any variation thereof means “including, without limitation” and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it. The parties hereto have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party hereto by virtue of the authorship of any provision of this Agreement. Any reference in this Agreement to a “day” or a number of “days” (without explicit reference to “Business Days”) shall be interpreted as a reference to a calendar day or number of calendar days. If any action is to be taken or given on or by a particular calendar day, and such calendar day is not a Business Day, then such action may be deferred until the next Business Day.

Section 18. Expenses. Except as otherwise provided herein, Holder agrees to pay any and all costs and expenses (including legal fees, costs and disbursements) incurred by Holder or any of its Affiliates in connection with this Agreement and the transactions contemplated hereby.

Section 19. No Ownership Interest. Nothing contained in this Agreement shall be deemed to vest in Topco or any of its Subsidiaries or Affiliates any direct or indirect ownership or incidence of ownership of or with respect to any Rollover Shares, in each case, prior to the Rollover Closing. Prior to the Rollover Closing, all ownership and economic benefits of and relating to the Rollover Shares shall remain vested in and belong to Holder.

Section 20. Severability. If any provision of this Agreement, or the application thereof to any party hereto or circumstance is held invalid or unenforceable, the remainder of this Agreement, and the application of such provision to other parties hereto or circumstances, shall not be affected thereby, and to such end, the provisions of this Agreement are agreed to be severable.

Section 21. Entire Agreement. This Agreement and the other Transaction Documents and the schedules and exhibits and other documents delivered by the parties hereto and thereto in connection herewith and therewith, contain the complete agreement among the parties hereto and thereto with respect to the transactions contemplated hereby and supersede all prior agreements and understandings between the parties hereto with respect hereto.

Section 22. Non-Recourse. Notwithstanding anything herein to the contrary, solely with respect to Topco, this Agreement may only be enforced against, and any claim or cause of action based upon, arising out of, or to the extent related to this Agreement may only be brought against Topco and its successors and assigns. Except as set forth in the immediately preceding sentence, no past, present or future director, officer, manager, employee, incorporator, member, partner, stockholder, equityholder, controlling Person, Affiliate, agent, attorney, advisor or representative of Topco, and no past, present or future director, officer, manager, employee, incorporator, member, partner, stockholder, equityholder, controlling person, Affiliate, agent, attorney, advisor or representative of any of the foregoing (each, a “Non-Recourse Party”) shall have any liability for any obligations or liabilities of Holder under this Agreement (whether in tort, contract or otherwise). The parties hereto acknowledge and agree that the Non-Recourse Parties are express third party beneficiaries of this Section 22, each of whom may enforce the provisions of this Section 22.

Section 23. Termination of Agreement. Holder’s obligation to acquire the Exchange Units, and Topco’s obligation to issue the Exchange Units to Holder, are subject to the subsequent consummation of the Merger. This Agreement and all rights and obligations of the parties hereto hereunder, including the proxy, shall commence on the date hereof and shall terminate upon the earliest to occur of (a) the mutual written agreement of Topco and Holder, and (b) the valid termination of the Merger Agreement pursuant to Article VII thereof; provided that, (i) nothing herein shall relieve any party hereto from liability for any intentional breach of this Agreement prior to such termination of this Agreement, and (ii) Section 8 through Section 22 hereof, which provisions and any claims or Actions in respect of the matters described in clause (i) of this proviso shall survive any termination of this Agreement.

Section 24. Intended Tax Treatment. Topco agrees to, and to cause its Affiliates to, use commercially reasonable efforts to take such actions (or not to take such actions) as may be necessary, in Topco’s good faith judgment, to achieve and to preserve the Intended U.S. Tax Treatment.

Section 25. Tax Reporting. Topco, the Company and Holder will not, and Topco and the Company will cause their respective Affiliates not to, take any position on any federal income Tax Return, or take any other reporting position (including on or with respect to any financial statements), that is inconsistent with the Intended U.S. Tax Treatment, unless otherwise required by a “final determination” (as defined in Section 1313(a)(1) of the Code or any similar provision of foreign, state or local law, as appropriate).

Section 26. Further Assurances. Holder will take such further actions as may be reasonably necessary to implement the transactions contemplated by this Agreement as requested by Topco. In furtherance of the foregoing, Holder agrees to execute any further instruments and take further action as Topco requests to effect the purposes of this Agreement.

Section 27. Survival of Representations and Warranties. All representations and warranties contained in this Agreement shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.

Section 28. No Limitation. Nothing in this Agreement shall be construed to prohibit Holder from taking any action (or failing to take any action) solely in Holder’s capacity as an officer or member of the Company Board or the Special Committee (including with respect to any Acquisition Proposal in accordance with the Merger Agreement). Holder is signing this Agreement solely in Holder’s capacity as the Beneficial Owner of (and/or authorized power of attorney in respect of) the Existing Shares listed in Schedule A hereto, and not in any other capacity, and this Agreement shall not limit or otherwise affect the actions (or failure to take any actions) of Holder or any director, employee or designee of Holder or any of its Affiliates, in each case solely in his or her capacity, if applicable, as an officer or director of the Company or any other Person.

[Signature pages follow]

IN WITNESS WHEREOF, the parties have hereby executed this Agreement as of the date first above written.

	TOPCO:

	VERONICA HOLDINGS, LLC


	By:
	Name:
	Title:

	COMPANY:

	VAPOTHERM, INC.


	By:
	Name:
	Title:

	HOLDER:

	By:

	Name:

	Rollover Shares:

	Address of Holder:







	Email Address of Holder:

Holder’s Country of Citizenship:

Schedule A

Holder; Rollover Shares

Holder	Rollover Shares	Exchange Common Units

	Existing Shares:

	Existing Shares:

	Existing Shares:

	Existing Shares:

	Existing Shares:

Exhibit 10.2

ROLLOVER AGREEMENT

This ROLLOVER AGREEMENT (this “Agreement”), dated as of June 17, 2024, is entered into by and among (i) Veronica Holdings, LLC, a Delaware limited liability company (“Topco”), (ii) Vapotherm, Inc., a Delaware corporation (the “Company”), and (iii) the person identified on the signature page hereto as Holder (“Holder”).

RECITALS

AGREEMENT

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

1.4 “Rollover Shares” means the Existing Shares.

Section 2. Rollover and Certain Agreements.

2.3 Rollover Closing Conditions (Topco). Topco’s obligation to issue the Exchange Units to Holder at the Rollover Closing pursuant to Section 2.1 is subject to the following conditions precedent:

(b) the representations and warranties of Holder under Section 5 and Section 6 herein shall be true and correct in all material respects when made and on the Closing Date;

(c) Holder shall have delivered to Topco a complete and duly executed Accredited Investor Questionnaire attached hereto as Exhibit B (the “Accredited Investor Questionnaire”);

(d) if Holder is an individual and is married or has a domestic partner, deliver the Spousal Consent attached hereto as Exhibit C, duly executed by such Holder’s spouse or domestic partner;

(e) Holder shall have delivered to Topco a duly executed Joinder to the Topco A&R LLC Agreement; and

(f) Holder shall have delivered to Topco a complete and duly executed IRS Form W‑9 or IRS Form W-8BEN (or other appropriate IRS Form W-8), as applicable.

(a) in favor of the adoption and approval of the Merger Agreement and the Merger;

2.5 Restrictions on Transfer.

2.6 Proxy.

2.7 Additional Agreements.

(a) Certain Events. In the event of any stock split, stock dividend, merger, reorganization, recapitalization or other change in the capital structure of the Company affecting the Rollover Shares or other securities or rights of the Company by Holder, (i) the type and number of Rollover Shares shall be adjusted appropriately, and (ii) this Agreement and the obligations of Holder hereunder shall automatically attach to any additional Rollover Shares or other securities or rights of the Company issued to or acquired by Holder.

(b) Waiver of Appraisal and Dissenters’ Rights and Actions. Holder hereby irrevocably and unconditionally (i) waives and agrees not to exercise, and covenants to cause its controlled Affiliates and Representatives to waive and not to exercise, in each case, to the fullest extent permissible under applicable Law, any rights of appraisal or rights to dissent from the Merger or any other similar rights that Holder may have (whether under any contract, pursuant to applicable Law or otherwise), including, without limitation, any rights arising under Section 262 of the DGCL, and (ii) waives and agrees not to commence or participate in, assist or knowingly encourage, and to take all actions necessary to opt out of (and covenants to cause its controlled Affiliates and Representatives not to commence or participate in, assist or knowingly encourage, and to take all actions necessary to opt out of), in each case, to the fullest extent permissible under applicable Law, any class in any class Action with respect to, any Action or claim, derivative or otherwise, against Topco, Parent, Merger Sub, SLR, the Company or any of their respective Subsidiaries or Affiliates and each of their respective successors and assigns, in each case, relating to the negotiation, execution or delivery of this Agreement, the Merger Agreement or the other Transaction Documents or the consummation of the Merger or any of the other Contemplated Transactions, including any claim (A) challenging the validity of, or seeking to enjoin the operation of, any provision of this Agreement or any other Transaction Document (including any claim seeking to enjoin or delay the closing of the Merger or any of the other Contemplated Transactions), or (B) alleging (1) a breach of any fiduciary duty of the Company Board, the Special Committee or any individual member thereof or any other Representative of the Company in connection with this Agreement, the Merger Agreement or the transactions contemplated hereby or thereby or (2) aiding and abetting any such breach of fiduciary duty against Topco, Parent, Merger Sub, SLR or any of their respective Subsidiaries and Affiliates or any of their respective Representatives; provided that nothing in this Section 2.7(b) shall restrict or prohibit Holder from asserting (x) its right to receive the Exchange Units in accordance with this Agreement, or (y) counterclaims or defenses in any Action or claim brought or asserted against it by Topco, Parent, Merger Sub, SLR, the Company or any of their respective Subsidiaries or Affiliates and each of their respective successors and assigns relating to this Agreement, the Merger Agreement or any of the other Transaction Documents, or from enforcing its rights under this Agreement.

Section 3. Representations and Warranties of Topco. Topco hereby represents and warrants to Holder as follows:

3.5 Certain Tax Matters. Neither Topco nor any of its subsidiaries has taken any action that would reasonably be expected to preclude application of the Intended Tax Treatment.

Section 4. Representations and Warranties of the Company. The Company hereby represents and warrants to Topco and Holder as follows:

Section 5. Representations and Warranties of Holder. Holder hereby represents and warrants to Topco and the Company as of the date of this Agreement and as of the Rollover Closing as follows:

Section 6. Agreements and Acknowledgements of Holder. Holder hereby agrees and acknowledges to Topco as of the date of this Agreement and as of the Rollover Closing as follows:

Section 8. Governing Law.

(a) All notices to Topco shall be addressed as follows until Holder and the Company receive notice of a change of address in connection with a transfer or otherwise:

c/o Perceptive Advisors, LLC
51 Astor Place, 10th Floor
New York, NY 10003
Attention: James Mannix, COO
Email: james@perceptivelife.com

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

Cooley LLP
500 Boylston Street, 14th Floor
Boston, MA 02116-3736
Attention:         Eric Blanchard; Amelia Runyan Davis
Email:      eblanchard@cooley.com; arunyandavis@cooley.com

(b) All notices to the Company shall be addressed as follows until Topco and Holder receive notice of a change of address in connection with a transfer or otherwise:

c/o Vapotherm, Inc.
100 Domain Drive
Exeter, New Hampshire 03833
Attention: Joseph Army, CEO
Email: JArmy@vtherm.com

with copies (which shall not constitute notice) to:

Vapotherm, Inc.
100 Domain Drive
Exeter, New Hampshire 03833
Attention: James Lightman; John Landry
Email: JLightman@vtherm.com; Jlandry@vtherm.com

Ropes & Gray LLP
1211 Avenue of the Americas
New York, NY 10036
Attention:         Paul Kinsella; Sarah Young
Email:         paul.kinsella@ropesgray.com; sarah.young@ropesgray.com

(c) Notice to Holder shall be addressed to the address set forth on Holder’s signature page hereto until Topco and the Company receive notice of a change in address.

[Signature pages follow]

IN WITNESS WHEREOF, the parties have hereby executed this Agreement as of the date first above written.

	TOPCO:

	VERONICA HOLDINGS, LLC


	By:
	Name:
	Title:

	COMPANY:

	VAPOTHERM, INC.


	By:
	Name:
	Title:

	HOLDER:

	By:

	Name:

Rollover Shares:

	Address of Holder:







	Email Address of Holder:

Holder’s Country of Citizenship:

Schedule A

Holder; Rollover Shares

Holder	Rollover Shares	Exchange Common Units

	Existing Shares:

	Existing Shares:

	Existing Shares:

	Existing Shares:

	Existing Shares:

Exhibit 10.3

Execution Version

ROLLOVER AGREEMENT

This ROLLOVER AGREEMENT (this “Agreement”), dated as of June 17, 2024, is entered into by and among (i) Veronica Holdings, LLC, a Delaware limited liability company (“Topco”), (ii) Veronica Intermediate Holdings, LLC, a Delaware limited liability company (“Parent” and together with Topco, each a “Parent Party” and, collectively, the “Parent Parties”) and (iii) each of the Persons identified as a Holder on the signature pages hereto (each, a “Holder” and collectively, the “Holders”). Each of Topco, Parent and the Holders are referred to herein collectively as the “Parties.”

RECITALS

WHEREAS, each of the Holders is a party to that certain Loan and Security Agreement, dated as of February 18, 2022 (as amended, modified or supplemented, from time to time, the “Loan Agreement”), by and among SLR Investment Corp., a Maryland corporation (“SLR”), as collateral agent thereunder, the Holders, including SLR, each in its respective capacity as a lender thereunder and each other lender party thereto from time to time, Vapotherm, Inc., a Delaware corporation (the “Company”), HGE Health Care Solutions, LLC, a Delaware limited liability company, Vapotherm Access Care Management Network, LLC, a Delaware limited liability company, and Vapotherm Access Management Services, LLC, an Oklahoma limited liability company, as guarantors thereunder and each other guarantor party thereto from time to time, pursuant to which, on the terms thereof and subject to the conditions therein, among other matters, the Holders have made Term Loans (as defined in the Loan Agreement) to the Company, including Term A Loan (as defined in the Loan Agreement) in the aggregate principal amount of $100,000,000.00 and Term B Loan (as defined in the Loan Agreement) in the aggregate principal amount of $4,000,000.00, and accrued an additional $14,427,491.93 of aggregate PIK Interest (as defined in the Loan Agreement) and other fees in the aggregate amount of (i) $5,912,749.19 accrued on the portion of the Term A Loan subject to the Indebtedness Rollover, (ii) $80,000 accrued on the Term B Loan and (iii) $2,980,000 related to the Remaining Loans, which, for the avoidance of doubt, has not been accrued, in each case, as of the date hereof;

WHEREAS, concurrently with the execution and delivery of this Agreement, Topco, the Company, Parent and Veronica Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), are entering into that certain Agreement and Plan of Merger (as amended, modified or supplemented, from time to time, the “Merger Agreement”), pursuant to which, on the terms thereof and subject to the conditions therein, among other matters, Merger Sub shall merge with and into the Company, with the Company surviving such merger (the “Merger”), and other than any Shares described in Section 2.1(b) of the Merger Agreement and any Dissenting Shares, all of the shares of common stock, $0.001 par value per share, of the Company (“Common Stock”) issued and outstanding and held by the stockholders of the Company as of immediately prior to the effectiveness of the Merger pursuant to the Merger Agreement (“Effective Time”) shall be converted into the right to receive consideration in the amount of $2.18 in cash (less applicable withholding) for each such share of Common Stock;

WHEREAS, (i) concurrently with the execution and delivery of this Agreement and the Merger Agreement, certain stockholders of the Company are entering into Stockholder Rollover Agreements with Topco pursuant to which, on the terms and subject to the conditions therein, such stockholders will contribute their respective Rollover Shares in exchange for Common Units in Topco (“Common Units”) having the rights and privileges described on Exhibit A (the “Equity Term Sheet”), and (ii) prior to the Closing, certain stockholders of the Company (such stockholders, together with the stockholders described in the preceding clause (i), the “Rolling Stockholders”) may enter into Additional Rollover Agreements with Topco pursuant to which, on the terms and subject to the conditions therein, such stockholders will contribute their respective Rollover Shares in exchange for Common Units having the rights and privileges described on the Equity Term Sheet;

WHEREAS, concurrently with the execution and delivery of this Agreement, the Company, the Holders and certain Affiliates of the Holders are entering into that certain Omnibus Warrant Amendment Agreement (as amended, modified or supplemented, from time to time, the “Warrant Amendment Agreement”), pursuant to which, on the terms thereof and subject to the consummation of the Merger, among other matters, the parties thereto shall amend the SLR Warrants that were issued in connection with the Loan Agreement to permit the contribution of such SLR Warrants by the Holders to Topco in each case, on the terms and subject to the conditions described herein, in the Warrant Amendment Agreement and the Merger Agreement;

WHEREAS, on the terms and subject to the conditions of this Agreement, each Holder desires, on the Closing Date and immediately prior to the Effective Time (but subject to the subsequent consummation of the Merger on the terms and subject to the conditions set forth in the Merger Agreement) (the “Rollover Closing”), to contribute, transfer and assign to Topco (a) a portion of Term A Loan set forth opposite the name of such Holder under the heading “Rollover Term A Loan Amount” on Schedule A attached hereto, which in the aggregate across all Holders is equal to $60,000,000.00 as of the date hereof, together with any additional loan amounts under Term A Loan that become outstanding (i) in the ordinary course or (ii) pursuant to the Loan Agreement or the other Loan Documents, in each case of the immediately preceding clauses (i) and (ii), after the date hereof and prior to the Rollover Closing as set forth in any amendment to Schedule A pursuant to Section 2.1 (collectively, the “Rollover Loans”), (b) the amount of the PIK Interest set forth opposite the name of such Holder under the heading “Rollover PIK Interest Amount” on Schedule A attached hereto, which in the aggregate across all Holders is equal to $14,427,491.93 as of the date hereof, together with any additional PIK Interest that accrues (i) in the ordinary course or (ii) pursuant to the Loan Agreement or the other Loan Documents, in each case of the immediately preceding clauses (i) and (ii), after the date hereof and prior to the Rollover Closing as set forth in any amendment to Schedule A pursuant to Section 2.1 (collectively, the “Rollover PIK Interest”), (c) the amount of all Final Fees and other fees, in each case, accrued under the Term A Loan, set forth opposite the name of such Holder under the heading “Rollover Accrued Fees Amount” on Schedule A attached hereto (but excluding any such fees that are included in the Remaining Loans (as defined and provided below)), which in the aggregate across all Holders is equal to $5,912,749.19 as of the date hereof, together with any additional Final Fees or other fees that, in each case, accrue under the Term A Loan (i) in the ordinary course or (ii) pursuant to the Loan Agreement or the other Loan Documents, in each case of the immediately preceding clauses (i) and (ii), after the date hereof and prior to the Rollover Closing as set forth in any amendment to Schedule A pursuant to Section 2.1 (collectively, the “Rollover Accrued Fees” and, together with the Rollover Loans and the Rollover PIK Interest, the “Rollover Indebtedness”, and the transactions described in the preceding clauses (a) through (c), the “Indebtedness Rollover”) and (d) the SLR Warrants set forth opposite such Holder’s name on Schedule A (as applicable, such Holder’s “Rollover Warrants”), together with any additional SLR Warrants that are issued to the Holders (i) in the ordinary course or (ii) pursuant to the Loan Agreement or the other Loan Documents, in each case of the immediately preceding clauses (i) and (ii), after the date hereof and prior to the Rollover Closing as set forth in any amendment to Schedule A delivered pursuant to Section 2.1 (the transactions described in this clause (d), the “Warrant Rollover”) in exchange for an aggregate number of Series A Preferred Units in Topco (the “Exchange Series A Preferred Units”) and Common Units (the “Exchange Common Units” and, together with the Exchange Series A Preferred Units, the “Exchange Units”), which, with respect to each Holder, shall have (x) with respect to each Exchange Series A Preferred Unit, a price per Series A Preferred Unit equal to $2.18 (which shall be the same price per Series A Preferred Unit in Topco paid by Parent Sponsor or its applicable Affiliates in connection with their investment in Topco on the Closing Date) and (y) with respect to each Exchange Common Unit, a price per Common Unit equal to $2.18 (which shall be the same price per Common Unit paid (or deemed to be paid, including through the contribution and exchange of Rollover Shares) by the Rolling Stockholders in connection with their investment in Topco on the Closing Date), and Topco desires, at such time, to issue to such Holder such Exchange Series A Preferred Units and Exchange Common Units in exchange for such Holder’s contribution, transfer and assignment to Topco of such Holder’s Rollover Indebtedness and Rollover Warrants;

WHEREAS, in connection with the Indebtedness Rollover, a portion of Term A Loan in an amount equal to $40,000,000, plus an amount of unaccrued and unpaid fees with respect to such portion of Term Loan A equal to $2,980,000, in each case, as of the date hereof (collectively, such principal and such unaccrued and unpaid fees, the “Remaining Loans”), shall not be included in the Rollover Loans and will remain outstanding following the Rollover Closing;

WHEREAS, subject to the provisions hereof, Parent acknowledges and agrees that, on the Closing Date and in connection with the consummation of the Merger, a portion of the commitment made by Parent Sponsor to Parent under the Equity Commitment Letter will be used by Parent to, among other things, (a) repay, or cause the Surviving Corporation to repay, in full the then-outstanding amount of Term B Loan (which, for the avoidance of doubt, includes any additional loan amounts under the Term B Loan that are issued under the Loan Agreement or any other Loan Document, or in the ordinary course after the date hereof and prior to the Rollover Closing), including any accrued interest, fees, costs and expenses with respect thereto in accordance with the terms of such Term B Loan in effect on the date hereof (collectively, the “Term B Loan Payoff Amount”), (b) pay the Total Merger Consideration pursuant to the Merger Agreement and (c) contribute additional funds to the Surviving Corporation’s available cash balances pursuant to Section 1.7 of the Merger Agreement, in each case, subject to the terms and conditions of the Equity Commitment Letter and the Merger Agreement;

WHEREAS, contemporaneously with the Rollover Closing (but subject to the subsequent consummation of the Merger on the terms and subject to the conditions set forth in the Merger Agreement), Topco, Parent Sponsor or its applicable Affiliates, each of the Holders (or their respective permitted assignees) and the Rolling Stockholders shall enter into an amended and restated limited liability company agreement of Topco that is mutually agreeable to each of them, which shall reflect, among other matters, the terms described on the Equity Term Sheet and the issuance of the Exchange Common Units and the Exchange Preferred Units as set forth herein (the “Topco A&R LLC Agreement”); and

WHEREAS, for United States federal income tax purposes, it is intended that the Indebtedness Rollover and the Warrant Rollover, taken together with the other contributions to Topco contemporaneous therewith, will be treated as a transfer governed by Section 351 of the Internal Revenue Code of 1986, as amended, to the fullest extent permitted under applicable Law (the “Intended Tax Treatment”).

AGREEMENT

Section 1. Definitions. Capitalized terms used but not defined herein shall have the respective meanings ascribed to such terms in the Merger Agreement. In addition, the following terms, as used in this Agreement, shall have the meanings set forth below:

1.1 “Beneficial Ownership” means, with respect to any Person, that such Person is deemed to, directly or indirectly beneficially own securities within the meaning assigned to such term in Rule 13d-3 adopted by the Securities and Exchange Commission under the Exchange Act, and a Person’s beneficial ownership of securities shall be calculated in accordance with the provisions of such Rule (in each case, irrespective of whether or not such Rule is actually applicable in such circumstance). For the avoidance of doubt, Beneficial Ownership shall also include record ownership of securities. The terms “Beneficially Own,” “Beneficially Owned” and “Beneficial Owner” shall have correlative meanings.

1.2 “Transfer” means, with respect to any Rollover Indebtedness or Rollover Warrants, directly or indirectly, to: (a) sell, transfer, gift, bequeath, exchange, offer, assign, pledge, encumber, subject to a Lien, hypothecate or otherwise dispose of (by merger, consolidation, share exchange, statutory division, statutory conversion, statutory domestication, by tendering into any tender or exchange offer, by testamentary disposition, by operation of law or otherwise), such Rollover Indebtedness or Rollover Warrant (as the case may be), (b) to enter into any contract, option or other agreement, arrangement or understanding with respect to any transaction described in the immediately preceding clause (a) of this definition or (c) enter into any swap, hedge, derivative or other arrangement that transfers to another Person, in whole or in part, any of the economic consequences of Beneficial Ownership of such Rollover Indebtedness or Rollover Warrants (as the case may be), whether settled by delivery of such Rollover Indebtedness or Rollover Warrants, or other securities, in cash or otherwise. The terms “Transferring”, “Transferee”, “Transferred” or similar words shall have correlative meanings to “Transfer.”

Section 2. Rollovers and Certain Agreements.

2.1 Rollover. On the terms and subject to the conditions set forth herein, (a) each Holder agrees, at the Rollover Closing, to contribute, transfer and assign to Topco such Holder’s Rollover Indebtedness and Rollover Warrants, in exchange for the issuance by Topco to such Holder of such Holder’s Exchange Series A Preferred Units and Exchange Common Units, and each Holder shall execute and deliver to Topco a counterpart signature page to the Topco A&R LLC Agreement and such other documents and instruments reasonably necessary to effect the Indebtedness Rollover and Warrant Rollover in accordance with the terms hereof, and (b) Topco agrees, at such time, to issue to such Holder such Holder’s Exchange Series A Preferred Units and Exchange Common Units, free and clear of all Liens (other than restrictions on transfer arising under the Securities Act or other applicable securities Laws or set forth in the Topco A&R LLC Agreement), in exchange for the contribution, transfer and assignment by such Holder to Topco of such Holder’s Rollover Indebtedness and Rollover Warrants, and shall execute and deliver to such Holder all documents and instruments reasonably necessary to effect such issuance, and in connection with the Indebtedness Rollover and the Warrant Rollover, each Holder’s Remaining Loans shall not be included in the Rollover Loans and will remain outstanding following the Rollover Closing. The number of Exchange Series A Preferred Units and Exchange Common Units that will be issued by Topco to each Holder at the Rollover Closing is set forth opposite such Holder’s name on Schedule A; provided, that to the extent that additional SLR Warrants are issued to the Holders (“Additional Rollover Warrants”), additional loan amounts under Term A Loan become outstanding under the Loan Agreement or additional PIK Interest, Final Fees or other fees, in each case, that accrue under the Term A Loan (such additional loan amounts, PIK Interest, Final Fees or other fees that are not otherwise included in the Remaining Loans, collectively, “Additional Rollover Indebtedness”), in each case, pursuant to the Loan Agreement or the other Loan Documents, or in the ordinary course during the period beginning after the date hereof and ending as of immediately prior to the Rollover Closing, (i) the Holders, Topco and Parent shall amend Schedule A in writing to reflect the Holders’ good faith calculation of (x) the resulting increased number of Rollover Warrants attributable to the issuance of any Additional Rollover Warrants, or increased amount of Rollover Loans, Rollover PIK Interest and Rollover Accrued Fees attributable to such Additional Rollover Indebtedness, and (y) the allocation of Series A Preferred Units and Common Units issuable to each Holder in exchange for such Holder’s Additional Rollover Warrants and/or Additional Rollover Indebtedness (as applicable), which determination shall be made in accordance with the methodology used to determine the number and combination of Series A Preferred Units and Common Units issuable to each Holder in exchange for such Holder’s Rollover Warrants and Rollover Indebtedness as set forth on Schedule A as of the date hereof, in each case of the immediately preceding clauses (x) and (y), as determined in accordance with this Section 2.1 by the Holders after good faith consultation with Topco. Notwithstanding anything herein to the contrary, (A) Topco and Parent shall promptly execute and deliver any such amendment that is delivered to Topco and Parent at least one day prior to the Closing Date, (B) neither Topco, Parent nor any of their respective Affiliates or representatives shall be permitted to contest or dispute such good faith calculations, and (C) to the extent there is any such disagreement or dispute, the Holders’ calculations shall control and SLR, on behalf of Topco, Parent, and the other Parties shall, subject to the Company’s consultation rights set forth in the SLR Financing Agreements (as defined in the Merger Agreement), be permitted to unilaterally amend Schedule A to reflect such calculations, in each case of the immediately preceding clauses (B) and (C), so long as such calculations are made in accordance with this Section 2.1, and (ii) at the Rollover Closing, Topco shall issue to each applicable Holder an additional number of Exchange Series A Preferred Units at a price per Series A Preferred Unit equal to $2.18 and Exchange Common Units at a price per Common Unit equal to $2.18, and such additional Exchange Series A Preferred Units and additional Exchange Common Units shall, collectively, have an aggregate value equal to the aggregate value of such Additional Rollover Indebtedness and Additional Rollover Warrants (taken together).

2.2 Rollover Closing. The consummation of the transactions contemplated hereby shall take place on the Closing Date immediately prior to the Effective Time, subject to the subsequent occurrence of the Closing (and, for avoidance of doubt, consummation of the Merger) in accordance with the Merger Agreement and subject to the satisfaction (or waiver by the applicable party) of the conditions to the Rollover Closing set forth in Section 2.3 or Section 2.4 herein (as applicable).

2.3 Rollover Closing Conditions (Holders). Each Holder’s obligation to consummate the contribution to Topco of such Holder’s Rollover Indebtedness and Rollover Warrants at the Rollover Closing pursuant to Section 2.1 is subject to the following conditions precedent:

(a)

each Parent Party shall have complied in all material respects with its respective obligations hereunder that are to be performed by such Parent Party (as applicable), on or prior to the Rollover Closing;

(b)

the representations and warranties of each Parent Party under Sections 3 and 4 (as applicable), shall be true and correct in all material respects when made and on the Closing Date;

(c)

the Closing being reasonably anticipated to occur immediately following the Rollover Closing on the terms contained in the Merger Agreement as in effect on the date hereof or as otherwise amended in accordance with Section 2.6;

(d)

the funding of the full amount of the Equity Financing to Parent (net of any fees and expenses of Parent Sponsor (or its applicable Affiliates) to be deducted therefrom pursuant to and in accordance with the Equity Commitment Letter and the Merger Agreement) being reasonably anticipated to occur at the Closing on the terms contained in the Equity Commitment Letter as in effect on the date hereof or as otherwise amended in accordance with Section 2.6; and

(e)

Parent shall have delivered to SLR duly executed counterpart signature pages to the Topco A&R LLC Agreement from (i) Parent Sponsor (or its applicable Affiliate(s)) and (ii) Topco.

2.4 Rollover Closing Conditions (Topco). Topco’s obligation to issue the Exchange Units to the Holders (or their respective permitted assignees) at the Rollover Closing pursuant to Section 2.1 is subject to the following conditions precedent:

(a)

each Holder shall have complied in all material respects with its obligations hereunder that are to be performed by such Holder (as applicable) on or prior to the Rollover Closing;

(b)

the representations and warranties of each Holder under Sections 5 shall be true and correct in all material respects when made and on the Closing Date;

(c)

(d)

SLR shall have delivered to Topco a duly executed counterpart signature pages to the Topco A&R LLC Agreement from each Holder.

2.5 Equity Financing. Subject to the provisions hereof, Parent acknowledges and agrees that, on the Closing Date and in connection with the consummation of the Merger, a portion of the commitment made by Parent Sponsor to Parent under the Equity Commitment Letter will be used by Parent to, among other things, (a) repay, or cause the Surviving Corporation to repay, in full the Term B Loan Payoff Amount, (b) pay the Total Merger Consideration pursuant to Section 2.8 of the Merger Agreement and (c) contribute additional funds to the Surviving Corporation’s available cash balances pursuant to Section 1.7 of the Merger Agreement, in each case, in accordance with the terms and conditions of the Equity Commitment Letter.

2.6 Transaction Documents.

(a) At any time prior to the consummation of the Merger, Topco and Parent shall not, and none of Topco or Parent shall permit any of their respective successors or assigns to, (i) amend, modify or waive any provision of the Merger Agreement or the Equity Commitment Letter without the prior written consent of SLR (not to be unreasonably withheld, conditioned or delayed) or (ii) enter into, amend, modify, waive or terminate any provision of any Rollover Agreement (other than this Agreement) or any other purchase agreement or subscription agreement for equity interests in Topco or its subsidiaries without the prior written consent of SLR (not to be unreasonably withheld, conditioned or delayed).

(b) At any time prior to the earlier of the consummation of the Merger and the valid termination of the Merger Agreement in accordance with its terms, except as otherwise provided for or permitted by this Agreement, the Merger Agreement or any of the other Transaction Documents or SLR Financing Agreements, the Holders shall not, and none of the Holders shall permit any of their respective Affiliates, successors or assigns to, amend, modify or waive any provision of the Loan Agreement or any other Loan Document without the prior written consent of Parent (not to be unreasonably withheld, conditioned or delayed); provided for the avoidance of doubt, the Holders may amend, modify or waive the Loan Agreement and any of the other Loan Documents without such prior written consent (i) to extend the maturity date thereunder (including in connection with any extension of the Outside Date under the Merger Agreement or in connection with the entry of, adoption of or promulgation of any Law, Action or Order that delays or prohibits, or purports to delay or prohibit, the consummation of the Closing), (ii) in connection with any pending or threatened Action under the Merger Agreement or any other Transaction Document or SLR Financing Agreement between Parent or any of its Affiliates, on the one hand, and the Company or any of its Affiliates, on the other hand (including any Action relating to Parent’s failure to consummate the Closing by the time required pursuant to Section 1.2 of the Merger Agreement), (iii) as required to comply with any applicable Law or Order, or (iv) to cure any event of default or breach under the Loan Agreement or any of the other Loan Documents; provided, that solely with respect to the immediately preceding clauses (iii) and (iv), the Holders shall (A) give Topco reasonably prompt written notice of such Law or Order (in the case of the immediately preceding clause (iii)) or event of default or breach (in the case of the immediately preceding clause (iv)), and (B) provide Topco with a reasonable opportunity to review and comment in good faith on such proposed amendment, modification or waiver (and the Holders shall consider any such reasonable comments in good faith).

2.7 Notification and Consultation. If Topco, Parent, Merger Sub or any of their respective Affiliates receives any notices, communications, filings or other documents (including, without limitation, any drafts thereof) from any third party (including the Company or the Rolling Stockholders) in connection with the Merger Agreement or any other Transaction Document or any of the Contemplated Transactions, Topco shall promptly (and in any event within 24 hours of receipt thereof) provide a copy thereof to SLR. If it is necessary or appropriate for any of Topco, Parent or Merger Sub (or their applicable Affiliates) to prepare, provide, file or submit any notice, communication, filing or document pursuant to the Merger Agreement or any other Transaction Document or in connection with any of the Contemplated Transactions, such Person shall provide (or cause its applicable Affiliate to provide) a draft thereof to SLR reasonably in advance of finalizing, submitting, issuing or releasing such notice, communication, filing or document to permit SLR and its representatives a reasonable amount of time to review and comment thereon and shall incorporate any reasonable comments proposed by SLR or any of its representatives prior to such finalization, submission, issuance or release. Without limiting the foregoing, (a) each of Topco, Parent and Merger Sub shall, and shall cause their respective Affiliates and its and their respective representatives to, reasonably consult in good faith with SLR, and take into consideration any suggestions, views or advice proposed by SLR in good faith, in connection with any actions, decisions or matters relating to any of the Transaction Documents or Contemplated Transactions involving Topco, Parent or Merger Sub (or their applicable Affiliates that are parties to the Transaction Documents), and (b) the foregoing provisions are intended to apply in respect of any regulatory filings (including, without limitation, filings with the SEC, such as any proxy statement, Schedule 13E-3 or Form 8-K) and public announcements or press releases relating to any of the Transaction Documents or the Contemplated Transactions. Nothing in this Section 2.7 requires any Person to disclose any such notices, filings or other documents to the extent (i) provision of such information would reasonably be expected to violate any of such disclosing Person’s or its Affiliates’ respective bona fide obligations of confidentiality under any applicable Contract or Law (other than any confidentiality obligations arising under the Merger Agreement or the Confidentiality Agreement), or (ii) that furnishing such information would in the reasonable opinion of such disclosing Person (after consulting outside counsel) result in loss of legal protection, including the attorney-client privilege and work product doctrine; provided, however, in each case of the immediately preceding clauses (i) and (ii), such Person will cooperate with SLR in good faith and use reasonable best efforts to permit disclosure of the applicable information to SLR to the extent it would not violate applicable Contracts or Laws or waiver of privilege. The Holders will promptly (and in any event within twenty four (24) hours) notify Parent in the event the Holders become aware of any violation or default by the Company or any of the Company’s Subsidiaries under the Loan Agreement or the other Loan Documents that would reasonably be expected to result in the failure of any condition to the obligations of Parent or Merger Sub to effect the Merger set forth in Article VI of the Merger Agreement.

2.8 Contributions; Cancellation of Rollover Warrants. Immediately following the consummation of the Rollover Closing, Topco shall contribute, assign, transfer, convey and deliver to Parent all of Topco’s right, title and interest in and to the Rollover Indebtedness, the Rollover Warrants and all of the Rollover Shares received by Topco pursuant to the other Rollover Agreements, and Parent shall accept and assume such contribution, assignment, transfer, conveyance and delivery (the “Topco Contribution”). Immediately following the Topco Contribution and the consummation of the Merger, Parent shall contribute, assign, transfer, convey, and deliver to the Surviving Corporation all of Parent’s right, title and interest in and to the Rollover Indebtedness and each of the Rollover Warrants to the Surviving Corporation pursuant to a contribution agreement, written consent or other document in form and substance reasonably satisfactory to SLR and Topco (the “Parent Contribution”). Immediately following the Parent Contribution, the Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) cancel and retire the Rollover Indebtedness and the Rollover Warrants (without any conversion thereof) and the Rollover Indebtedness and each of the Rollover Warrants will cease to exist, and no payment or distribution will be made with respect thereto.

2.9 Restrictions on Transfer. Except as expressly provided for in this Agreement (including, without limitation, Sections 2.1 and 13 hereof), each Holder hereby covenants and agrees that, prior to the earlier of the Rollover Closing and the valid termination of the Merger Agreement in accordance with its terms, such Holder shall not, directly or indirectly, (a) Transfer (or cause or permit the Transfer of), either voluntarily or involuntarily, or enter into any Contract, option or other arrangement or understanding with respect to the Transfer of any of the Rollover Indebtedness or Rollover Warrants, or, in each case, any interest therein, including, without limitation, any swap transaction, option, warrant, forward purchase or sale transaction, futures transaction, cap transaction, floor transaction, collar transaction or any other similar transaction (including any option with respect to any such transaction) or combination of any such transactions, in each case involving any of the Rollover Indebtedness or Rollover Warrants, (b) deposit any of the Rollover Indebtedness or Rollover Warrants into a voting trust or enter into a voting agreement or arrangement or grant any proxy or power of attorney with respect to the Rollover Indebtedness or Rollover Warrants that is inconsistent with such Holder’s obligations under this Agreement, or (c) commit or agree to commit (in each case, in any Contract) to take any of the actions referred to in the immediately preceding clauses (a) or (b). Any purported Transfer, act or omission in violation of this Section 2.9 shall be void ab initio and of no force or effect. This Agreement and the obligations hereunder shall be binding upon any Person to which legal or Beneficial Ownership of the Rollover Indebtedness or Rollover Warrants or any interest therein or rights with respect thereto shall pass, whether by operation of Law or otherwise, including, any Holder’s heirs, devisees, successors and assigns.

Section 3. Representations and Warranties of Topco. Topco hereby represents and warrants to the Holders as of the date of this Agreement and the Rollover Closing as follows (except to the extent any such representation and warranty expressly speaks of another date, in which case Topco makes such representation and warranty to the Holders as of such date):

3.3 Exchange Units; Capitalization. All of the Common Units and Series A Preferred Units to be issued to the Holders as contemplated by this Agreement, if and when issued and delivered in accordance with the terms of this Agreement, will be duly authorized and validly issued Common Units and Series A Preferred Units of Topco, free and clear of any Liens (other than restrictions on transfer under the Securities Act or other applicable securities Laws or set forth in the Topco A&R LLC Agreement). The offering and issuance of the Exchange Units has complied and will comply in all material respects with all applicable Laws. All of the Series A Preferred Units to be issued to the Holders (or their respective permitted assignees) pursuant this Agreement shall (a) be issued on the same economic terms as the Series A Preferred Units issued to Parent Sponsor or its Affiliates on the Closing Date, (b) afford SLR (or its applicable Affiliate(s)) the rights and privileges to be granted to SLR (or such Affiliate(s)) under the Topco A&R LLC Agreement (as described in the Equity Term Sheet) and (c) be issued at a price per Series A Preferred Unit equal to $2.18 and a price per Common Unit equal to $2.18. As of immediately following the consummation of the Closing, (i) SLR (taken together with its Affiliates) shall, collectively, hold at least sixty percent (60%) of the issued and outstanding Series A Preferred Units, (ii) the only holders of Series A Preferred Units will be the Holders (or their respective permitted assignees), Parent Sponsor (or its applicable Affiliates that subscribe for Series A Preferred Units on the Closing Date) and certain other Persons to subscribe for Series A Preferred Units on the Closing Date (as mutually agreed in writing between SLR and Topco) and (iii) there will be no issued and outstanding equity securities of Topco that are senior to the Series A Preferred Units. All of the Common Units to be issued to the Holders (or their respective permitted assignees) pursuant to this Agreement shall be issued on the same economic terms as Common Units issued to the Rolling Stockholders in accordance with the Rollover Agreements (other than this Agreement).

3.5 Additional Representations. Each of Topco, Parent and Merger Sub was formed in connection with the negotiation, execution and delivery of this Agreement, the Merger Agreement, the other Rollover Agreements and the other Transaction Documents and, other than in connection with the negotiation, execution and delivery of this Agreement, the Merger Agreement, the other Rollover Agreements and the other Transaction Documents, each of Topco, Parent and Merger Sub has not (a) conducted any business, (b) incurred any expenses, obligations or liabilities (whether accrued, absolute, contingent, unliquidated or otherwise), (c) owned any assets (other than Topco’s ownership of equity securities in Parent and Parent’s ownership of equity securities in Merger Sub), (d) entered into any contracts or agreements or (e) violated any applicable laws or governmental rules or regulations. Topco is a direct, wholly owned subsidiary of Parent Sponsor or its applicable Affiliates that subscribe for Series A Preferred Units on the Closing Date. Parent is a direct, wholly owned subsidiary of Topco. Merger Sub is a direct, wholly owned subsidiary of Parent.

3.6 Non-Reliance. Topco acknowledges and agrees that no Holder (in such capacity), or such Holder’s Affiliates or representatives, has made any representation or warranty, express or implied, to Topco with respect to the subject matter of this Agreement that is not set forth in this Agreement, the Topco A&R LLC Agreement or any other agreement entered into between such Holder and Topco and that Topco is not relying on any such representation or warranty that is not set forth herein or therein.

Section 4. Representations and Warranties of Parent. Parent hereby represents and warrants to the Holders as of the date of this Agreement and the Rollover Closing as follows (except to the extent any such representation and warranty expressly speaks of another date, in which case Parent makes such representation and warranty to the Holders as of such date):

4.1 Organization. Parent is a limited liability company duly formed, validly existing and in good standing under the laws of the State of Delaware. Parent has all requisite limited liability company power and authority to own, lease and operate its properties and assets and to carry on its business as presently conducted, except to the extent that a failure of such power or authority would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on Parent’s ability to consummate the transactions contemplated herein.

4.2 Authority; Execution and Delivery. Parent has the requisite limited liability company power and authority to execute and deliver this Agreement and any other agreements or instruments executed by it in connection herewith, perform its obligations herein and therein, and consummate the transactions contemplated hereby and thereby. Parent has duly executed and delivered this Agreement and any other agreements or instruments executed by it in connection herewith, and, assuming the execution and delivery by the other parties hereto and thereto, this Agreement and such other executed agreements or instruments are valid, legal and binding obligations of Parent, enforceable in accordance with its terms against Parent, except as such enforceability may be limited by the Enforceability Exceptions.

4.3 No Conflicts; No Consents. The execution and delivery of this Agreement by Parent does not, and the consummation of the transactions contemplated hereby will not (with or without the giving of notice or the lapse of time or both), (a) violate or conflict with or result in any default under any provision of the organizational documents of Parent or any of its subsidiaries, (b) violate any provision of any law, or any order, judgment or decree of any court or other governmental authority applicable Parent or any of its subsidiaries or any of their respective assets or properties, or (c) violate or result in the cancellation, modification, revocation or suspension of any material license, franchise or permit held by Parent or any of its subsidiaries, unless, with respect to the foregoing clauses (b) and (c), such violation, cancellation, modification, revocation or suspension would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on Parent’s ability to consummate the transactions contemplated herein.

4.4 Certain Tax Matters. Neither Topco nor any of its subsidiaries has taken any action that would reasonably be expected to preclude application of the Intended Tax Treatment.

4.5 Non-Reliance. Parent acknowledges and agrees that no Holder (in such capacity), or such Holder’s Affiliates or representatives, has made any representation or warranty, express or implied, to Parent with respect to the subject matter of this Agreement that is not set forth in this Agreement or any other agreement entered into between such Holder and Parent and that Parent is not relying on any such representation or warranty that is not set forth herein or therein.

Section 5. Representations and Warranties of the Holders. Each Holder hereby represents and warrants to Topco and Parent, severally and not jointly or jointly and severally, solely with respect to itself, as of the date of this Agreement and as of the Rollover Closing as follows (except to the extent any such representation and warranty expressly speaks of another date, in which case such Holder makes such representation and warranty to Topco and Parent as of such date):

5.1 Organization. Such Holder is a corporation, limited liability company or limited partnership duly incorporated, formed or organized, validly existing and in good standing under the laws of its jurisdiction of incorporation, formation or organization. Such Holder has all requisite corporate, limited liability company or limited partnership power and authority to own, lease and operate its properties and assets and to carry on its business as presently conducted, except to the extent that a failure of such power or authority would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on such Holder’s ability to consummate the transactions contemplated herein.

5.2 Ownership of the Rollover Warrants. Such Holder is the sole record and beneficial owner of such Holder’s Rollover Warrants, free and clear of all Liens, except for (a) transfer restrictions of general applicability as may be provided under the Securities Act or other applicable securities Laws and (b) transfer restrictions set forth in the Rollover Warrants or the Company Organizational Documents.

5.3 Authority; Execution and Delivery. Such Holder has the requisite corporate, limited liability company, limited partnership or similar power and authority to execute and deliver this Agreement and any other agreements or instruments executed by it in connection herewith, perform its obligations herein and therein, and consummate the transactions contemplated hereby and thereby. Such Holder has duly executed and delivered this Agreement and any other agreements or instruments executed by it in connection herewith, and, assuming the execution and delivery by the other parties hereto and thereto, this Agreement and such other executed agreements or instruments are valid, legal and binding obligations of such Holder, enforceable in accordance with its terms against such Holder, except as such enforceability may be limited the Enforceability Exceptions.

5.4 Holder Intent. Such Holder is acquiring such Holder’s Exchange Units for such Holder’s own account as principal, for investment purposes only, not for any other person or entity and not for the purposes of resale, distribution, subdivision or fractionalization thereof in violation of the Securities Act or any other applicable securities laws, and such Holder has no present plans to enter into any contract, undertaking, agreement or arrangement for any such resale, distribution, subdivision or fractionalization. Holder is not subscribing for such Holder’s Exchange Units from Topco in a fiduciary capacity.

5.5 Financial Status. Such Holder is an “accredited investor” as such term is defined in Regulation D promulgated under the Securities Act. Such Holder is able to bear the economic risk of an investment in of such Holder’s Exchange Units for an indefinite period of time, has adequate means of providing for its current financial needs and personal contingencies, understands that such Holder may not be able to liquidate its investment in Topco in an emergency, if at all, and can afford a complete loss of the investment. Such Holder has such knowledge and experience in financial and business matters that such Holder is capable of evaluating the merits and risks of such investment, is able to incur a complete loss of such investment and is able to bear the economic risk of such investment for an indefinite period of time.

5.6 No Conflicts; No Consents. The execution and delivery of this Agreement by such Holder does not, and the consummation of the transactions contemplated hereby will not (with or without the giving of notice or the lapse of time or both), (a) violate or conflict with or result in any default under any provision of the organizational documents of such Holder or any of its subsidiaries, (b) violate any provision of any law, or any order, judgment or decree of any court or other governmental authority applicable to such Holder or any of its subsidiaries or any of their respective assets or properties, or (c) violate or result in the cancellation, modification, revocation or suspension of any material license, franchise or permit held by such Holder or any of its subsidiaries, unless, with respect to the foregoing clauses (b) and (c), such violation, cancellation, modification, revocation or suspension would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on such Holder’s ability to consummate the transactions contemplated herein.

5.7 No Other Representation. Such Holder acknowledges and agrees that such Holder (a) has made its own independent review and investigation into and, based thereon, has formed an independent judgment concerning, the business, assets, condition, operations and prospects of Topco and its subsidiaries, (b) has adequate access to such information, documents and other materials relating to Topco and its subsidiaries and their respective businesses and operations as it has deemed necessary to enable it to form such independent judgment, (c) has had such time as it deems necessary and appropriate to review and analyze such information, documents and other materials and (d) has been provided an opportunity to ask questions of Topco with respect to such information, documents and other materials and has received satisfactory answers to such questions. Such Holder has received no other representations or warranties from Topco, Parent, the Company or any other person acting on behalf of Topco, Parent, the Company or any of their respective Affiliates, other than those contained in this Agreement and the Topco A&R LLC Agreement and any other Transaction Document (in each case, to the extent representations and warranties contained in such Transaction Documents are expressly made to the Holders or their respective Affiliates by Topco, Parent, the Company or the other applicable parties thereto), and such Holder disclaims reliance on any such other representations and warranties. Such Holder may have previously received presentations which include certain statements, estimates, targets and projections that reflect management’s assumptions concerning anticipated future performance of Topco, the Company or any of their respective subsidiaries. Such Holder understands and agrees that (i) such statements, estimates, targets and projections are based on significant assumptions and subjective judgments concerning anticipated results, which are inherently subject to risks, variability and contingencies, many of which are beyond the control of any such parties, and these assumptions and judgments may or may not prove to be correct and there can be no assurance that any projected results are attainable or will be realized, (ii) such statements, estimates, targets, projections or other forward-looking statements have been provided to assist in an evaluation of an investment in such Holder’s Exchange Units, but are not to be viewed as factual and should not be relied upon as an accurate representation of future results, and (iii) actual results may differ materially from those in such statements, estimates, targets, projections or other forward-looking statements.

Section 6. Agreements and Acknowledgements of the Holders. Each Holder agrees and acknowledges to the Parent Parties, severally and not jointly or jointly and severally, solely with respect to itself, as of the date of this Agreement and as of the Rollover Closing as follows:

6.1 No Registration. Such Holder understands and agrees that such Holder’s Exchange Units are being acquired by such Holder in a transaction not involving any public offering within the meaning of the Securities Act, in reliance on an exemption therefrom, and that Topco is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgements and understanding set forth in this Agreement to determine the applicability of such exemptions and the suitability under the Securities Act of such Holder to acquire the Exchange Units. Such Holder understands that the Exchange Units have not been, and will not be, approved or disapproved by the Securities and Exchange Commission or by any other federal or state agency, and that no such agency has passed on the accuracy or adequacy of disclosures made to such Holder by Topco or Parent. No federal or state governmental agency has passed on or made any recommendation or endorsement of such Holder’s Exchange Units or an investment in Topco.

6.2 Limitations on Disposition and Resale. Such Holder understands and acknowledges that such Holder’s Exchange Units have not been and will not be registered under the Securities Act, or the securities laws of any state and, unless such Holder’s Exchange Units are so registered, they may not be offered, sold, transferred or otherwise disposed of except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and any applicable securities laws of any state or foreign jurisdiction. Such Holder recognizes that there will not be any public trading market for the Exchange Units, and as a result, such Holder may be unable to sell or dispose of its, his or her interest in Topco or liquidate its investment in Topco. Such Holder represents and warrants further that, other than this Agreement and the other Transaction Documents and the SLR Financing Agreements, it has no contract, understanding, agreement or arrangement with any Person to offer, sell, transfer or otherwise dispose of any of the Exchange Units (in whole or in part), and such Holder represents and warrants that (other than the transactions contemplated by this Agreement, the other Transaction Documents and the SLR Financing Agreements) it has no present plans to enter into any such contract, undertaking, agreement or arrangement. Such Holder agrees not to engage in any hedging transactions with regard to the Exchange Units unless in compliance with the Securities Act.

6.3 Newly Formed Entity. Such Holder recognizes that the investment in Topco is speculative and involves a high degree of risk.

6.4 Sole Consideration. Such Holder acknowledges and agrees that such Holder’s Exchange Units shall constitute the sole consideration that such Holder is entitled to receive in exchange for or upon conversion of such Holder’s Rollover Indebtedness and Rollover Warrants.

6.5 Brokers and Finders. Neither such Holder nor anyone acting on such Holder’s behalf has paid any brokers’ or finders’ fees or commission to any Person in connection with the acquisition of the Exchange Units for which Topco or any of its subsidiaries would reasonably be expected to be liable following the Closing.

6.6 Independent Investigation. Such Holder acknowledges and agrees that none of Topco, Parent or any of their respective Affiliates or Representatives is advising such Holder as to any tax, legal, investment, accounting or regulatory matters in any jurisdiction, none of Topco, Parent or any of their respective Affiliates or Representatives shall have any responsibility or liability to such Holder with respect thereto and none of Topco, Parent or any of their respective Affiliates or Representatives is making any representation or warranty as to the tax treatment of the Indebtedness Rollover or the contribution of the Rollover Warrants contemplated hereby. Such Holder acknowledges and agrees that it has consulted with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated by this Agreement, and none of Topco, Parent or any of their respective subsidiaries, Affiliates or Representatives shall have responsibility or liability to such Holder with respect thereto.

6.7 Certain Tax Matters. Such Holder has not taken any action and agrees not to take any action that would reasonably be expected to preclude application of the Intended Tax Treatment. Such Holder is not and has not been a party to any binding agreement to, and does not have a current plan or intention to, sell, exchange or otherwise dispose of the Exchange Units

Section 7. Governing Law.

7.1 This Agreement will be governed by, and construed in accordance with, and all disputes arising out of or in connection with this Agreement shall be resolved under, the Laws of the State of Delaware, regardless of the Laws that might otherwise govern under applicable principles of conflicts of laws thereof.

7.2 Each of the parties hereto hereby (a) expressly and irrevocably submits to the exclusive personal jurisdiction of the Court of Chancery of the State of Delaware or, if such Court of Chancery lacks subject matter jurisdiction, the state or federal courts in the State of Delaware, in the event any dispute arises out of this Agreement or the transactions contemplated hereby, (b) 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 (c) agrees that it shall not bring any action relating to this Agreement or the transactions contemplated hereby, in any court other than the Court of Chancery of the State of Delaware or, if such Court of Chancery lacks subject matter jurisdiction, the state or federal courts in the State of Delaware; provided that each of the parties has the right to bring any action or proceeding for enforcement of a judgment entered by the aforementioned courts in any other court or jurisdiction.

7.3 Each party hereto irrevocably consents to the service of process outside the territorial jurisdiction of the courts referred to in Section 7.1 in any such action or proceeding by mailing copies thereof by registered United States mail, postage prepaid, return receipt requested, to its address as specified in or pursuant to Section 10. However, the foregoing will not limit the right of a party hereto to effect service of process on the other party by any other legally available method

Section 8. WAIVER OF JURY TRIAL. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION ARISING OUT OF, RELATING TO OR IN CONNECTION WITH THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATION OF THIS WAIVER, (III) EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND (IV) EACH OTHER PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.

Section 9. Specific Performance. The parties hereto agree that irreparable damage (for which monetary relief, even if available, would not be an adequate remedy) would occur in the event that any of the provisions of this Agreement were not performed by the parties hereto in accordance with their specific terms or were otherwise breached. It is accordingly agreed that (a) the Parties and any third party beneficiaries hereof shall be entitled to seek an injunction or injunctions to prevent breaches of this Agreement and to seek to enforce specifically the terms and provisions hereof in any court of competent jurisdiction without proof of damages or otherwise, and (b) the right to seek specific performance and other equitable relief is an integral part of the transaction and without that right, none of Topco, Parent or the Holders would have entered into this Agreement. Each of the Parties hereby (i) waives any defense that a remedy at Law would be adequate, (ii) waives any requirement under any Law to post a bond or other security as a prerequisite to obtaining equitable relief, and (iii) agrees not to assert that a remedy of specific performance or other equitable relief is unenforceable, invalid, contrary to law or inequitable for any reason, and not to assert that a remedy of monetary damages would provide an adequate remedy or that the parties hereto otherwise have an adequate remedy at Law.

Section 10. Notices. All notices and other communications hereunder from Topco or Parent, on the one hand, to any of the Holders, on the other hand, or vice versa, shall be deemed delivered and effective (a) when given personally, (b) on the third (3rd) Business Day after being mailed by first-class registered or certified mail, postage prepaid, (c) when sent via email (provided that no “bounce back” or other notice of non-delivery is generated), or (d) on the first Business Day following delivery to a reliable overnight courier service, courier fee prepaid, in any case at such address as may have been furnished to Topco, Parent or any of the Holders, as the case may be, in writing by Topco, Parent or such Holder from time to time in accordance with the provisions of this Section 10.

(a) All notices to any of Topco or Parent shall be addressed as follows until the Holders receive notice of a change of address in connection with a transfer or otherwise:

c/o Perceptive Advisors, LLC
51 Astor Place, 10^th Floor
New York, NY 10003
Attention: James Mannix
Email: james@perceptivelife.com

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

Cooley LLP
500 Boylston Street, 14^th Floor
Boston, MA 02116-3736
Attention: Eric Blanchard; Amelia Runyan Davis
Email: eblanchard@cooley.com; arunyandavis@cooley.com

(b) Notice to the Holders shall be addressed as follows until Topco receives notice of a change in address:

SLR Investment Corp.
500 Park Avenue, 3rd Floor
New York, NY 10022
Attention: Anthony Storino

Edan Yacobovsky

Email: astorino@slrcp.com

eyacobovsky@slrcp.com

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

Latham & Watkins LLP
1271 Avenue of the Americas
New York, NY 10020
Attention: Haim Zaltzman

Daniel Mun

Email: haim.zaltzman@lw.com

daniel.mun@lw.com

Section 11. Waiver. This Agreement and any term hereof may be changed, waived, discharged or terminated (either generally or in a particular instance and either retroactively or prospectively) only by an instrument in writing signed by the party hereto against which enforcement of such change, waiver, discharge or termination is sought.

Section 12. Amendment. Without limiting the Parties’ respective obligations to amend Schedule A pursuant to Section 2.1 (or SLR’s right to amend Scheduled A pursuant to clause (C) of Section 2.1), this Agreement may not be amended, modified, waived or terminated except by an instrument in writing, signed by Topco and SLR.

Section 13. Assignment. No party hereto shall have the right or the power to assign or delegate any provision of this Agreement except with the prior written consent of Topco, in the case of an assignment or delegation by any Holder, or with the prior written consent of the Holders, in the case of an assignment or delegation by Topco or Parent; provided, that each Holder may Transfer its Rollover Indebtedness or Rollover Warrants, and/or assign its rights to receive the Exchange Units issuable to such Holder at the Rollover Closing pursuant to Section 2.1, to such Holder’s Affiliates; provided, further, that no such Transfer or assignment shall relieve the applicable assigning Holder of its obligations hereunder. Except as provided in the preceding sentence, this Agreement shall be binding upon and shall inure to the benefit of the parties’ respective successors, assigns, executors and administrators.

Section 14. Binding Effect; No Third-Party Beneficiaries. Except as expressly set forth in the SLR Financing Agreements, nothing in this Agreement shall confer any rights upon any Person other than the parties hereto and each such party’s respective heirs, successors and permitted assigns, except as otherwise set forth herein.

Section 15. Counterparts. This Agreement may be executed in counterparts, including by facsimile or other means of electronic transmission (such as by DocuSign, electronic mail in “.pdf” form), each of which shall be deemed an original and all of which taken together, shall constitute one and the same document.

Section 16. Headings; Interpretive Matters. The headings in this Agreement are for purposes of reference only and shall not limit or otherwise affect the meaning or interpretation of any provision of this Agreement. Any reference to $ shall mean U.S. dollars, which is the currency used for all purposes in this Agreement. Any reference to the singular or to “him”, “her”, “it”, “itself”, or other like references, and references in the plural or the neuter, feminine or masculine reference, as the case may be, shall also, when the context so requires, be deemed to include the plural or singular, or the neuter, masculine or feminine reference, as the case may be. The words such as “herein,” “hereinafter,” “hereof” and “hereunder” that are used in this Agreement refer to this Agreement as a whole and not merely to a subdivision in which such words appear unless the context otherwise requires. The word “including” or any variation thereof means “including, without limitation” and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it. The parties hereto have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party hereto by virtue of the authorship of any provision of this Agreement. Any reference in this Agreement to a “day” or a number of “days” (without explicit reference to “Business Days”) shall be interpreted as a reference to a calendar day or number of calendar days. If any action is to be taken or given on or by a particular calendar day, and such calendar day is not a Business Day, then such action may be deferred until the next Business Day.

Section 17. Severability. If any provision of this Agreement, or the application thereof to any party hereto or circumstance is held invalid or unenforceable, the remainder of this Agreement, and the application of such provision to other parties hereto or circumstances, shall not be affected thereby, and to such end, the provisions of this Agreement are agreed to be severable.

Section 18. Entire Agreement. This Agreement, the Merger Agreement, the Equity Commitment Letter, the Warrant Amendment Agreement and the Loan Agreement and the schedules and exhibits and other documents delivered by the parties hereto and thereto in connection herewith and therewith, contain the complete agreement among the parties hereto and thereto with respect to the transactions contemplated hereby and supersede all prior agreements and understandings between the parties hereto with respect hereto.

Section 19. Non-Recourse. Notwithstanding anything herein to the contrary, this Agreement may only be enforced against, and any claim or cause of action based upon, arising out of, or to the extent related to this Agreement may only be brought against the entities that are expressly parties hereto and their respective successors and assigns. Except as set forth in the immediately preceding sentence, no past, present or future director, officer, manager, employee, incorporator, member, partner, stockholder, equityholder, controlling Person, Affiliate, agent, attorney, advisor or representative of any party hereto, and no past, present or future director, officer, manager, employee, incorporator, member, partner, stockholder, equityholder, controlling person, Affiliate, agent, attorney, advisor or representative of any of the foregoing (each, a “Non-Recourse Party”) shall have any liability for any obligations or liabilities of any Party under this Agreement (whether in tort, contract or otherwise). The Parties acknowledge and agree that the Non-Recourse Parties are express third party beneficiaries of this Section 19, each of whom may enforce the provisions of this Section 19.

Section 20. Public Announcements. Each of the Holders, on the one hand, and the Parent Parties, on the other hand, shall not, shall cause each of their Subsidiaries not to, and shall direct their respective controlled Affiliates and Representatives not to, issue any press release or announcement concerning the Contemplated Transactions without the prior consent of SLR (in the case of any such press release or announcement to be made by the Parent Parties or their Affiliates or Representatives) or Topco (in the case of any such press release or announcement to be made by the Holders or their Affiliates or Representatives), except any release or announcement required by applicable Law or any rule or regulation of the Nasdaq Global Select Market or any stock exchange to which the relevant Party (or such Party’s applicable Affiliate or Representative) is subject, in which case such Party (or its applicable Affiliate or Representative) required to make the release or announcement shall use reasonable best efforts to allow the other Parties reasonable time to comment on such release or announcement in advance of such issuance and shall consider in good faith the comments of the applicable Party (or such Party’s applicable Affiliate or Representative) therein. The restrictions of this Section 20 do not apply to any press release or announcement made by any of the Parties or their Affiliates to the extent that such press release or announcement is consistent with any press release or announcement previously made in compliance with this Section 20, so long as any such press release or announcement remains true and correct in all material respects and the other Parties have not requested in writing that the party that initially made such press release or announcement discontinue the use or public communication of such press release or announcement. Notwithstanding the foregoing, each Party and its respective Affiliates may provide ordinary course communications regarding this Agreement and the Contemplated Transactions to existing or prospective general and limited partners, equity holders, members, managers and investors of any Affiliates of such Person, in each case, who are subject to customary confidentiality restrictions.

Section 21. Termination of Agreement. The Holder’s obligation to contribute the Rollover Indebtedness and Rollover Warrants to Topco at the Rollover Closing pursuant to Section 2.1, and Topco’s obligation to issue the Exchange Units to the Holders (or their respective permitted assignees) at the Rollover Closing pursuant to Section 2.1, are, in each case, subject to the subsequent consummation of the Merger in accordance with the terms of the Merger Agreement (as described in Sections 2.3(c) and 2.4(c)). This Agreement (other than Sections 7 to 21) shall terminate automatically, without further action by the parties hereto and immediately upon valid termination of the Merger Agreement in accordance with its terms prior to the Effective Time. Upon such termination, this Agreement (other than Sections 7 to 21) shall not have any further force and effect and no party hereto shall have any further liability or obligation hereunder; provided that termination of this Agreement shall not relieve any party hereto from liabilities or damages arising out of its intentional breach of this Agreement by such party hereto prior to the time of termination, and each other party hereto will be entitled to any remedies at law or in equity to recover losses arising from such breach.

Section 22. Intended Tax Treatment. Topco and Parent agree to, and to cause their respective Affiliates to, use commercially reasonable efforts to take such actions (or not to take such actions) as may be necessary, in Topco’s or Parent’s good faith judgment, to achieve and to preserve the Intended Tax Treatment.

Section 23. Tax Reporting. Topco, Parent and each of the Holders will not, and Topco, Parent and each of the Holders will cause their respective Affiliates not to, take any position on any federal income Tax Return, or take any other reporting position (including on or with respect to any financial statements), that is inconsistent with the Intended Tax Treatment, unless otherwise required by a “final determination” (as defined in Section 1313(a)(1) of the Internal Revenue Code of 1986, as amended, or any similar provision of foreign, state or local law, as appropriate) or as otherwise required by applicable Law.

Section 24. Withholding. In the event Topco, Parent, the Company, or any of their respective subsidiaries or Affiliates are required to deduct and withhold any Taxes in respect of Rollover PIK Interest or Rollover Accrued Fees (or any Tax authority takes the position that any such deduction or withholding was required), the Holders shall pay an amount in cash to Topco equal to such amounts as are required to be withheld and shall otherwise indemnify and hold harmless Topco, Parent, the Company, and any of their respective subsidiaries or Affiliates against any Liability for any such withholding Taxes.

Section 25. Further Assurances. Topco, Parent and each of the Holders will take such further actions as may be reasonably necessary to implement the transactions contemplated by this Agreement.

Section 26. Survival of Representations and Warranties. All representations and warranties contained in this Agreement shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.

Section 27. Other Acknowledgement. Each Parent Party acknowledges and agrees that, notwithstanding anything contained in any of the Transaction Documents or the SLR Financing Agreements to the contrary, SLR, the other Holders and their respective Affiliates may provide ordinary course communications regarding the Transaction Documents, the SLR Financing Agreements and the Contemplated Transactions to existing or prospective general and limited partners, equityholders, members, managers and investors of any Affiliates of such Person, in each case, who are subject to customary confidentiality restrictions.

[Signature pages follow]

IN WITNESS WHEREOF, the parties have hereby executed this Agreement as of the date first above written.

	TOPCO:

	VERONICA HOLDINGS, LLC




	By:
	Name:
	Title:

	PARENT:

	VERONICA INTERMEDIATE HOLDINGS, LLC




	By:
	Name:
	Title:

	HOLDERS:

	SLR INVESTMENT CORP., as Collateral Agent and a Lender


	By:
	Name: Anthony Storino
	Title: Authorized Signatory

	SCP PRIVATE CREDIT INCOME FUND L.P., as a Lender


	By:
	Name: Anthony Storino
	Title: Authorized Signatory

	SCP PRIVATE CREDIT INCOME FUND SPV LLC, as a Lender


	By:
	Name: Anthony Storino
	Title: Authorized Signatory

	SCP PRIVATE CREDIT INCOME BDC LLC, as a Lender


	By:
	Name: Anthony Storino
	Title: Authorized Signatory

	SCP PRIVATE CREDIT INCOME BDC SPV LLC, as a Lender


	By:
	Name: Anthony Storino
	Title: Authorized Signatory

	SCP PRIVATE CORPORATE LENDING FUND L.P., as a Lender


	By:
	Name: Anthony Storino
	Title: Authorized Signatory

	SCP PRIVATE CORPORATE LENDING FUND SPV LLC, as a Lender


	By:
	Name: Anthony Storino
	Title: Authorized Signatory

	SCP CAYMAN DEBT MASTER FUND, L.P., as a Lender


	By:
	Name: Anthony Storino
	Title: Authorized Signatory

	SCP CAYMAN DEBT MASTER FUND SPV LLC, as a Lender


	By:
	Name: Anthony Storino
	Title: Authorized Signatory

	SCP SF DEBT FUND L.P., as a Lender


	By:
	Name: Anthony Storino
	Title: Authorized Signatory

	SLR CP SF DEBT FUND SPV LLC, as a Lender


	By:
	Name: Anthony Storino
	Title: Authorized Signatory

	SLR HC ONSHORE FUND L.P., as a Lender


	By:
	Name: Anthony Storino
	Title: Authorized Signatory

	SLR HC FUND SPV LLC, as a Lender


	By:
	Name: Anthony Storino
	Title: Authorized Signatory

	SLR HC BDC LLC, as a Lender


	By:
	Name: Anthony Storino
	Title: Authorized Signatory

	SLR HC BDC SPV LLC, as a Lender


	By:
	Name: Anthony Storino
	Title: Authorized Signatory

Exhibit 10.4

VOTING AND SUPPORT AGREEMENT

THIS VOTING AND SUPPORT AGREEMENT (this “Agreement”) is made and entered into as of June 17, 2024, by and between (i) Veronica Intermediate Holdings, LLC, a Delaware limited liability company (“Parent”), and (ii) the person identified on the signature page hereto as Stockholder (“Stockholder”).

WHEREAS, contemporaneously with the execution of this Agreement, Parent, Veronica Holdings, LLC, a Delaware limited liability company (“Topco”), Veronica Merger Sub, Inc., a Delaware corporation and a direct wholly owned subsidiary of Parent (“Merger Sub”), and Vapotherm, Inc., a Delaware corporation (the “Company”), are entering into an Agreement and Plan of Merger, dated as of the date hereof (as amended, modified or supplemented, from time to time, the “Merger Agreement”), pursuant to which, on the terms thereof and subject to the conditions therein, among other matters, Merger Sub shall merge with and into the Company, with the Company surviving such merger (the “Merger”), and other than any Shares described in Section 2.1(b) of the Merger Agreement and any Dissenting Shares, all of the shares of common stock, $0.001 par value per share, of the Company (“Common Stock”) issued and outstanding shall, immediately prior to the Effective Time, be converted into the right to receive the Per Share Merger Consideration payable with respect to such Shares in accordance with Section 2.8 of the Merger Agreement;

WHEREAS, as of the date hereof, Stockholder owns the number of Shares set forth on Schedule I hereto (together with any other class or series of capital stock or other equity securities of the Company which are Beneficially Owned by Stockholder as of the date hereof, the “Owned Shares”); and

WHEREAS, as a condition of, and inducement to, Parent’s willingness to enter into the Merger Agreement and consummate the Contemplated Transactions, Parent and Merger Sub have required that Stockholder enter into this Agreement.

NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth in this Agreement and in the Merger Agreement, and other good and valuable consideration, in each case the sufficiency and receipt of which is hereby acknowledged and agreed, and intending to be legally bound hereby, the parties hereto agree as follows:

1. Certain Definitions. For the purposes of this Agreement, capitalized terms used but not otherwise defined in this Agreement shall have the respective meanings ascribed to them in the Merger Agreement, and other capitalized terms used herein shall have the respective meanings ascribed to them in this Section 1.

“Beneficial Ownership” means, with respect to any Person, that such Person is deemed to, directly or indirectly beneficially own securities within the meaning assigned to such term in Rule 13d-3 adopted by the Securities and Exchange Commission under the Exchange Act, and a Person’s beneficial ownership of securities shall be calculated in accordance with the provisions of such Rule (in each case, irrespective of whether or not such Rule is actually applicable in such circumstance). For the avoidance of doubt, Beneficial Ownership shall also include record ownership of securities. The terms “Beneficially Own,” “Beneficially Owned” and “Beneficial Owner” shall have correlative meanings.

“Covered Shares” means the Owned Shares.

“Enforceability Exceptions” has the meaning set forth in Section 6(c).

“Expiration Date” has the meaning set forth in Section 8.

“Stockholder Information” has the meaning set forth in Section 5(c).

“Transfer” means, with respect to any Covered Share, directly or indirectly, to: (a) sell, transfer, gift, bequeath, exchange, offer, assign, pledge, encumber, subject to a Lien, hypothecate or otherwise dispose of (by merger, consolidation, share exchange, statutory division, statutory conversion, statutory domestication, by tendering into any tender or exchange offer, by testamentary disposition, by operation of Law or otherwise), such Covered Share, (b) to enter into any contract, option or other agreement, arrangement or understanding with respect to any transaction described in the immediately preceding clause (a) of this definition or (c) enter into any swap, hedge, derivative or other arrangement that transfers to another, in whole or in part, any of the economic consequences of Beneficial Ownership of such Covered Share, whether settled by delivery of such Covered Share, or other securities, in cash or otherwise; provided that, the following shall not be deemed a “Transfer”: (i) any exercise of stock options, derivatives or other similar equity securities in accordance with their terms, or (ii) sales, transfers or dispositions of Covered Shares, or any derivatives, options or similar equity securities in accordance with their terms, in the case of the immediately preceding clause (ii), solely to cover any tax payments due or payable upon the vesting of any equity awards or grants or the exercise of any stock options, in each case, in accordance with their terms. The terms “Transferring”, “Transferee”, “Transferred” or similar words shall have correlative meanings to Transfer.”

2. Agreement to Vote. Prior to the Expiration Date and subject to the terms of this Agreement, Stockholder hereby agrees that at the Company Stockholder Meeting or any other annual or special meeting of the stockholders of the Company, however called, including any adjournment, recess or postponement thereof, or in connection with any written consent of the Company’s stockholders and in any other circumstance upon which a vote, consent or approval of all or some of the stockholders of the Company is sought, in each case, with respect to which any of the matters described in subsections (a) through (d) of this Section 2 is to be considered, Stockholder shall (solely in its capacity as a stockholder of the Company), unless the Company Board and the Special Committee has made a Change of Board Recommendation in compliance with the terms of the Merger Agreement and such Change of Board Recommendation has not been rescinded or otherwise withdrawn in accordance with the provisions of the Merger Agreement, (i) appear at each such meeting or cause its representative(s) to appear at such meeting or otherwise cause the Covered Shares outstanding as of the record date for determining stockholders entitled to vote at such meeting to be counted as present thereat for purposes of determining whether a quorum is present and respond to each request by the Company for written consent, if any, of any shares entitled to provide consent as of the record date for determining the stockholders of the Company entitled to act by consent and (ii) vote or cause to be voted, in person or by proxy, or duly execute and deliver or cause to be duly executed and delivered a written consent covering, all of the Covered Shares (to the extent the Covered Shares may vote on the matter in question) outstanding as of such record date:

(a) in favor of the adoption and approval of the Merger Agreement and the Merger;

(b) against any action, proposal, agreement or transaction (including any Acquisition Proposal) that would reasonably be expected, or the effect of which would reasonably be expected, to change in any manner the voting rights of any class of shares of the Company or materially impede, interfere with, delay, postpone, frustrate, discourage or adversely affect the timely consummation of the Contemplated Transactions, including the Closing and the Merger, or the performance by Stockholder of its obligations under this Agreement, including, without limitation: (i) any extraordinary corporate transaction, such as a scheme of arrangement, debt or equity financing, merger, consolidation or other business combination involving the Company or any of its Subsidiaries (other than the Merger); (ii) a sale, lease or transfer of a material amount of assets of the Company and its Subsidiaries, taken as a whole, or a reorganization, recapitalization or liquidation of the Company or any of its Subsidiaries; (iii) an election of new members to the Company Board, other than nominees to the Company Board who are serving as directors of the Company on the date of this Agreement or as otherwise provided in the Merger Agreement; or (iv) any material change in the present capitalization or dividend policy of the Company or any of its Subsidiaries or any amendment or other change to the Company’s or any of its Subsidiaries’ Organizational Documents;

(c) against any action, proposal, transaction or agreement that would result in (i) a breach in any respect of any covenant, representation or warranty or any other obligation or agreement of the Company contained in the Merger Agreement, or of Stockholder contained in this Agreement; or (ii) any of the conditions to the consummation of the Merger set forth in Article VI of the Merger Agreement not being fulfilled; and

Any attempt by Stockholder to vote, or express consent or dissent with respect to (or otherwise to utilize the voting power of), any of Stockholder’s Covered Shares in a manner that violates or breaches the terms of this Agreement shall be null and void ab initio.

3. No Disposition or Solicitation.

(a) Except as expressly provided for in this Agreement, Stockholder hereby covenants and agrees that prior to the Expiration Date, Stockholder shall not, directly or indirectly, (i) Transfer (or cause or permit the Transfer of), either voluntarily or involuntarily, or enter into any Contract, option or other arrangement or understanding with respect to the Transfer of any of the Covered Shares or any interest therein, including, without limitation, any swap transaction, option, warrant, forward purchase or sale transaction, futures transaction, cap transaction, floor transaction, collar transaction or any other similar transaction (including any option with respect to any such transaction) or combination of any such transactions, in each case involving any of the Covered Shares, (ii) deposit any of the Covered Shares into a voting trust or enter into a voting agreement or arrangement or grant any proxy or power of attorney with respect to the Covered Shares that is inconsistent with Stockholder’s obligations under this Agreement, (iii) convert or exchange, or take any action which would, or would reasonably be expected to, result in the conversion or exchange, of any of the Covered Shares, (iv) take any action that would, or would reasonably be expected to, (A) make any representation or warranty of Stockholder set forth in this Agreement materially untrue or materially incorrect, (B) have the effect of preventing, disabling, or materially delaying Stockholder from performing any of its obligations under this Agreement or (C) result in a breach of any covenant, agreement or obligation of Stockholder set forth in this Agreement, or (v) commit or agree or commit (in each case, in writing) to take any of the actions referred to in the immediately preceding clauses (i), (ii), (iii) or (iv). Any purported Transfer, act or omission in violation of this Section 3(a) shall be void ab initio and of no force or effect.

(b) This Agreement and the obligations hereunder shall be binding upon any Person to which legal or Beneficial Ownership of the Covered Shares or any interest therein or rights with respect thereto shall pass, whether by operation of Law or otherwise, including, Stockholder’s heirs, devisees, successors and assigns. Stockholder covenants and agrees that it will not request that the Company register the Transfer (book-entry or otherwise) of any certificate or uncertificated interest representing any or all of the Covered Shares, unless such Transfer is made in compliance with this Agreement. To the extent requested by Parent, Stockholder shall promptly surrender the certificate or certificates, if any, representing any Covered Shares Beneficially Owned by Stockholder so that the transfer agent for such Covered Shares may affix thereto an appropriate legend referring to this Agreement and the restrictions on transfer and ownership hereunder. Stockholder acknowledges and agrees, with respect to any Covered Shares that are uncertificated, that Stockholder has received all notices of the restrictions on transfer and ownership required by applicable Law.

4. Proxy.

(a) Prior to the Expiration Date, Stockholder hereby (i) grants to, and appoints, Parent, and any person designated by Parent, and each of them individually, Stockholder’s proxy and attorney-in-fact (with full power of substitution and re-substitution), for and in the name, place and stead of Stockholder, to vote all of the Covered Shares or execute and deliver a consent or approval in respect of the Covered Shares (or cause any vote or consent to be provided in respect to all of the Covered Shares), in accordance with the terms of Section 2 hereof, solely with respect to matters set forth in Sections 2(a) – (d) hereof, and (ii) revokes any and all proxies heretofore given in respect of the Covered Shares. For the avoidance of doubt, nothing herein shall restrict Stockholder from voting or granting consents or approvals in respect of the Covered Shares for any matters other than those set forth in Sections 2(a) – (d) hereof.

(b) The attorneys-in-fact and proxies named above are hereby authorized and empowered by Stockholder at any time after the date hereof and prior to the Expiration Date to act as Stockholder’s attorney-in-fact and proxy to vote the Covered Shares, and to exercise all voting, consent and similar rights of Stockholder with respect to the Covered Shares (including the power to execute and deliver written consents), solely with respect to matters set forth in Sections 2(a) – (d) hereof, at the Company Stockholder Meeting and any other annual or special meeting of stockholders and in every action by written consent in lieu of such a meeting in accordance with the terms of Section 2 hereof.

(c) Stockholder hereby represents and warrants to Parent that any proxies heretofore given in respect of the Covered Shares are not irrevocable and that any such proxies are hereby revoked, and Stockholder agrees to promptly notify the Company of such revocation. Stockholder hereby affirms that the proxy granted herein is given in connection with the execution of the Merger Agreement and that such proxy is given to secure the performance of the duties of Stockholder under this Agreement. Stockholder hereby further affirms that the proxy granted herein is coupled with an interest sufficient at law to support the creation of a proxy and power of attorney and may under no circumstances be revoked. Stockholder hereby ratifies and confirms all that such proxy may lawfully do or cause to be done by virtue hereof. Stockholder agrees to vote the Covered Shares in accordance with Section 2 hereof, solely with respect to matters set forth in Sections 2(a) – (d) hereof. Notwithstanding anything to the contrary in this Agreement, the proxy and attorney-in-fact granted by Stockholder pursuant to this Section 4, and all other obligations and covenants of Stockholder set forth in this Section 4, shall be revocable by Stockholder upon the termination of the Merger Agreement pursuant to and in accordance with its terms.

5. Additional Agreements.

(a) Certain Events. In the event of any stock split, stock dividend, merger, reorganization, recapitalization or other change in the capital structure of the Company affecting the Covered Shares or other securities or rights of the Company by Stockholder, (i) the type and number of Covered Shares shall be adjusted appropriately, and (ii) this Agreement and the obligations of Stockholder hereunder shall automatically attach to any additional Covered Shares or other securities or rights of the Company issued to or acquired by Stockholder.

(b) Waiver of Appraisal and Dissenters’ Rights and Actions. Stockholder hereby irrevocably and unconditionally (i) waives and agrees not to exercise, and covenants to cause its controlled Affiliates and Representatives to waive and not to exercise, in each case, to the fullest extent permissible under applicable Law, any rights of appraisal or rights to dissent from the Merger or any other similar rights that Stockholder may have (whether under any contract, pursuant to applicable Law or otherwise), including, without limitation, any rights arising under Section 262 of the DGCL, and (ii) waives and agrees not to commence or participate in, assist or knowingly encourage, and to take all actions necessary to opt out of (and covenants to cause its controlled Affiliates and Representatives not to commence or participate in, assist or knowingly encourage, and to take all actions necessary to opt out of), in each case, to the fullest extent permissible under applicable Law, any class in any class Action with respect to, any Action or claim, derivative or otherwise, against Parent, Merger Sub, SLR, the Company or any of their respective Subsidiaries or Affiliates and each of their respective successors and assigns, in each case, relating to the negotiation, execution or delivery of this Agreement, the Merger Agreement or the other Transaction Documents or the consummation of the Merger or any of the other Contemplated Transactions, including any claim (A) challenging the validity of, or seeking to enjoin the operation of, any provision of this Agreement or any other Transaction Document (including any claim seeking to enjoin or delay the closing of the Merger or any of the other Contemplated Transactions), or (B) alleging (1) a breach of any fiduciary duty of the Company Board, the Special Committee or any individual member thereof or any other Representative of the Company in connection with this Agreement, the Merger Agreement or the transactions contemplated hereby or thereby or (2) aiding and abetting any such breach of fiduciary duty against Parent, Merger Sub, SLR or any of their respective Subsidiaries and Affiliates or any of their respective Representatives; provided that nothing in this Section 5(b) shall restrict or prohibit Stockholder from asserting (x) its right to receive its allocable portion of the Total Merger Consideration in accordance with the Merger Agreement and the DGCL, or (y) counterclaims or defenses in any Action or claim brought or asserted against it by Parent, Merger Sub, SLR, the Company or any of their respective Subsidiaries or Affiliates and each of their respective successors and assigns relating to this Agreement, the Merger Agreement or any of the other Transaction Documents, or from enforcing its rights under this Agreement.

(c) Communications. Stockholder (i) hereby consents to and authorizes the publication and disclosure by Parent, SLR, the Company and any of their respective Affiliates in any press release, Form 8-K, the Proxy Statement or the Schedule 13E-3 (including all documents and schedules filed with the SEC) or other disclosure document required under applicable Law in connection with the Merger Agreement or the other Transaction Documents or the Contemplated Transactions, its identity and ownership of any Covered Shares, the nature of its covenants, agreements, obligations, commitments, arrangements and understandings pursuant to this Agreement and such other information reasonably required under applicable Law in connection with such publication or disclosure (“Stockholder Information”), (ii) hereby agrees to cooperate with Parent, Merger Sub, SLR, the Company and their respective Affiliates and Representatives in connection with such filings, including providing Stockholder Information reasonably requested by Parent, Merger Sub, SLR, the Company or any of their respective Affiliates and Representatives and necessary in connection with such filings, and (iii) hereby agrees as promptly as practicable to notify Parent of any required corrections with respect to any written information supplied by Stockholder upon becoming aware that any such Stockholder Information is or shall have become false or misleading. Parent shall provide Stockholder with reasonable advance notice of and opportunity to review and comment on such draft documentation (or excerpts thereof to the extent related to Stockholder and its Affiliates) and consider all reasonable comments of Stockholder proposed in good faith regarding disclosure solely related to Stockholder and its Affiliates (it being understood that Parent, Merger Sub, SLR, the Company and their respective Affiliates shall not be deemed to be Affiliates of Stockholder).

(d) Bringdown Certificate. Stockholder hereby agrees to, on the Closing Date, upon the request of Parent, deliver to Parent a written certificate duly executed by Stockholder (or a duly authorized executive officer of Stockholder, if applicable) confirming and certifying that each of the representations and warranties of Stockholder set forth in Section 6 hereof are true and correct in all respects; provided that Parent shall not make such request on more than one occasion.

6. Representations and Warranties of Stockholder. Stockholder hereby represents and warrants to Parent as follows:

(a) Title. Stockholder is the sole record and beneficial owner of the Covered Shares. Stockholder (or its nominee or custodian for the benefit of Stockholder) has sole voting power, sole power of disposition and sole power to issue instructions with respect to the matters set forth in Section 2 hereof and all other matters set forth in this Agreement, in each case with respect to all of the Covered Shares with no limitations, qualifications or restrictions on such rights, subject to applicable securities laws and the terms of this Agreement. Except as permitted by this Agreement, the Owned Shares and the certificates representing such Owned Shares, if any, are now, and at all times prior to the Expiration Date will be, held by Stockholder, or by a nominee or custodian for the benefit of Stockholder, free and clear of any and all Liens.

(b) Organization and Qualification. If Stockholder is a natural person, Stockholder’s signature page to this Agreement sets forth the country for which Stockholder is a citizen and the principal residence of Stockholder. In the event that Stockholder is not a natural person, Stockholder is a corporation, limited liability company or limited partnership duly incorporated, formed or organized, validly existing and in good standing under the laws of its jurisdiction of incorporation, formation or organization. Stockholder has all requisite power and authority to own, lease and operate its properties and assets and to carry on its business as presently conducted, except to the extent that a failure of such power or authority would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on Stockholder’s ability to consummate the transactions contemplated herein.

(c) Authority; Execution and Delivery. In the event that Stockholder is not a natural person, Stockholder has the requisite power and authority to execute and deliver this Agreement and any other agreements or instruments executed by it in connection herewith, perform its obligations herein or therein, and consummate the transactions contemplated hereby or thereby. Stockholder has duly executed and delivered this Agreement and any other agreements or instruments executed by it in connection herewith, and, assuming the execution and delivery by the other parties hereto, this Agreement and such other executed agreements or instruments are a valid, legal and binding obligation of Stockholder, enforceable in accordance with its terms against Stockholder, except as such enforceability may be limited by (a) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other laws of general application relating to or affecting the enforcement of creditors’ rights and remedies, as from time to time may be in effect, and (b) application of equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) (the “Enforceability Exceptions”).

(d) No Conflicts; No Consents. The execution and delivery of this Agreement by Stockholder does not, and the consummation of the transactions contemplated hereby will not (with or without the giving of notice or the lapse of time or both), (a) in the event that Stockholder is not a natural person, violate or conflict with or result in any default under any provision of the organizational documents of Stockholder or any of its Subsidiaries, (b) violate any provision of any law, or any order, judgment or decree of any court or other governmental authority applicable to Stockholder or, if Stockholder is not a natural person, any of its Subsidiaries or any of their respective assets or properties, or (c) violate or result in the cancellation, modification, revocation or suspension of any material license, franchise or permit held by Stockholder or, if Stockholder is not a natural person, any of its Subsidiaries, unless, with respect to the foregoing clauses (b) and (c), such violation, cancellation, modification, revocation or suspension would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on Stockholder’s ability to consummate the transactions contemplated herein.

(e) No Litigation; Orders. There is no Action pending or, to the knowledge of Stockholder, threatened against Stockholder at law or in equity before or by any Governmental Body that questions the Beneficial Ownership or record ownership of Stockholder’s Covered Shares, the validity of this Agreement or the performance by Stockholder of its obligations under this Agreement, in each case, that would reasonably be expected to impair in any material respect the ability of Stockholder to perform its obligations hereunder or to consummate the transactions contemplated hereby. Stockholder is not subject to any injunction, writ, judgment, decree, determination, ruling or other order of any kind or nature by any Governmental Body that would reasonably be expected to impair in any material respect the ability of Stockholder to perform its obligations hereunder or to consummate the transactions contemplated hereby.

(f) No Fees. No broker, finder or investment banker is entitled to any brokerage, finder’s or other similar fee or commission in connection with this Agreement, the other Transaction Documents, the Merger or any of the other Contemplated Transactions based upon arrangements made or entered into by or on behalf of Stockholder.

(g) Receipt; Reliance. Stockholder has received and reviewed a copy of the Merger Agreement. Stockholder understands and acknowledges that Parent and Merger Sub are entering into the Merger Agreement in reliance upon Stockholder’s execution, delivery and performance of this Agreement and the representations, warranties, covenants, obligations and other agreements of Stockholder contained herein.

7. Representations and Warranties of Parent. Parent hereby represents and warrants to Stockholder as of the date hereof as follows:

(a) Organization and Qualification. Parent is a limited liability company duly formed, validly existing and in good standing under the laws of the State of Delaware. Parent has all requisite limited liability company power and authority to own, lease and operate its properties and assets and to carry on its business as presently conducted, except to the extent that a failure of such power or authority would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on Parent’s ability to consummate the transactions contemplated herein.

(b) Authority; Execution and Delivery. Parent has the requisite limited liability company or similar power and authority to execute and deliver this Agreement and any other agreements or instruments executed by it in connection herewith, perform its obligations herein or therein, and consummate the transactions contemplated hereby or thereby. Parent has duly executed and delivered this Agreement and any other agreements or instruments executed by it in connection herewith, and, assuming the execution and delivery by the other parties hereto, this Agreement and such other executed agreements or instruments are a valid, legal and binding obligation of Parent, enforceable in accordance with its terms against Parent, except as such enforceability may be limited by the Enforceability Exceptions.

(c) No Conflicts; No Consents. The execution and delivery of this Agreement by Parent does not, and the consummation of the transactions contemplated hereby will not (with or without the giving of notice or the lapse of time or both), (a) violate or conflict with or result in any default under any provision of the organizational documents of Parent or any of its Subsidiaries, (b) violate any provision of any law, or any order, judgment or decree of any court or other governmental authority applicable to Parent or any of its Subsidiaries or any of their respective assets or properties, or (c) violate or result in the cancellation, modification, revocation or suspension of any material license, franchise or permit held Parent or any of its Subsidiaries, unless, with respect to the foregoing clauses (b) and (c), such violation, cancellation, modification, revocation or suspension would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on Parent’s ability to consummate the transactions contemplated herein.

(d) No Litigation; Orders. There is no Action pending or, to the knowledge of Parent, threatened against Parent at law or in equity before or by any Governmental Body that questions the validity of this Agreement or the performance by Parent of its obligations under this Agreement, in each case, that would reasonably be expected to impair in any material respect the ability of Parent to perform its obligations hereunder or to consummate the transactions contemplated hereby. Parent is not subject to any injunction, writ, judgment, decree, determination, ruling or other order of any kind or nature by any Governmental Body that would reasonably be expected to impair in any material respect the ability of Parent to perform its obligations hereunder or to consummate the transactions contemplated hereby.

8. Termination. This Agreement and all rights and obligations of the parties hereto hereunder, including the proxy, shall commence on the date hereof and shall terminate upon the earliest to occur of (such time, the “Expiration Date”) (a) the mutual written agreement of Parent and Stockholder, (b) the Effective Time, (c) the valid termination of the Merger Agreement pursuant to Article VII thereof and (d) the time (if any) that the Company Board (or any committee thereof, including the Special Committee) shall have made a Change of Board Recommendation; provided that, (i) nothing herein shall relieve any party hereto from liability for any breach of this Agreement prior to such termination of this Agreement, and (ii) Section 8 and Section 10 hereof, which provisions and any Actions in respect of the matters described in clause (i) of this proviso shall survive any termination of this Agreement.

9. No Limitation. Nothing in this Agreement shall be construed to prohibit Stockholder from taking any action (or failing to take any action) solely in Stockholder’s capacity as an officer or member of the Company Board or the Special Committee (including with respect to any Acquisition Proposal in accordance with the Merger Agreement). Stockholder is signing this Agreement solely in Stockholder’s capacity as the Beneficial Owner of (and/or authorized power of attorney in respect of) the Covered Shares listed in Schedule I hereto, and not in any other capacity, and this Agreement shall not limit or otherwise affect the actions (or failure to take any actions) of Stockholder or any director, employee or designee of Stockholder or any of its Affiliates, in each case solely in his or her capacity, if applicable, as an officer or director of the Company or any other Person.

10. Miscellaneous.

(a) Entire Agreement. This Agreement and the schedules and exhibits and other documents delivered by the parties hereto and thereto in connection herewith and therewith, contain the complete agreement among the parties hereto and thereto with respect to the transactions contemplated hereby and thereby and supersede all prior agreements and understandings between the parties hereto and thereto with respect hereto and thereto.

(b) Further Assurances. In furtherance of and without limiting the other provisions hereof, Stockholder hereby agrees to execute and deliver any and all agreements, documents, certificates and instruments, and take any and all actions, as may be reasonably necessary, appropriate or advisable to implement, consummate, perfect or further the transactions contemplated by this Agreement and the provisions hereof.

(c) No Assignment. No party hereto shall have the right or the power to assign or delegate any provision of this Agreement except with the prior written consent of the other parties hereto; provided, that Parent may assign any or all of its rights or obligations hereunder to an Affiliate of Parent (except that such assignment shall not relieve Parent of its obligations hereunder). Except as provided in the immediately preceding sentence, this Agreement shall be binding upon and shall inure to the benefit of the parties’ respective successors, permitted assigns, executors and administrators.

(d) Binding Successors. Without limiting any other rights Parent may have hereunder, Stockholder agrees that this Agreement and its covenants, agreements and obligations hereunder shall attach to the Covered Shares Beneficially Owned by Stockholder and its Affiliates and shall be binding upon any Person to which Beneficial Ownership of such Covered Shares shall pass, whether by operation of Law or otherwise, including, without limitation, Stockholder’s heirs, guardians, administrators, Representatives, successors or permitted assigns.

(e) Amendments. This Agreement may be amended at any time prior to the Effective Time by an instrument in writing signed on behalf of each of the parties hereto.

(f) Notices. All notices and other communications hereunder between any of the parties hereto shall be deemed delivered and effective (a) when given personally, (b) on the third (3rd) Business Day after being mailed by first-class registered or certified mail, postage prepaid, (c) when sent via electronic mail or other electronic transmission (provided, that no “bounce back” or other notice of non-delivery is generated), or (d) on the first Business Day following delivery to a reliable overnight courier service, courier fee prepaid, in any case at such address as may have been furnished to Parent or Stockholder, as the case may be, in writing by Parent or Stockholder from time to time in accordance with the provisions of this Section 10(f):

All notices to Parent shall be addressed as follows until Stockholder receives notice of a change of address in connection with a transfer or otherwise:

c/o Perceptive Advisors, LLC

51 Astor Place, 10th Floor

New York, NY 10003

Attention: James Mannix, COO
Email: james@perceptivelife.com

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

Cooley LLP

500 Boylston Street, 14th Floor

Boston, MA 02116-3736

Attention: Eric Blanchard; Amelia Runyan Davis

Email: eblanchard@cooley.com; arunyandavis@cooley.com

Notice to Stockholder shall be addressed to the address set forth on Stockholder’s signature page hereto until Parent receive notice of a change in address.

(g) Severability. If any provision of this Agreement, or the application thereof to any party hereto or circumstance is held invalid or unenforceable, the remainder of this Agreement, and the application of such provision to other parties hereto or circumstances, shall not be affected thereby, and to such end, the provisions of this Agreement are agreed to be severable.

(h) Remedies. All rights, powers and remedies provided under this Agreement or otherwise available in respect hereof at law or in equity shall be cumulative and not alternative, and the exercise of any such right, power or remedy by any party hereto shall not preclude the simultaneous or later exercise of any other such right, power or remedy by such party.

(i) No Waiver. Except as otherwise provided in this Agreement, any failure of any of the parties to comply with any obligation, covenant, agreement or condition herein may be waived by the party or parties entitled to the benefits thereof only by a written instrument signed by the party granting such waiver. Any such waiver shall not be applicable or have any effect except in the specific instance in which it is given. No failure on the part of any party to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of any party in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver of such power, right, privilege or remedy. No single or partial exercise of any such power, right, privilege or remedy shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy.

(j) No Third Party Beneficiaries. This Agreement shall be binding upon and inure solely to the benefit of each party hereto, and nothing in this Agreement, express or implied, is intended to confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Agreement.

(k) Applicable Law; Jurisdiction.

(i) This Agreement will be governed by, and construed in accordance with, and all disputes arising out of or in connection with this Agreement or the transactions contemplated herein shall be resolved under, the Laws of the State of Delaware, regardless of the Laws that might otherwise govern under applicable principles of conflicts of laws thereof.

(ii) Each of the parties hereto hereby (i) expressly and irrevocably submits to the exclusive personal jurisdiction of the Court of Chancery of the State of Delaware or, if such Court of Chancery lacks subject matter jurisdiction, the state or federal courts in the State of Delaware, in the event any dispute arises out of this Agreement or the transactions contemplated herein, (ii) 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 (iii) agrees that it shall not bring any action relating to this Agreement or the transactions contemplated herein, in any court other than the Court of Chancery of the State of Delaware or, if such Court of Chancery lacks subject matter jurisdiction, the state or federal courts in the State of Delaware; provided that each of the parties has the right to bring any action or proceeding for enforcement of a judgment entered by the aforementioned courts in any other court or jurisdiction.

(iii) Each of the parties to this Agreement irrevocably consents to service of process inside or outside the territorial jurisdiction of the courts referred to in this Section 10(k) in the manner provided for notices in Section 10(f). Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by applicable Law.

(iv) EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION ARISING OUT OF, RELATING TO OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREIN. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATION OF THIS WAIVER, (III) EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND (IV) EACH OTHER PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.

(l) Specific Performance. Stockholder agrees that irreparable damage (for which monetary relief, even if available, would not be an adequate remedy) would occur in the event that any of the provisions of this Agreement were not performed by Stockholder in accordance with their specific terms or were otherwise breached. It is accordingly agreed that (a) Parent shall be entitled to seek an injunction or injunctions to prevent any breach of this Agreement by Stockholder and to seek to enforce specifically the terms and provisions hereof against Stockholder in any court of competent jurisdiction without proof of damages or otherwise, and (b) the right of Parent to seek specific performance and other equitable relief is an integral part of the transaction and without that right, Parent would have entered into this Agreement. Stockholder hereby (i) waives any defense that a remedy at law would be adequate, (ii) waives any requirement under any law to post a bond or other security as a prerequisite to obtaining equitable relief, and (iii) agrees not to assert that a remedy of specific performance or other equitable relief is unenforceable, invalid, contrary to law or inequitable for any reason, and not to assert that a remedy of monetary damages would provide an adequate remedy or that Parent otherwise has an adequate remedy at law.

(m) Interpretation. The headings in this Agreement are for purposes of reference only and shall not limit or otherwise affect the meaning or interpretation of any provision of this Agreement. Any reference to $ shall mean U.S. dollars, which is the currency used for all purposes in this Agreement. Any reference to the singular or to “him”, “her”, “it”, “itself”, or other like references, and references in the plural or the neuter, feminine or masculine reference, as the case may be, shall also, when the context so requires, be deemed to include the plural or singular, or the neuter, masculine or feminine reference, as the case may be. The words such as “herein,” “hereinafter,” “hereof” and “hereunder” that are used in this Agreement refer to this Agreement as a whole and not merely to a subdivision in which such words appear unless the context otherwise requires. The word “including” or any variation thereof means “including, without limitation” and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it. The parties hereto have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party hereto by virtue of the authorship of any provision of this Agreement. Any reference in this Agreement to a “day” or a number of “days” (without explicit reference to “Business Days”) shall be interpreted as a reference to a calendar day or number of calendar days. If any action is to be taken or given on or by a particular calendar day, and such calendar day is not a Business Day, then such action may be deferred until the next Business Day.

(n) Counterparts. This Agreement may be executed in counterparts, including by facsimile or other means of electronic transmission (such as DocuSign, by electronic mail in “.pdf” form), each of which shall be deemed an original and all of which taken together, shall constitute one and the same document.

(o) Expenses. Except as otherwise provided herein, Stockholder agrees to pay any and all costs and expenses (including legal fees, costs and disbursements) incurred by Stockholder or any of its Affiliates in connection with this Agreement and the transactions contemplated hereby.

(p) No Ownership Interest. Nothing contained in this Agreement shall be deemed to vest in Parent or any of its Subsidiaries or Affiliates any direct or indirect ownership or incidence of ownership of or with respect to any Covered Shares. All ownership and economic benefits of and relating to the Covered Shares shall remain vested in and belong to Stockholder.

(q) No Recourse. All claims, obligations, liabilities, or causes of action (whether in contract or in tort, in law or in equity, or granted by statute) that may be based upon, in respect of, arise under, out or by reason of, be connected with, or relate in any manner to this Agreement or the transactions contemplated by this Agreement, or the negotiation, execution, or performance of this Agreement (including any representation or warranty made in, in connection with, or as an inducement to, this Agreement), may be made only against (and such representations and warranties are those solely of) the Persons that are expressly identified as the parties in the preamble to this Agreement (collectively, the “Contracting Parties”). No Person who is not a Contracting Party, including any current, former or future director, officer, employee, incorporator, member, partner, manager, stockholder, equityholder, Affiliate, agent, attorney, representative or assignee of, and any financial advisor or lender to, any Contracting Party, or any current, former or future director, officer, employee, incorporator, member, partner, manager, stockholder, equityholder, Affiliate, agent, attorney, representative or assignee of any of the foregoing, shall have any liability (whether in contract or in tort, in law or in equity, or granted by statute) for any claims, causes of action, obligations, or liabilities arising under, out of, in connection with, or related in any manner to this Agreement or the transactions contemplated by this Agreement or based on, in respect of, or by reason of this Agreement or the transactions contemplated by this Agreement or the negotiation, execution, performance, or breach of this Agreement.

[Signature page follows]

IN WITNESS WHEREOF, Parent and Stockholder have caused this Agreement to be duly executed as of the date first above written.

	VERONICA INTERMEDIATE HOLDINGS, LLC


	By:
	Name:
	Title:

Signature Page to Voting and Support Agreement

	STOCKHOLDER




	By:
	Name:
	Title:




	If an individual:


	Name
	Citizen of:
	Resident of:

Signature Page to Voting and Support Agreement

SCHEDULE I

Name and Contact Information for

Stockholder

Number of Shares of Common Stock

Beneficially Owned

Exhibit 10.5

STRICTLY CONFIDENTIAL

SUBSCRIPTION AGREEMENT

This SUBSCRIPTION AGREEMENT (this “Agreement”), dated as of June [17], 2024, is entered into by and between Veronica Holdings, LLC, a Delaware limited liability company (“Topco”), and the Person identified as Subscriber on the signature pages hereto (“Subscriber”).

RECITALS

WHEREAS, Subscriber is employed by Vapotherm, Inc., a Delaware corporation (the “Company”), and holds [Company RSU Awards] [and] [Company PSU Awards] [and] [Company Stock Options] covering the number of shares as of the date hereof as set forth on Subscriber’s signature page hereto, which are expected to be fully vested [, and in the case of Company PSU Awards, with the vesting level determined assuming target performance is achieved (or such higher level if required under the terms of such Company PSU Award)] in connection with the Closing (collectively, the “Subscriber Company Equity Awards”);

[WHEREAS, concurrently with the execution and delivery of this Agreement, Topco, the Company and Subscriber are entering into that certain Rollover Agreement (as amended, modified or supplemented, from time to time, the “Subscriber Rollover Agreement”), pursuant to which, on the terms thereof and subject to the conditions therein, among other matters, Subscriber shall contribute, transfer and assign to Topco all of his, her or its Rollover Shares (as defined in the Subscriber Rollover Agreement) in exchange for Common Units in Topco in accordance with the terms thereof;]

WHEREAS, in connection with the Merger, on the terms and subject to the conditions of this Agreement, Subscriber desires, on the Closing Date and immediately following the Effective Time, to subscribe for a number of Common Units of Topco (the “Common Units”) as determined pursuant to Section 2.1 hereof, having the rights and privileges described on Exhibit A (the “Equity Term Sheet”), at a subscription price of $2.18 per Common Unit (the “Unit Price”) in exchange for the consideration to be paid or contributed by Subscriber to Topco as provided in Section 2.1, and in each case on the terms and conditions set forth herein (such subscription, the “Subscription Closing”);

WHEREAS, in connection with the Subscription Closing and certain other related transactions, Perceptive Advisors, LLC or its applicable Affiliates (collectively, “Perceptive”) and SLR Investment Corp. and its applicable Affiliates (collectively, “SLR”) shall enter into an amended and restated limited liability company agreement of Topco that is mutually agreeable to Topco, Perceptive and SLR, which shall reflect, among other matters, the terms set forth in the Equity Term Sheet (the “Topco A&R LLC Agreement”); and

WHEREAS, contemporaneously with the Subscription Closing, Subscriber will deliver to Topco a duly executed joinder to the Topco A&R LLC Agreement, on the form that is provided to Subscriber by Topco prior to the Subscription Closing (the “Joinder”), and Subscriber agrees to be bound by the Topco A&R LLC Agreement and agrees that the Common Units issued to Subscriber will be bound by and subject to the terms of the Topco A&R LLC Agreement.

AGREEMENT

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

1.3 “Expiration Date” means the earliest to occur of (a) the mutual written agreement of Topco and Subscriber, (b) the consummation of the Closing in accordance with the Merger Agreement and (c) the valid termination of the Merger Agreement pursuant to Article VII thereof.

1.4 “Transfer” means, with respect to any Subscriber Company Equity Awards or any shares of Company Common Stock underlying any Subscriber Company Equity Awards, directly or indirectly, to: (a) sell, transfer, gift, bequeath, exchange, offer, assign, pledge, encumber, subject to a Lien, hypothecate or otherwise dispose of (by merger, consolidation, share exchange, statutory division, statutory conversion, statutory domestication, by tendering into any tender or exchange offer, by testamentary disposition, by operation of law or otherwise), such Subscriber Company Equity Awards or any shares of Company Common Stock underlying such Subscriber Company Equity Awards; (b) to enter into any contract, option or other agreement, arrangement or understanding with respect to any transaction described in the immediately preceding clause (a) of this definition; or (c) enter into any swap, hedge, derivative or other arrangement that transfers to another, in whole or in part, any of the economic consequences of Beneficial Ownership of such Subscriber Company Equity Awards or any shares of Company Common Stock underlying such Subscriber Company Equity Awards, whether settled by delivery of such Subscriber Company Equity Awards or any shares of Company Common Stock underlying such Subscriber Company Equity Awards, or other securities, in cash or otherwise; provided that, the following shall not be deemed a “Transfer”: (i) any exercise of stock options, derivatives or other similar equity securities or (ii) sales, transfers or dispositions of the Subscriber Company Equity Awards or any shares of Company Common Stock underlying the Subscriber Company Equity Awards, or any derivatives, options or similar equity securities in accordance with their terms, in the case of the immediately preceding clause (ii), solely to cover any tax payments due or payable upon the vesting of any equity awards or grants or the exercise of any stock options, in each case, in accordance with their terms. The terms “Transferring”, “Transferee”, “Transferred” or similar words shall have correlative meanings to “Transfer.”

Section 2. Subscription and Certain Agreements.

2.1 Subscription.

(a) [Company RSU Awards. Subscriber is entitled to receive the Company RSU Consideration pursuant to Section 2.2(a)(i) of the Merger Agreement, net of applicable Taxes required to be withheld with respect to such amount (the “RSU Withholding Taxes”). Immediately following the Effective Time, on the terms and subject to the conditions set forth herein, Subscriber agrees, at the Subscription Closing, to purchase from Topco, and Topco agrees to issue and sell to Subscriber, a number of Common Units (the “RSU Topco Common Units”) equal to (i) all of Subscriber’s Rollover Company RSU Consideration [(which, for the avoidance of doubt and pursuant to the terms of Section 2.2(a)(ii) of the Merger Agreement, is an amount equal to Subscriber’s Company RSU Consideration net of any RSU Withholding Taxes)] (such [net] amount, the “Subscriber Rollover Company RSU Consideration”), divided by (ii) the Unit Price. [In furtherance of the foregoing and pursuant to Section 2.2(a)(ii) of the Merger Agreement, subject to the approval by the Company Board or the compensation committee thereof, Subscriber’s Company RSU Award, to the extent then-outstanding, will be settled in exchange for the number of shares of Company Common Stock subject to Subscriber’s Company RSU Award immediately prior to the Closing, and such shares of Company Common Stock shall be treated as Rollover Shares subject to the Subscriber Rollover Agreement; provided that the foregoing shall be subject to Subscriber paying the Company on or prior to the Closing an amount of cash equal to the applicable Taxes required to be withheld with respect to the vesting and/or settlement of Subscriber’s Company RSU Award.] [In furtherance of the foregoing and pursuant to Section 2.2(a)(ii) of the Merger Agreement, Topco shall, solely for administrative convenience purposes (and without altering the legal effect of the foregoing, including the full satisfaction of Subscriber’s rights to receive such Company RSU Consideration pursuant to Section 2.2(a)(i) of the Merger Agreement), (A) issue the RSU Topco Common Units to Subscriber in lieu of Subscriber actually receiving the Subscriber Rollover Company RSU Consideration in cash, and (B) cause the Company or one of its subsidiaries to remit any RSU Withholding Taxes through regular payroll procedures on or following the Closing Date and, if applicable, pay such amounts to the appropriate Governmental Body pursuant to Section 2.10 of the Merger Agreement]. Subscriber shall be deemed to have received the entire amount of Subscriber’s Company RSU Consideration [(including, for the avoidance of doubt, any RSU Withholding Taxes remitted or paid by the Company on behalf of Subscriber to the appropriate Governmental Body pursuant to Section 2.10 of the Merger Agreement and this Section 2.1(a))] and thereafter immediately contributed the Subscriber Rollover Company RSU Consideration to Topco in exchange for the RSU Topco Common Units (the “Company RSU Award Subscription”).]

(b) [Company PSU Awards. Subscriber is entitled to receive the Company PSU Consideration pursuant to Section 2.2(b)(i) of the Merger Agreement, net of applicable Taxes required to be withheld with respect to such amount (the “PSU Withholding Taxes”). Immediately following the Effective Time, on the terms and subject to the conditions set forth herein, Subscriber agrees, at the Subscription Closing, to purchase from Topco, and Topco agrees to issue and sell to Subscriber, a number of Common Units (the “PSU Topco Common Units”) equal to (i) all of Subscriber’s Rollover Company PSU Consideration [(which, for the avoidance of doubt and pursuant to the terms of Section 2.2(b)(ii) of the Merger Agreement, is an amount equal to Subscriber’s Company PSU Consideration net of any PSU Withholding Taxes)] (such [net] amount, the “Subscriber Rollover Company PSU Consideration”), divided by (ii) the Unit Price. [In furtherance of the foregoing and pursuant to Section 2.2(b)(ii) of the Merger Agreement, subject to the approval by the Company Board or the compensation committee thereof, Subscriber’s Company PSU Award, to the extent then-outstanding, will be settled in exchange for the number of shares of Company Common Stock subject to Subscriber’s Company PSU Award immediately prior to the Closing (with the vesting level determined assuming target performance is achieved (or such higher level if required under the terms of such Company PSU Award)), and such shares of Company Common Stock shall be treated as Rollover Shares subject to the Subscriber Rollover Agreement; provided that the foregoing shall be subject to Subscriber paying the Company prior to the Closing an amount of cash equal to the applicable Taxes required to be withheld with respect to the vesting and/or settlement of Subscriber’s Company PSU Award.] [In furtherance of the foregoing and pursuant to Section 2.2(b)(ii) of the Merger Agreement, Topco shall, solely for administrative convenience purposes (and without altering the legal effect of the foregoing, including the full satisfaction of Subscriber’s rights to receive such Company PSU Consideration pursuant to Section 2.2(b)(i) of the Merger Agreement), (A) issue the PSU Topco Common Units to Subscriber in lieu of Subscriber actually receiving the Subscriber Rollover Company PSU Consideration in cash, and (B) cause the Company or one of its subsidiaries to remit any PSU Withholding Taxes through regular payroll procedures on or following the Closing Date and, if applicable, pay such amounts to the appropriate Governmental Body pursuant to Section 2.10 of the Merger Agreement]. Subscriber shall be deemed to have received the entire amount of Subscriber’s Company PSU Consideration [(including, for the avoidance of doubt, any PSU Withholding Taxes remitted or paid by the Company on behalf of Subscriber to the appropriate Governmental Body pursuant to Section 2.10 of the Merger Agreement and this Section 2.1(b))] and thereafter immediately contributed the Subscriber Rollover Company PSU Consideration to Topco in exchange for the PSU Topco Common Units (the “Company PSU Award Subscription”).]

(c) [Company Stock Options. Subscriber is entitled to receive the Company Stock Option Consideration pursuant to Section 2.2(c)(i) of the Merger Agreement, net of applicable Taxes required to be withheld with respect to such amount (the “Stock Option Withholding Taxes”). Immediately following the Effective Time, on the terms and subject to the conditions set forth herein, Subscriber agrees, at the Subscription Closing, to purchase from Topco, and Topco agrees to issue and sell to Subscriber, a number of Common Units (the “Stock Option Topco Common Units” [and, together with the RSU Topco Common Units and the PSU Topco Common Units,] the “New Topco Common Units”) equal to (i) all of Subscriber’s Rollover Company Stock Option Consideration [(which, for the avoidance of doubt and pursuant to the terms of Section 2.2(c)(ii) of the Merger Agreement, is an amount equal to Subscriber’s Company Stock Option Consideration net of any Stock Option Withholding Taxes)] (such [net] amount, the “Subscriber Rollover Company Stock Option Consideration” and, together with Subscriber Rollover Company RSU Consideration and the Subscriber Rollover Company PSU Consideration, the “Subscriber Rollover Consideration”), divided by (ii) the Unit Price. [In furtherance of the foregoing and pursuant to Section 2.2(c)(ii) of the Merger Agreement, subject to the approval by the Company Board or the compensation committee thereof, Subscriber shall exercise (by payment of the applicable exercise price or on a net exercise basis) Subscriber’s Company Stock Options, to the extent then-outstanding, in exchange for shares of Company Common Stock subject to Subscriber’s Company Stock Options immediately prior to the Closing, and such shares of Company Common Stock shall be treated as Rollover Shares subject to the Subscriber Rollover Agreement; provided that the foregoing shall be subject to Subscriber paying the Company prior to the Closing an amount of cash equal to the applicable Taxes required to be withheld with respect to such exercise of Subscriber’s Company Stock Options.] [In furtherance of the foregoing and pursuant to Section 2.2(c)(ii) of the Merger Agreement, Topco shall, solely for administrative convenience purposes (and without altering the legal effect of the foregoing, including the full satisfaction of Subscriber’s rights to receive such Company Stock Option Consideration pursuant to Section 2.2(c)(i) of the Merger Agreement), (A) issue the Stock Option Topco Common Units to Subscriber in lieu of Subscriber actually receiving the Subscriber Rollover Company Stock Option Consideration in cash, and (B) cause the Company or one of its subsidiaries to remit any Stock Option Withholding Taxes through regular payroll procedures on or following the Closing Date and, if applicable, pay such amounts to the appropriate Governmental Body pursuant to Section 2.10 of the Merger Agreement]. Subscriber shall be deemed to have received the entire amount of Subscriber’s Company Stock Option Consideration [(including, for the avoidance of doubt, any Stock Option Withholding Taxes remitted or paid by the Company on behalf of Subscriber to the appropriate Governmental Body pursuant to Section 2.10 of the Merger Agreement and this Section 2.1(c))] and thereafter immediately contributed the Subscriber Rollover Company Stock Option Consideration to Topco in exchange for the Stock Option Topco Common Units (the “Company Stock Option Subscription” and, together with the Company RSU Award Subscription and the Company PSU Award Subscription, the “Company Equity Award Subscription”).]

2.2 Subscription Closing. The consummation of the transactions contemplated hereby (including the Subscription Closing) shall take place on the Closing Date immediately following the Effective Time.

2.3 Subscription Closing Conditions (Topco). Topco’s obligation to issue the New Topco Common Units to Subscriber at the Subscription Closing pursuant to Section 2.1 is subject to the following conditions precedent:

(a) the Merger shall have been consummated pursuant to the terms and conditions of the Merger Agreement;

(b) Subscriber shall have complied in all material respects with its obligations hereunder that are to be performed by Subscriber on or prior to the Subscription Closing (including, for avoidance of doubt, the delivery of the Subscriber Rollover Consideration to Topco in accordance with Section 2.1);

(c) the representations and warranties of Subscriber under Section 4 and Section 5 herein shall be true and correct in all material respects when made and on the Closing Date;

(d) if Subscriber is an individual and is married or has a domestic partner, deliver the Spousal Consent attached hereto as Exhibit B (the “Spousal Consent”), duly executed by such Subscriber’s spouse or domestic partner;

(e) Subscriber shall have delivered to Topco a properly completed and executed IRS Form W-9 or appropriate IRS Form W-8, together with all applicable attachments thereto, as applicable;

(f) Subscriber shall have delivered to Topco a complete and duly executed Accredited Investor Questionnaire attached hereto as Exhibit C (the “Accredited Investor Questionnaire”); and

(g) Subscriber shall have delivered to Topco a duly executed Joinder to the Topco A&R LLC Agreement.

2.4 Restrictions on Transfer.

(a) Except as expressly provided for in Section 2.1 hereof or pursuant to Section 2.2 of the Merger Agreement, Subscriber hereby covenants and agrees that, prior to the Expiration Date, Subscriber shall not, without the prior written consent of Topco, directly or indirectly, (i) Transfer (or cause or permit the Transfer of), either voluntarily or involuntarily, or enter into any Contract, option or other arrangement or understanding with respect to the Transfer of any of the Subscriber Company Equity Awards or any interest therein, including, without limitation, any swap transaction, option, warrant, forward purchase or sale transaction, futures transaction, cap transaction, floor transaction, collar transaction or any other similar transaction (including any option with respect to any such transaction) or combination of any such transactions, in each case involving any of the Subscriber Company Equity Awards, (ii) convert, exercise or exchange, or take any action which would result in the conversion, exercise or exchange, of any of the Subscriber Company Equity Awards, (iii) take any action that would, or would reasonably be expected to, (A) make any representation or warranty of Subscriber set forth in this Agreement untrue or incorrect (B) have the effect of preventing, disabling, or materially delaying Subscriber from performing any of its obligations under this Agreement or (C) result in a breach of any covenant, agreement or obligation of Subscriber set forth in this Agreement, or (iv) commit or agree to commit (whether or not in writing) to take any of the actions referred to in the immediately preceding clauses (i), (ii) or (iii). Any purported Transfer, act or omission in violation of this Section 2.4 shall be void ab initio and of no force or effect and Subscriber acknowledges that the Company will not register or permit the registration of or otherwise facilitate or effect any such Transfer.

(b) This Agreement and the obligations hereunder shall attach to the Subscriber Company Equity Awards and shall be binding upon any Person to which legal or Beneficial Ownership of the Subscriber Company Equity Awards or any shares of Company Common Stock underlying the Subscriber Company Equity Awards or any interest therein or rights with respect thereto shall pass, whether by operation of Law or otherwise, including Subscriber’s heirs, devisees, successors and assigns. Subscriber covenants and agrees that it will not request that the Company register the Transfer (book-entry or otherwise) of any certificate or uncertificated interest representing any of the Subscriber Company Equity Awards, or shares of Company Common Stock underlying any or all of the Subscriber Company Equity Awards, unless such Transfer is made in compliance with this Agreement.

2.5 Additional Agreements.

(a) Certain Events. In the event of any stock split, stock dividend, merger, reorganization, recapitalization or other change in the capital structure of the Company affecting the Rollover Shares or the acquisition of Beneficial Ownership of Subscriber Company Equity Awards or any shares of Company Common Stock underlying the Subscriber Company Equity Awards or other securities or rights of the Company by Subscriber, (i) the type and number of the Subscriber Company Equity Awards or the shares of Company Common Stock underlying the Subscriber Company Equity Awards shall be adjusted appropriately, and (ii) this Agreement and the obligations of Subscriber hereunder shall automatically attach to any additional Subscriber Company Equity Awards or shares of Company Common Stock underlying the Subscriber Company Equity Awards or other securities or rights of the Company issued to or acquired by Subscriber.

(b) Communications. Subscriber (i) hereby consents to and authorizes the publication and disclosure by Topco, Parent, Merger Sub, SLR, the Company and any of their respective Affiliates in any press release, Form 8-K, the Proxy Statement or the Schedule 13E-3 (including all documents and schedules filed with the SEC) or other disclosure document required under applicable Law in connection with the Merger Agreement or the other Transaction Documents or the Contemplated Transactions, its identity and ownership of the Subscriber Company Equity Awards, the nature of its covenants, agreements, obligations, commitments, arrangements and understandings pursuant to this Agreement and such other information reasonably required under applicable Law in connection with such publication or disclosure (“Stockholder Information”), (ii) hereby agrees to cooperate with Topco, Parent, Merger Sub, SLR, the Company and their respective Affiliates and Representatives in connection with such filings, including providing Stockholder Information reasonably requested by Topco, Parent, Merger Sub, SLR, the Company or any of their respective Affiliates and Representatives and necessary in connection with such filings, and (iii) hereby agrees as promptly as practicable to notify Topco of any required corrections with respect to any written information supplied by Subscriber upon becoming aware that any such Stockholder Information is or shall have become false or misleading. Topco shall provide Subscriber with reasonable advance notice of and opportunity to review and comment on such draft documentation (or excerpts thereof to the extent related to Subscriber and its Affiliates) and consider all reasonable comments of Subscriber proposed in good faith regarding disclosure solely related to Subscriber and its Affiliates (it being understood that Topco, Parent, Merger Sub, SLR, the Company and their respective Affiliates shall not be deemed to be Affiliates of Subscriber).

(c) Bringdown Certificate. Subscriber hereby agrees that, prior to the Expiration Date, upon the request of Topco at the Closing, Subscriber shall promptly deliver to Topco a written certificate duly executed by Subscriber (or a duly authorized executive officer of Subscriber, if applicable) confirming and certifying that each of the representations and warranties of Subscriber set forth in Section 4 and Section 5 hereof are true and correct in all material respects; provided that Topco shall not make such request on more than one occasion.

2.6 Joinder. Contemporaneously with the Subscription Closing, Subscriber will deliver to Topco a duly executed Joinder. For the avoidance of doubt, Topco will not be obligated to issue any New Topco Common Units hereunder until Subscriber delivers a duly executed Joinder to Topco.

2.7 Confidentiality. Unless Subscriber is party to a comparable confidentiality or similar agreement with the Company, Subscriber agrees to, and agrees to cause its controlled Affiliates to, keep confidential all nonpublic information in their possession regarding the Company, Perceptive, SLR, Topco, Parent, Merger Sub or any of their respective Affiliates and representatives or regarding this Agreement, the Merger Agreement, the other Rollover Agreements and the other Transaction Documents and the transactions contemplated hereby and thereby (“Confidential Information”); provided, however, that such Persons shall not be required to maintain as confidential any Confidential Information that (a) becomes generally available to the public other than as a result of disclosure in violation of this Section 2.7 (i) by such Person or any of its Representatives or (ii) to the knowledge of such Person and its controlled Affiliates, by any other Person in violation of an obligation or duty of confidentiality, (b) is received by Subscriber or its controlled Affiliates after the date hereof from a third party who, to the knowledge of Subscriber or its applicable Affiliates, is not under an obligation of confidentiality or is not otherwise prohibited from transmitting such information by a contractual, legal or fiduciary obligation with the Company, Perceptive, SLR, Topco, Parent, Merger Sub or any of their respective Affiliates and representatives, (c) was or is independently developed by or on behalf of Subscriber or its controlled Affiliates without use of or reference to any Confidential Information, (d) such Person discloses in the ordinary course of Subscriber’s performance of its duties with the Company, Perceptive, SLR, Topco, Parent, Merger Sub or any of their respective Affiliates and representatives, or (e) such Person is required pursuant to the terms of a valid order issued, promulgated or entered by or with any Governmental Body of competent jurisdiction or pursuant to any other requirement of applicable Law (provided, that, with respect to this clause (e), such Person shall (A) to the extent legally permissible, prior to the disclosing of any Confidential Information, provide Topco with prompt notice of such order and provide reasonable assistance and cooperation (at Topco’s sole expense) with all reasonable efforts of Topco and/or its subsidiaries in obtaining a protective order or other remedy, (B) disclose such Confidential Information only to the extent required by such order and request confidential treatment thereof and (C) inform any such Governmental Body of the confidential nature of such Confidential Information). Notwithstanding the foregoing, (x) Subscriber and its controlled Affiliates and their respective Representatives may disclose any Confidential Information (1) to any regulatory agency, self-regulatory organization, governmental agency or examiner thereof in the course of any routine examinations, investigations, sweeps or inquiries, in each case, which does not specifically target the Company, Perceptive, SLR, Topco, Parent, Merger Sub or any of their respective Affiliates and representatives or the Confidential Information, or (2) if Subscriber is not a natural person, to its Affiliates, partners, investors, and its and their respective Representatives in connection with its normal informational or reporting activities, or (3) to comply with any obligations under any Organizational Documents or any other contract or arrangement with any limited partner, member or other equityholder of any fund managed, advised or controlled by Subscriber or any of its Affiliates or any of its or its Affiliates’ affiliated entities; provided, that, with respect to clauses (2) and (3) hereof, the recipients of such Confidential Information are subject to customary confidentiality and non-disclosure obligations, and (y) Subscriber and its controlled Affiliates may disclose Confidential Information as reasonably deemed necessary to enforce its rights and perform its obligations under this Agreement and/or any ancillary documents thereto.

2.8 Section 83(b) Election. Unless otherwise instructed by Topco, within 25 days after the Closing Date, Subscriber shall provide Topco with a copy of a completed election under Section 83(b) of the Code (“83(b) Election”) and the regulations promulgated thereunder in the form provided by Topco. Subscriber shall, not later than 30 days after the Closing Date, file (via certified mail, return receipt requested) the original of such election with the Internal Revenue Service and shall thereafter notify Topco it has made such timely filing and provide to Topco a copy of such election and any other documentation related thereto that Topco reasonably requests.

2.9 Topco A&R LLC Agreement. Prior to the Expiration Date, Subscriber, on the one hand, and Topco and SLR, on the other hand, shall negotiate in good faith, and use reasonable best efforts and cooperate with each other with respect to the finalization of the Topco A&R LLC Agreement in form and substance consistent with the terms set forth in the Equity Term Sheet.

2.10 Contributions. Immediately following the Subscription Closing, Topco shall contribute, assign, transfer, convey and deliver to Parent all of Topco’s interest in the Subscriber Rollover Consideration, and Parent shall (and Topco shall cause Parent to) accept and assume such contribution, assignment, transfer, conveyance and delivery pursuant to a contribution agreement in form and substance reasonably satisfactory to SLR.

Section 3. Representations and Warranties of Topco. Topco hereby represents and warrants to Subscriber as follows:

3.3 New Topco Common Units Duly Authorized; Capitalization. All of the New Topco Common Units to be issued to Subscriber pursuant to this Agreement, if and when issued and delivered in accordance with the provisions of this Agreement, will be duly authorized and validly issued Common Units of Topco, free and clear of any Liens (other than restrictions on transfer under the Securities Act or other applicable securities Laws or any Liens set forth in the Topco A&R LLC Agreement).

Section 4. Representations and Warranties of Subscriber. Subscriber hereby represents and warrants to Topco as of the date of this Agreement and as of the Subscription Closing as follows:

4.1 Residence. If Subscriber is a natural person, Subscriber’s signature page to this Agreement sets forth the country for which Subscriber is a citizen and the principal residence of Subscriber. In the event that Subscriber is not a natural person, Subscriber is a corporation, limited liability company or limited partnership duly incorporated, formed or organized, validly existing and in good standing under the laws of its jurisdiction of incorporation, formation or organization. Subscriber has all requisite power and authority to own, lease and operate its properties and assets and to carry on its business as presently conducted, except to the extent that a failure of such power or authority would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on Subscriber’s ability to consummate the transactions contemplated herein.

4.2 Ownership of the Subscriber Company Equity Awards. Subscriber is the sole record and beneficial owner of the Subscriber Company Equity Awards, free and clear of any and all Liens, except for transfer restrictions of general applicability as may be provided under the Securities Act or other applicable securities Laws.

4.3 Authority; Capacity; Execution and Delivery. In the event that Subscriber is a natural person, Subscriber has full legal capacity to execute and deliver this Agreement and any other agreements or instruments executed by it in connection herewith, perform its obligations herein and therein, and consummate the transactions contemplated hereby and thereby. In the event that Subscriber is not a natural person, Subscriber has the requisite power and authority to execute and deliver this Agreement and any other agreements or instruments executed by it in connection herewith, perform its obligations herein and therein, and consummate the transactions contemplated hereby and thereby. Subscriber has duly executed and delivered this Agreement and any other agreements or instruments executed by it in connection herewith, and, assuming the execution and delivery by the other parties hereto and thereto, this Agreement and such other executed agreements or instruments are valid, legal and binding obligations of Subscriber, enforceable in accordance with their respective terms against Subscriber, except as such enforceability may be limited the Enforceability Exceptions.

4.4 Subscriber Intent. Subscriber is acquiring the New Topco Common Units for Subscriber’s own account as principal, for investment purposes only, not for any other person or entity and not for the purposes of resale, distribution subdivision or fractionalization thereof in violation of the Securities Act or any other applicable securities laws, and Subscriber has no present plans to enter into any contract, undertaking, agreement or arrangement for any such resale, distribution, subdivision or fractionalization. Subscriber is not subscribing for the New Topco Common Units from Topco in a fiduciary capacity.

4.5 Financial Status. Subscriber is an “accredited investor” as such term is defined in Regulation D promulgated under the Securities Act and, immediately prior to the Subscription Closing, Subscriber will complete and deliver to Topco the Accredited Investor Questionnaire. Subscriber is able to bear the economic risk of an investment in of the New Topco Units for an indefinite period of time, has adequate means of providing for its current financial needs and personal contingencies, understands that Subscriber may not be able to liquidate its investment in Topco in an emergency, if at all, and can afford a complete loss of the investment. Subscriber has such knowledge and experience in financial and business matters that Subscriber is capable of evaluating the merits and risks of such investment, is able to incur a complete loss of such investment and is able to bear the economic risk of such investment for an indefinite period of time. Any amounts invested in Topco by Subscriber, including the Subscriber Rollover Consideration, are not and will not be directly or indirectly derived from activities that contravene federal, state or international anti-money laundering laws.

4.6 No Conflicts; No Consents. The execution and delivery of this Agreement by Subscriber does not, and the consummation of the transactions contemplated hereby will not (with or without the giving of notice or the lapse of time or both), (a) in the event that Subscriber is not a natural person, violate or conflict with or result in any default under any provision of the organizational documents of Subscriber or any of its subsidiaries, (b) violate any provision of any law, or any order, judgment or decree of any court or other governmental authority applicable to Subscriber or, if Subscriber is not a natural person, any of its subsidiaries or any of their respective assets or properties, or (c) violate or result in the cancellation, modification, revocation or suspension of any material license, franchise or permit held by Subscriber or, if Subscriber is not a natural person, any of its subsidiaries, unless, with respect to the foregoing clauses (b) and (c), such violation, cancellation, modification, revocation or suspension would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on Subscriber’s ability to consummate the transactions contemplated herein.

4.7 No Litigation. There is no Action pending or, to the knowledge of Subscriber, threatened against Subscriber at law or in equity before or by any Governmental Body that questions Subscriber’s Beneficial Ownership or record ownership of the Subscriber Company Equity Awards or any shares of Company Common Stock underlying the Subscriber Company Equity Awards, the validity of this Agreement or the performance by Subscriber of its obligations under this Agreement, in each case, that would reasonably be expected to impair in any material respect the ability of Subscriber to perform its obligations hereunder or to consummate the transactions contemplated hereby. Subscriber is not subject to any injunction, writ, judgment, decree, determination, ruling or other order of any kind or nature by any Governmental Body that would reasonably be expected to impair in any material respect the ability of Subscriber to perform its obligations hereunder or consummate the transactions contemplated hereby.

4.8 No Other Representation. Subscriber acknowledges and agrees that Subscriber (a) has made its own independent review and investigation into and, based thereon, has formed an independent judgment concerning, the business, assets, condition, operations and prospects of Topco and its subsidiaries, (b) has adequate access to such information, documents and other materials relating to Topco and its subsidiaries and their respective businesses and operations as it has deemed necessary to enable it to form such independent judgment, (c) has had such time as it deems necessary and appropriate to fully and completely review and analyze such information, documents and other materials and (d) has been provided an opportunity to ask questions of Topco with respect to such information, documents and other materials and has received satisfactory answers to such questions. Subscriber has received no other representations or warranties from Topco, the Company or any other person acting on behalf of Topco, the Company or any of their respective Affiliates, other than those contained in this Agreement and the Topco A&R LLC Agreement, and Subscriber disclaims reliance on any such other representations and warranties. Subscriber may have previously received presentations which include certain statements, estimates, targets and projections that reflect management’s assumptions concerning anticipated future performance of Topco, the Company or any of their respective subsidiaries. Subscriber understands and agrees that (i) such statements, estimates, targets and projections are based on significant assumptions and subjective judgments concerning anticipated results, which are inherently subject to risks, variability and contingencies, many of which are beyond the control of any such parties, and these assumptions and judgments may or may not prove to be correct and there can be no assurance that any projected results are attainable or will be realized, (ii) such statements, estimates, targets, projections or other forward-looking statements have been provided to assist in an evaluation of an investment in the New Topco Common Units, but are not to be viewed as factual and should not be relied upon as an accurate representation of future results, and (iii) actual results may differ materially from those in such statements, estimates, targets, projections or other forward-looking statements.

4.9 Certain Tax Matters. The Subscriber is not and has not been a party to any binding agreement to, and does not have a current plan or intention to, sell, exchange or otherwise dispose of the Common Units purchased pursuant to this Agreement.

Section 5. Agreements and Acknowledgements of Subscriber. Subscriber hereby agrees and acknowledges to Topco as of the date of this Agreement and as of the Subscription Closing as follows:

5.1 No Registration. Subscriber understands and agrees that Subscriber’s New Topco Common Units are being acquired by Subscriber in a transaction not involving any public offering within the meaning of the Securities Act, in reliance on an exemption therefrom, and that Topco is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgements and understandings set forth in this Agreement to determine the applicability of such exemptions and the suitability of Subscriber to acquire the New Topco Common Units. Subscriber understands that the New Topco Common Units have not been, and will not be, approved or disapproved by the Securities and Exchange Commission or by any other federal or state agency, and that no such agency has passed on the accuracy or adequacy of disclosures made to Subscriber by Topco. No federal or state governmental agency has passed on or made any recommendation or endorsement of the New Topco Common Units or an investment in Topco.

5.2 Limitations on Disposition and Resale. Subscriber understands and acknowledges that the New Topco Common Units have not been and will not be registered under the Securities Act, or the securities laws of any state and, unless the New Topco Common Units are so registered, they may not be offered, sold, transferred or otherwise disposed of except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and any applicable securities laws of any state or foreign jurisdiction. Subscriber recognizes that there will not be any public trading market for the New Topco Common Units, and as a result, Subscriber may be unable to sell or dispose of its, his or her interest in Topco or liquidate its investment in Topco. Subscriber represents and warrants further that it has no contract, understanding, agreement or arrangement with any Person to offer, sell, transfer or otherwise dispose of any of the New Topco Common Units (in whole or in part) and Subscriber represents and warrants that it has no present plans to enter into any such contract, undertaking, agreement or arrangement. Subscriber understands that any certificate representing the Common Units will bear legends restricting the transfer thereof. Subscriber agrees not to engage in any hedging transactions with regard to the New Topco Common Units unless in compliance with the Securities Act.

5.3 Sole Consideration. Subscriber acknowledges and agrees that the New Topco Common Units shall constitute the sole consideration that Subscriber is entitled to receive in exchange for the Subscriber Rollover Consideration.

5.4 No Fiduciary Duties. Subscriber understands and acknowledges that applicable Delaware law permits the members of a Delaware limited liability company to modify and even eliminate fiduciary duties of members and managers (i.e., directors or officers) of Topco and that the Topco A&R LLC Agreement will modify or, in certain cases, eliminate fiduciary duties of the members and managers (i.e., directors or officers) of Topco. Subscriber hereby releases, discharges and acquits the members and managers (i.e., directors or officers) of Topco from any claims based on fiduciary duties imposed by applicable law or equity unless and to the extent set forth in the Topco A&R LLC Agreement. In particular, and without limiting the foregoing, Subscriber, for itself and on behalf of its predecessors-in-interest and successors-in-interest, if applicable, acknowledges that the foregoing released claims include claims which it does not know or suspect exist, and hereby waives all rights which may exist under California Civil Code Section 1542, which provides as follows:

5.5 Brokers and Finders. No broker, finder or investment banker is entitled to any brokerage, finder’s or other similar fee or commission in connection with this Agreement, the Transaction Documents, the Merger or any of the other Contemplated Transactions based upon arrangements made or entered into by or on behalf of Subscriber.

5.6 Receipt; Reliance. Subscriber has received and reviewed a copy of the Merger Agreement. Subscriber understands and acknowledges that Parent and Merger Sub are entering into the Merger Agreement in reliance upon Subscriber’s execution, delivery and performance of this Agreement and the representations, warranties, covenants, obligations and other agreements of Subscriber contained herein.

5.7 Independent Investigation. Subscriber recognizes that the investment in Topco is speculative and involves a high degree of risk. Subscriber acknowledges and agrees that neither Topco nor any of its Affiliates or Representatives is advising Subscriber as to any tax, legal, investment, accounting or regulatory matters in any jurisdiction, neither Topco nor any of its Affiliates or Representatives shall have any responsibility or liability to Subscriber with respect thereto and neither Topco or any of its Affiliates or Representatives is making any representation or warranty as to the tax treatment of the Company Equity Award Subscription contemplated hereby. Subscriber acknowledges and agrees that it has consulted with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated by this Agreement, and neither Topco nor any of its subsidiaries, Affiliates or Representatives shall have responsibility or liability to Subscriber with respect thereto. Subscriber has had an opportunity (a) to question, and to receive information from Topco concerning Topco and its Subsidiaries and Subscriber’s direct or indirect, as applicable, investment in Topco and (b) to obtain any and all additional information necessary to verify the accuracy of any information which Subscriber deems relevant to make an informed investment decision as to the acquisition of the New Topco Common Units. Subscriber and its advisers have also been provided an opportunity to review and ask questions about the Topco A&R LLC Agreement.

5.8 Marital Status. Subscriber hereby represents and warrants to Topco that he or she is not married and does not have a common law spouse or domestic partner as of the date hereof or at the Subscription Closing unless otherwise indicated on the Spousal Consent.

5.9 Taxes. Subscriber hereby agrees to indemnify the Company, Topco, Parent, Merger Sub and any of their respective subsidiaries or Affiliates (collectively the “Indemnified Parties”) and hold the Indemnified Parties harmless from any and all Liability incurred from any Taxes owed by Subscriber under applicable Law in connection with the actual or deemed payment of the Company RSU Consideration, Company PSU Consideration or Company Stock Option Consideration, as applicable.

5.10 Impact of Transaction. Any material diminution of public company duties or responsibilities resulting solely from the Company’s change in status from being a standalone public company to a private company as a result of the Contemplated Transactions, including the Merger, will not, solely by reason of such status change to a private company, be considered (or give rise to) an “Involuntary Termination” for “Good Reason” under that certain Separation Pay Agreement between the Subscriber and the Company dated [March 24, 2022] (as each such term is defined in such Separation Pay Agreement).

Section 6. Governing Law.

6.1 This Agreement will be governed by, and construed in accordance with, and all disputes arising out of or in connection with this Agreement shall be resolved under, the Laws of the State of Delaware, regardless of the Laws that might otherwise govern under applicable principles of conflicts of laws thereof.

6.2 Each of the parties hereto hereby (a) expressly and irrevocably submits to the exclusive personal jurisdiction of the Court of Chancery of the State of Delaware or, if such Court of Chancery lacks subject matter jurisdiction, the state or federal courts in the State of Delaware, in the event any dispute arises out of this Agreement or the transactions contemplated hereby, (b) 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 (c) agrees that it shall not bring any action relating to this Agreement or the transactions contemplated hereby, in any court other than the Court of Chancery of the State of Delaware or, if such Court of Chancery lacks subject matter jurisdiction, the state or federal courts in the State of Delaware; provided that each of the parties has the right to bring any action or proceeding for enforcement of a judgment entered by the aforementioned courts in any other court or jurisdiction.

6.3 Each party hereto irrevocably consents to the service of process outside the territorial jurisdiction of the courts referred to in Section 6.1 in any such action or proceeding by mailing copies thereof by registered United States mail, postage prepaid, return receipt requested, to its address as specified in or pursuant to Section 9. However, the foregoing will not limit the right of a party hereto to effect service of process on the other party by any other legally available method.

Section 7. WAIVER OF JURY TRIAL. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION ARISING OUT OF, RELATING TO OR IN CONNECTION WITH THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATION OF THIS WAIVER, (III) EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND (IV) EACH OTHER PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.

Section 8. Specific Performance. Subscriber agrees that irreparable damage (for which monetary relief, even if available, would not be an adequate remedy) would occur in the event that any of the provisions of this Agreement were not performed by Subscriber in accordance with their specific terms or were otherwise breached. It is accordingly agreed that (a) Topco shall be entitled to seek an injunction or injunctions to prevent breaches of this Agreement by Subscriber and to seek to enforce specifically the terms and provisions hereof against Subscriber in any court of competent jurisdiction without proof of damages or otherwise, and (b) the right of Topco to seek specific performance and other equitable relief is an integral part of the transaction and without that right, neither Topco nor Subscriber would have entered into this Agreement. Subscriber hereby (i) waives any defense that a remedy at Law would be adequate, (ii) waives any requirement under any Law to post a bond or other security as a prerequisite to obtaining equitable relief, and (iii) agrees not to assert that a remedy of specific performance or other equitable relief is unenforceable, invalid, contrary to law or inequitable for any reason, and not to assert that a remedy of monetary damages would provide an adequate remedy or that the parties hereto otherwise have an adequate remedy at Law.

Section 9. Notices. All notices and other communications hereunder shall be deemed delivered and effective (a) when given personally, (b) on the third (3^rd) Business Day after being mailed by first-class registered or certified mail, postage prepaid, (c) when sent via email (provided that no “bounce back” or other notice of non-delivery is generated), or (d) on the first Business Day following delivery to a reliable overnight courier service, courier fee prepaid, in any case at such address as may have been furnished to any of the other parties hereto, as the case may be, in writing by any of the other parties hereto from time to time in accordance with the provisions of this Section 9.

(a)

All notices to Topco shall be addressed as follows until Subscriber receives notice of a change of address in connection with a transfer or otherwise:

c/o Perceptive Advisors, LLC
51 Astor Place, 10^th Floor
New York, NY 10003
Attention: James Mannix, COO
Email: james@perceptivelife.com

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

Cooley LLP
500 Boylston Street, 14^th Floor
Boston, MA 02116-3736
Attention: Eric Blanchard; Amelia Runyan Davis
Email: eblanchard@cooley.com; arunyandavis@cooley.com

(b) Notice to Subscriber shall be addressed to the address set forth on Subscriber’s signature page hereto until Topco receives notice of a change in address.

Section 10. Waiver. This Agreement and any term hereof may be changed, waived, discharged or terminated (either generally or in a particular instance and either retroactively or prospectively) only by an instrument in writing signed by the party hereto against which enforcement of such change, waiver, discharge or termination is sought.

Section 11. Amendment. This Agreement may not be amended, modified, waived or terminated except by an instrument in writing, signed by Topco; provided, however, (i) any amendment, modification, or waiver that is adverse to the Subscriber and (ii) any material amendment, modification, waiver or termination to the economic terms of the transactions contemplated under this Agreement relative to the other holders of Company Equity Awards that are contributing [Company RSU Consideration, Company PSU Consideration or Company Stock Option Consideration] to Topco pursuant to a Rollover Agreement, in each case, shall require the prior written consent of Subscriber.

Section 12. Assignment. No party hereto shall have the right or the power to assign or delegate any provision of this Agreement except with the prior written consent of the other parties hereto. Except as provided in the preceding sentence, this Agreement shall be binding upon and shall inure to the benefit of the party’s respective successors, assigns, executors and administrators.

Section 13. Binding Effect; No Third-Party Beneficiaries. Nothing in this Agreement shall confer any rights upon any Person other than the parties hereto and each such party’s respective heirs, successors and permitted assigns, except as otherwise set forth herein. Furthermore, nothing in this Agreement requires Topco or its Affiliates to maintain Subscriber’s employment for any period of time.

Section 14. Counterparts. This Agreement may be executed in counterparts, including by facsimile or other means of electronic transmission (such as by DocuSign, electronic mail in “.pdf” form), each of which shall be deemed an original and all of which taken together, shall constitute one and the same document.

Section 15. Headings; Interpretive Matters. The headings in this Agreement are for purposes of reference only and shall not limit or otherwise affect the meaning or interpretation of any provision of this Agreement. Any reference to $ shall mean U.S. dollars, which is the currency used for all purposes in this Agreement. Any reference to the singular or to “him”, “her”, “it”, “itself”, or other like references, and references in the plural or the neuter, feminine or masculine reference, as the case may be, shall also, when the context so requires, be deemed to include the plural or singular, or the neuter, masculine or feminine reference, as the case may be. The words such as “herein,” “hereinafter,” “hereof” and “hereunder” that are used in this Agreement refer to this Agreement as a whole and not merely to a subdivision in which such words appear unless the context otherwise requires. The word “including” or any variation thereof means “including, without limitation” and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it. The parties hereto have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party hereto by virtue of the authorship of any provision of this Agreement. Any reference in this Agreement to a “day” or a number of “days” (without explicit reference to “Business Days”) shall be interpreted as a reference to a calendar day or number of calendar days. If any action is to be taken or given on or by a particular calendar day, and such calendar day is not a Business Day, then such action may be deferred until the next Business Day.

Section 16. Expenses. Except as otherwise provided herein, Subscriber agrees to pay any and all costs and expenses (including legal fees, costs and disbursements) incurred by Subscriber or any of its Affiliates in connection with this Agreement and the transactions contemplated hereby.

Section 18. Entire Agreement. This Agreement and the other Transaction Documents and the schedules and exhibits and other documents delivered by the parties hereto and thereto in connection herewith and therewith, contain the complete agreement among the parties hereto and thereto with respect to the transactions contemplated hereby and supersede all prior agreements and understandings between the parties hereto with respect hereto.

Section 19. Non-Recourse. Notwithstanding anything herein to the contrary, solely with respect to Topco, this Agreement may only be enforced against, and any claim or cause of action based upon, arising out of, or to the extent related to this Agreement may only be brought against Topco and its successors and assigns. Except as set forth in the immediately preceding sentence, no past, present or future director, officer, manager, employee, incorporator, member, partner, stockholder, equityholder, controlling Person, Affiliate, agent, attorney, advisor or representative of Topco, and no past, present or future director, officer, manager, employee, incorporator, member, partner, stockholder, equityholder, controlling person, Affiliate, agent, attorney, advisor or representative of any of the foregoing (each, a “Non-Recourse Party”) shall have any liability for any obligations or liabilities of Subscriber under this Agreement (whether in tort, contract or otherwise). The parties hereto acknowledge and agree that the Non-Recourse Parties are express third party beneficiaries of this Section 19, each of whom may enforce the provisions of this Section 19.

Section 20. Termination of Agreement. Subscriber’s obligation to subscribe for the New Topco Units, and Topco’s obligation to issue the New Topco Units to Subscriber, are subject to the consummation of the Merger. This Agreement and all rights and obligations of the parties hereto hereunder shall commence on the date hereof and shall terminate upon the earliest to occur of (a) the mutual written agreement of each of the parties hereto, and (b) the valid termination of the Merger Agreement pursuant to Article VII thereof; provided that, (i) nothing herein shall relieve any party hereto from liability for any intentional breach of this Agreement prior to such termination of this Agreement, and (ii) Section 6 through Section 20 hereof, which provisions and any claims or Actions in respect of the matters described in clause (i) of this proviso shall survive any termination of this Agreement.

Section 21. Further Assurances. Subscriber will take such further actions as may be reasonably necessary to implement the transactions contemplated by this Agreement as requested by Topco. In furtherance of the foregoing, Subscriber agrees to execute any further instruments and take further action as Topco requests to effect the purposes of this Agreement.

Section 22. No Limitation. Nothing in this Agreement shall be construed to prohibit Subscriber from taking any action (or failing to take any action) solely in Subscriber’s capacity as an officer or member of the Company Board or the Special Committee (including with respect to any Acquisition Proposal in accordance with the Merger Agreement). Subscriber is signing this Agreement solely in Subscriber’s capacity as the Beneficial Owner of (and/or authorized power of attorney in respect of) the Company Equity Awards set forth on Subscriber’s signature page hereto, and not in any other capacity, and this Agreement shall not limit or otherwise affect the actions (or failure to take any actions) of Subscriber or any director, employee or designee of Subscriber or any of its Affiliates, in each case solely in his or her capacity, if applicable, as an officer or director of the Company or any other Person.

Section 23. Survival of Representations and Warranties. All representations and warranties contained in this Agreement shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.

[Signature pages follow]

IN WITNESS WHEREOF, the parties have hereby executed this Agreement as of the date first above written.

	TOPCO: VERONICA HOLDINGS, LLC


	By:
	Name: Title:

SUBSCRIBER:

[●]

By:
Name:
Title:

Address of Subscriber: __________________________

Email Address of Subscriber: _____________________

Subscriber’s Country of Citizenship: _______________

[Shares subject to Company RSU Awards: ___________

Shares subject to Company PSU Awards: __________

Shares subject to Company Stock Options: __________

]

Exhibit 10.6

AMENDMENT NO. 8 TO LOAN AND SECURITY AGREEMENT

THIS AMENDMENT NO. 8 TO LOAN AND SECURITY AGREEMENT (this “Amendment”), dated as of June 17, 2024 (“Amendment No. 8 Execution Date”), is made among Vapotherm, Inc., a Delaware corporation with offices located at 100 Domain Drive, Exeter, NH 03833 (the “Borrower”), the other Loan Parties party hereto, SLR Investment Corp., a Maryland corporation with an office located at 500 Park Avenue, 3rd Floor, New York, NY 10022 (“SLR”), in its capacity as collateral agent (in such capacity, “Collateral Agent”) and the Lenders listed on Schedule 1.1 of the Loan and Security Agreement (as defined below) or otherwise a party hereto from time to time including SLR in its capacity as a Lender (each a “Lender” and collectively, the “Lenders”).

The Loan Parties, the Lenders and Collateral Agent are parties to a Loan and Security Agreement dated as of February 18, 2022 (as amended by Amendment No. 1, dated as of August 1, 2022, as further amended by Amendment No. 2, dated as of September 30, 2022, as further amended by Amendment No. 3, dated as of November 22, 2022, as further amended by Amendment No. 4 to Loan and Security Agreement, dated as of February 10, 2023, as further amended by Amendment No. 5 to Loan and Security Agreement, dated as of April 17, 2023, as further amended by Amendment No. 6 to Loan and Security Agreement, dated as of February 21, 2024, as further amended by Amendment No. 7 to Loan and Security Agreement, dated as of March 26, 2024 and as further amended, restated, supplemented or otherwise modified prior to the date hereof, the “Existing Loan and Security Agreement”; and the Existing Loan and Security Agreement as amended by this Amendment and as further amended, restated, supplemented or otherwise modified from time to time, the “Loan and Security Agreement”). Borrower has requested that the Collateral Agent and the Lenders agree to certain amendments to the Existing Loan and Security Agreement. The Collateral Agent and the Lenders have agreed to such request, subject to the terms and conditions hereof.

Accordingly, the parties hereto agree as follows:

SECTION 1 Definitions; Interpretation.

(a) Terms Defined in Loan and Security Agreement. All capitalized terms used in this Amendment (including in the recitals hereof) and not otherwise defined herein shall have the meanings assigned to them in the Loan and Security Agreement.

(b) Interpretation. The rules of interpretation set forth in Section 1.1 of the Loan and Security Agreement shall be applicable to this Amendment and are incorporated herein by this reference.

SECTION 2 Amendments to the Loan and Security Agreement. Upon satisfaction of the conditions set forth in Section 4 hereof:

(a) The Existing Credit Agreement shall be amended to delete the stricken text (indicated textually in the same manner as the following example: ~~stricken text~~) and to add the bold and double-underlined text (indicated textually in the same manner as the following example: bold and double-underlined text) as set forth on Annex A hereto.

(b) Schedule 1.1. Schedule 1.1 to the Loan and Security Agreement is hereby amended and restated in its entirety as set forth on Exhibit A hereof.

(c) Annex C Annex C of this Amendment shall be incorporated into the Existing Credit Agreement and form a part thereof.

SECTION 3 Amendments to the Loan and Security Agreement.

(a) Subject to the satisfaction of the conditions set forth in Section 5 of this Amendment, the Existing Credit Agreement shall be amended to delete the stricken text (indicated textually in the same manner as the following example: ~~stricken text~~) and to add the bold and double-underlined text (indicated textually in the same manner as the following example: bold and double-underlined text) as set forth on Annex B hereto.

(b) Schedule 1.1. Schedule 1.1 to the Loan and Security Agreement is hereby amended and restated in its entirety as set forth on Exhibit B hereof.

(c) References Within Existing Loan and Security Agreement. Each reference in the Existing Loan and Security Agreement to “this Agreement” and the words “hereof”, “herein”, “hereunder” or words of like import, shall mean and be a reference to the Existing Loan and Security Agreement as amended by this Amendment. This Amendment shall be a Loan Document.

SECTION 4 Conditions to Effectiveness of Section 2. The effectiveness of Section 2 of this Amendment shall be subject to the satisfaction of each of the following conditions precedent as of the Amendment No. 8 Execution Date:

(a) Fees and Expenses. Borrower shall have paid (i) all invoiced costs and expenses then due and payable in accordance with Section 7(e), and (ii) all other invoiced fees, costs and expenses, if any, due and payable as of the Amendment No. 8 Execution Date under the Loan and Security Agreement and the Fee Letter.

(b) This Amendment. Collateral Agent shall have received this Amendment, executed by Collateral Agent, the Lenders and each Loan Party.

(c) Fee Letter. Collateral Agent shall have received the Fee Letter, executed by Collateral Agent, the Lenders and each Loan Party.

(d) Secretary’s Certificate. A secretary’s certificate of Borrower with the respect to Borrower’s governing and formation documents, incumbency, specimen signatures and resolutions authorizing the execution and delivery of this Amendment.

(e) Good Standing. A good standing certificate of Borrower, certified by the Secretary of State of the State of incorporation of Borrower and each jurisdiction in which Borrower is qualified to do business, dated as of a date no earlier than thirty (30) days prior to the date hereof.

(f) Legal Opinion. A legal opinion of Borrower’s counsel dated as of the Amendment No. 8 Execution Date together with the duly executed signature thereto.

(g) Transaction Documents. Collateral Agent shall have received fully-executed copies of each Transaction Document entered into as of the Amendment No. 8 Execution Date.

(h) Representations and Warranties; No Default. On the Amendment No. 8 Execution Date, immediately after giving effect to the amendment of the Existing Loan and Security Agreement contemplated hereby:

(i) The representations and warranties contained in Section 6 shall be true and correct on and as of the Amendment No. 8 Execution Date as though made on and as of such date; and

(i) There exist no Events of Default or events that with the passage of time would result in an Event of Default other than as disclosed by Borrower in writing.

SECTION 5 Conditions of Effectiveness of Section 3. The effectiveness of Section 3 of this Amendment shall be subject to the satisfaction of each of the conditions precedent in Section 4 and the following conditions (the “Merger Amendment No. 8 Effective Date”):

(a) Fees and Expenses. Borrower shall have paid (i) all invoiced costs and expenses then due and payable in accordance with Section 7(e), and (ii) all other invoiced fees, costs and expenses, if any, due and payable as of the -Merger Amendment No. 8 Effective Date under the Loan and Security Agreement.

(b) Closing Date Transactions. Collateral Agent shall have received evidence, in form and substance satisfactory to Collateral Agent in its sole discretion, that the Contemplated Transactions, including, for the avoidance of doubt, the transactions contemplated by the Warrant Amendment Agreement, the Rollover Agreements, the Equity Commitment Letter and the Merger Agreement, including the Merger (provided that the Merger, for the avoidance of doubt, may occur immediately following the Merger Amendment No. 8 Effective Date), have been consummated on the Merger Amendment No. 8 Effective Date.

(c) Term B Loan Repayment. Collateral Agent shall have received payment in cash of the aggregate outstanding principal balance of all Term B Loans and any accrued but unpaid interest thereto, any fees payable pursuant to the Fee Letter on the Merger Amendment No. 8 Effective Date and all invoiced Lender’s Expenses arising from or related to the Term B Loans.

(f) Legal Opinion. A legal opinion of Borrower’s counsel dated as of the Merger Amendment No. 8 Effective Date together with the duly executed signature thereto.

(g) Transaction Documents. Collateral Agent shall have received fully executed copies of all other Transaction Documents that have been entered into on or prior to the Merger Amendment No. 8 Effective Date.

(h) Representations and Warranties; No Default. On the Merger Amendment No. 8 Effective Date, immediately after giving effect to the amendments in Section 3 and of the amendments to the Existing Loan and Security Agreement contemplated hereby:

(i) The representations and warranties contained in Section 6 shall be true and correct on and as of the Merger Amendment No. 8 Effective Date as though made on and as of such date; and

(ii) There exist no Events of Default or events that with the passage of time would result in an Event of Default other than as disclosed by Borrower in writing.

SECTION 6 Representations and Warranties. To induce the Lenders to enter into this Amendment, each Loan Party hereby confirms, as of the date hereof, immediately after giving effect to the amendments of the Loan and Security Agreement contemplated hereby, (a) that the representations and warranties made by it in Section 5 of the Loan and Security Agreement and in the other Loan Documents are true and correct in all material respects; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof, provided, further, that to the extent such representations and warranties by their terms expressly relate only to a prior date such representations and warranties shall be true and correct as of such prior date; (b) that since December 31, 2021, there has not been and there does not exist a Material Adverse Change; (c) Lender has and shall continue to have valid, enforceable and perfected first-priority liens, subject only to Permitted Liens, on and security interests in the Collateral and all other collateral heretofore granted by each Loan Party to Lender, pursuant to the Loan Documents or otherwise granted to or held by Lender; (d) the agreements and obligations of each Loan Party contained in the Loan Documents and in this Amendment constitute the legal, valid and binding obligations of each Loan Party, enforceable against each Loan Party in accordance with their respective terms, except as the enforceability thereof may be limited by bankruptcy, insolvency or other similar laws of general application affecting the enforcement of creditors’ rights or by the application of general principles of equity; and (e) the execution, delivery and performance of this Amendment by each Loan Party will not violate any law, rule, regulation, order, contractual obligation or organizational document of any Loan Party and will not result in, or require, the creation or imposition of any lien, claim or encumbrance of any kind on any of its properties or revenues.

SECTION 7 Miscellaneous.

(a) Loan Documents Otherwise Not Affected; Reaffirmation; No Novation.

(i) Except as expressly amended pursuant hereto or referenced herein, the Loan and Security Agreement and the other Loan Documents shall remain unchanged and in full force and effect and are hereby ratified and confirmed in all respects. The Lenders’ and Collateral Agent’s execution and delivery of, or acceptance of, this Amendment shall not be deemed to create a course of dealing or otherwise create any express or implied duty by any of them to provide any other or further amendments, consents or waivers in the future.

(ii) Each Loan Party hereby expressly (1) reaffirms, ratifies and confirms its Obligations under the Loan and Security Agreement and the other Loan Documents, (2) reaffirms, ratifies and confirms the grant of security under Section 4.1 of the Loan and Security Agreement, (3) reaffirms that such grant of security in the Collateral secures all Obligations under the Loan and Security Agreement, and with effect from (and including) the Amendment No. 8 Execution Date and the Merger Amendment No. 8 Effective Date, such grant of security in the Collateral: (x) remains in full force and effect notwithstanding the amendments expressly referenced herein; and (y) secures all Obligations under the Loan and Security Agreement, as amended by this Amendment, and the other Loan Documents, (4) agrees that this Amendment shall be a “Loan Document” under the Loan and Security Agreement and (5) agrees that the Loan and Security Agreement and each other Loan Document shall remain in full force and effect following any action contemplated in connection herewith.

(iii) This Amendment is not a novation and the terms and conditions of this Amendment shall be in addition to and supplemental to all terms and conditions set forth in the Loan Documents. Nothing in this Amendment is intended, or shall be construed, to constitute an accord and satisfaction of any Loan Party’s Obligations under or in connection with the Loan and Security Agreement and any other Loan Document or to modify, affect or impair the perfection or continuity of Collateral Agent’s security interest in, (on behalf of itself and the Lenders) security titles to or other liens on any Collateral for the Obligations.

(b) Conditions. For purposes of determining compliance with the conditions specified in Section 3, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless Collateral Agent shall have received notice from such Lender prior to the date hereof specifying its objection thereto.

(c) Release. In consideration of the agreements of Collateral Agent and each Lender contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Loan Party, on behalf of itself and its successors, assigns, and other legal representatives, hereby fully, absolutely, unconditionally and irrevocably releases, remises and forever discharges Collateral Agent and each Lender, and its successors and assigns, and its present and former shareholders, affiliates, subsidiaries, divisions, predecessors, directors, officers, attorneys, employees, agents and other representatives (Collateral Agent, Lenders and all such other persons being hereinafter referred to collectively as the “Releasees” and individually as a “Releasee”), of and from all demands, actions, causes of action, suits, covenants, contracts, controversies, agreements, promises, sums of money, accounts, bills, reckonings, damages and any and all other claims, counterclaims, defenses, rights of set-off, demands and liabilities whatsoever of every name and nature, known or unknown, suspected or unsuspected, both at law and in equity, which any Loan Party, or any of its successors, assigns, or other legal representatives may now or hereafter own, hold, have or claim to have against the Releasees or any of them for, upon, or by reason of any circumstance, action, cause or thing whatsoever which arises at any time on or prior to the day and date of this Amendment, including, without limitation, for or on account of, or in relation to, or in any way in connection with the Loan Agreement, or any of the other Loan Documents or transactions thereunder or related thereto. Each Loan Party understands, acknowledges and agrees that the release set forth above may be pleaded as a full and complete defense and may be used as a basis for an injunction against any action, suit or other proceeding which may be instituted, prosecuted or attempted in breach of the provisions of such release. Each Loan Party agrees that no fact, event, circumstance, evidence or transaction which could now be asserted or which may hereafter be discovered shall affect in any manner the final, absolute and unconditional nature of the release set forth above.

(d) No Reliance. Each Loan Party hereby acknowledges and confirms to Collateral Agent and the Lenders that each Loan Party is executing this Amendment on the basis of its own investigation and for its own reasons without reliance upon any agreement, representation, understanding or communication by or on behalf of any other Person.

(e) Costs and Expenses. Each Loan Party agrees to pay to Collateral Agent within ten (10) days of its receipt of an invoice (or on the Amendment No. 8 Execution Date, Merger Amendment No. 8 Effective Date and consummation of the SLR Rollover Agreement, as applicable, to the extent invoiced on or prior to the Amendment No. 8 Execution Date, Merger Amendment No. 8 Effective Date and consummation of the SLR Rollover Agreement, as applicable), the reasonable out-of-pocket costs and expenses of Collateral Agent, the Lenders party hereto, SLR and each of their respective Affiliates, and the reasonable fees, expenses and disbursements of counsel, tax advisors and accountants to Collateral Agent, the Lenders party hereto SLR and each of their respective Affiliates (including allocated costs of internal counsel), in connection with (i) the negotiation, preparation, execution and delivery of this Amendment, the Transaction Documents and any other documents and instruments to be delivered in connection herewith or therewith and/or (ii) the consummation of the transactions contemplated hereby and thereby.

(f) Indemnification. As of the Amendment No. 8 Execution Date, notwithstanding anything to the contrary in any Transaction Document, SLR Financing Agreement or otherwise, each Loan Party agrees to indemnify, defend and hold each Secured Party, SLR and their respective directors, officers, employees, consultants, agents, attorneys, or any other Person affiliated with or representing such Secured Party or SLR (each, an “Indemnified Person”) harmless against: (a) all obligations, demands, claims, and liabilities (collectively, “Claims”) asserted by any other party in connection with; related to; following from; or arising from, out of or under, the transactions contemplated by the Loan Documents, the Transaction Documents and the SLR Financing Agreements; and (b) all losses and Lenders’ Expenses incurred, or paid by an Indemnified Person in connection with; related to; following from; or arising from, out of or under, the transactions contemplated by the Loan Documents, the Transaction Documents and the SLR Financing Agreements (including reasonable and documented external attorneys’ fees and expenses), except, in each case, for Claims losses and/or Lender Expenses directly caused by such Indemnified Person’s gross negligence or willful misconduct. Each Loan Party hereby further agrees to indemnify, defend and hold each Indemnified Person harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including the reasonable and documented fees and disbursements of external counsel for such Indemnified Person) in connection with any investigative, response, remedial, administrative or judicial matter or proceeding, whether or not such Indemnified Person shall be designated a party thereto and including any such proceeding initiated by or on behalf of any Loan Party, and the reasonable and documented expenses of investigation by engineers, environmental consultants and similar technical personnel and any commission, fee or compensation claimed by any broker (other than any broker retained by Collateral Agent or Lenders) asserting any right to payment for the transactions contemplated hereby which may be imposed on, incurred by or asserted against such Indemnified Person as a result of or in connection with the transactions contemplated hereby and the use or intended use of the proceeds of the Term Loans, except for liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements directly caused by such Indemnified Person’s gross negligence or willful misconduct. This Section 7(f) shall not apply with respect to any Taxes other than any Taxes that represent losses, claims, damages, etc., arising from any non-Tax claim.

(g) Binding Effect. This Amendment binds and is for the benefit of the successors and permitted assigns of each party.

(h) Governing Law. THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS (EXCLUDING THOSE LOAN DOCUMENTS THAT BY THEIR OWN TERMS ARE EXPRESSLY GOVERNED BY THE LAWS OF ANOTHER JURISDICTION) SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

(i) Complete Agreement; Amendments. This Amendment and the Loan Documents represent the entire agreement about this subject matter and supersede prior negotiations or agreements with respect to such subject matter. All prior agreements, understandings, representations, warranties, and negotiations between the parties about the subject matter of this Amendment and the Loan Documents merge into this Amendment and the Loan Documents.

(j) Severability of Provisions. Each provision of this Amendment is severable from every other provision in determining the enforceability of any provision.

(k) Counterparts. This Amendment may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, is an original, and all taken together, constitute one Amendment. Delivery of an executed counterpart of a signature page of this Amendment by facsimile, portable document format (.pdf) or other electronic transmission will be as effective as delivery of a manually executed counterpart hereof.

(l) Loan Documents. This Amendment and the documents related thereto shall constitute Loan Documents.

(m) Electronic Execution of Certain Other Documents. The words “execution”, “execute”, “signed”, “signature” and words of like import in or related to any document to be signed in connection with this Amendment and the transactions contemplated hereby (including without limitation assignments, assumptions, amendments, waivers and consents) shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Collateral Agent, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

(n) SLR Rollover Agreement. Upon the terms of and subject to the conditions in the SLR Rollover Agreement, immediately prior to the consummation of the Merger, the Lenders will use their reasonable best efforts to consummate the transactions contemplated by the SLR Rollover Agreement.

[Balance of Page Intentionally Left Blank; Signature Pages Follow]

IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment, as of the date first above written.

BORROWER:

VAPOTHERM, INC.,
as Borrower

/s/ John Landry____________________________________

By: John Landry

Title: Senior Vice President and Chief Financial Officer

GUARANTORS:

HGE HEALTH CARE SOLUTIONS, LLC,
as a Guarantor

/s/ John Landry____________________________________

By: John Landry

Title: Senior Vice President and Chief Financial Office

VAPOTHERM ACCESS CARE MANAGEMENT

NETWORK, LLC, as a Guarantor

/s/ John Landry____________________________________

By: John Landry

Title: Senior Vice President and Chief Financial Office

VAPOTHERM ACCESS MANAGEMENT SERVICES,

LLC, as a Guarantor

/s/ John Landry____________________________________

By: John Landry

Title: Senior Vice President and Chief Financial Office

[Signature Page to Amendment No. 8 to Loan and Security Agreement]

COLLATERAL AGENT AND LENDERS:

SLR INVESTMENT CORP.,
as Collateral Agent and a Lender

By: /s/ Anthony Storino

Name: Anthony Storino

Title: Authorized Signatory

[Signature Page to Amendment No. 8 to Loan and Security Agreement]

SCP PRIVATE CREDIT INCOME FUND SPV, LLC,
as a Lender

By: /s/ Anthony Storino

Name: Anthony Storino

Title: Authorized Signatory

SCP PRIVATE CREDIT INCOME BDC SPV LLC,
as a Lender

By: /s/ Anthony Storino

Name: Anthony Storino

Title: Authorized Signatory

SCP PRIVATE CORPORATE LENDING FUND SPV LLC,
as a Lender

By: /s/ Anthony Storino

Name: Anthony Storino

Title: Authorized Signatory

SCP CAYMAN DEBT MASTER FUND SPV LLC,
as a Lender

By: /s/ Anthony Storino

Name: Anthony Storino

Title: Authorized Signatory

SCP SF DEBT FUND L.P.,
as a Lender

By: /s/ Anthony Storino

Name: Anthony Storino

Title: Authorized Signatory

SLR HC FUND SPV, LLC,
as a Lender

By: /s/ Anthony Storino

Name: Anthony Storino

Title: Authorized Signatory

SLR HC BDC LLC,
as a Lender

By: /s/ Anthony Storino

Name: Anthony Storino

Title: Authorized Signatory

[Signature Page to Amendment No. 8 to Loan and Security Agreement]

SLR CP SF DEBT FUND SPV LLC,
as a Lender

By: /s/ Anthony Storino

Name: Anthony Storino

Title: Authorized Signatory

SLR HC BDC SPV LLC,
as a Lender

By: /s/ Anthony Storino

Name: Anthony Storino

Title: Authorized Signatory

SCP PRIVATE CREDIT INCOME FUND L.P.,
as a Lender

By: /s/ Anthony Storino

Name: Anthony Storino

Title: Authorized Signatory

SCP PRIVATE CREDIT INCOME BDC LLC,
as a Lender

By: /s/ Anthony Storino

Name: Anthony Storino

Title: Authorized Signatory

SCP PRIVATE CORPORATE LENDING FUND L.P.,
as a Lender

By: /s/ Anthony Storino

Name: Anthony Storino

Title: Authorized Signatory

SLR HC ONSHORE FUND L.P.,
as a Lender

By: /s/ Anthony Storino

Name: Anthony Storino

Title: Authorized Signatory

[Signature Page to Amendment No. 8 to Loan and Security Agreement]

ANNEX A

Conformed Copy
through Amendment No. 8

LOAN AND SECURITY AGREEMENT

THIS LOAN AND SECURITY AGREEMENT (as amended by Amendment No. 1, as further amended by Amendment No. 2, as further amended by Amendment No. 3, as amended by Amendment No. 4, as further amended by Amendment No. 5, as amended by Amendment No. 6, as amended by Amendment No. 7 and as the same may be further amended, restated, amended and restated, modified, or supplemented from time to time, this “Agreement”) dated as of February 18, 2022 (the “Effective Date”) among SLR Investment Corp., a Maryland corporation with an office located at 500 Park Avenue, 3rd Floor, New York, NY 10022 (“SLR”), as collateral agent (in such capacity, together with its successors and permitted assigns in such capacity, “Collateral Agent”), and the lenders listed on Schedule 1.1 hereof or otherwise a party hereto from time to time including SLR in its capacity as a Lender (each a “Lender” and collectively, the “Lenders”), Vapotherm, Inc., a Delaware corporation with offices located at 100 Domain Drive, Exeter, NH 03833 (the “Borrower”), HGE HEALTH CARE SOLUTIONS, LLC, a Delaware limited liability company (“HGE”), VAPOTHERM ACCESS CARE MANAGEMENT NETWORK, LLC, a Delaware limited liability company (“Vapotherm Network”), and VAPOTHERM ACCESS MANAGEMENT SERVICES, LLC, an Oklahoma limited liability company (“Vapotherm Services”), as Guarantors and each other Guarantor party hereto from time to time, provides the terms on which the Lenders shall lend to Borrower and Loan Parties shall repay the Lenders. The parties agree as follows:

1. DEFINITIONS AND OTHER TERMS

1.1 Terms. Capitalized terms used herein shall have the meanings set forth in Section 1.4 to the extent defined therein. All other capitalized terms used but not defined herein shall have the meaning given to such terms in the Code. Any accounting term used but not defined herein shall be construed in accordance with GAAP and all calculations shall be made in accordance with GAAP, consistently applied; provided that all leases of any Person that were or would have been characterized as operating leases in accordance with GAAP as of December 31, 2018 (whether or not such operating leases were in effect on such date) shall be accounted for as operating leases (and not capital leases) for purposes of this Agreement regardless of any change in GAAP following such date that would otherwise require such leases to be recharacterized (on a prospective or retroactive basis or otherwise) as capital leases. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and any of the Borrower, the Collateral Agent or the Required Lenders shall so request, the Collateral Agent, the Lenders and the Borrower on behalf of the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders), provided that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Borrower shall provide to the Collateral Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. The term “financial statements” shall include the accompanying notes and schedules.

1.2 Section References. Any section, subsection, schedule or exhibit references are to this Agreement unless otherwise specified.

1.3 Divisions. For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its equity interests at such time.

1.4 Definitions. The following terms are defined in the Sections or subsections referenced opposite such terms:

“Agreement”	Preamble
“Allocable Amount”	Section 13.7(b)
“Approved Lender”	Section 12.1
“Borrower”	Preamble
“Claims”	Section 12.2

“Collateral Agent”	Preamble
“Collateral Agent Report”	Exhibit B, Section 5
“Communications”	Section 10
“Connection Income Taxes”	Exhibit I, Section 1
“Default Rate”	Section 2.3(b)
“Effective Date”	Preamble
“Event of Default”	Section 8
“Excluded Accounts”	Section 6.6(a)
“Excluded Taxes”	Exhibit I, Section 1
“FATCA”	Exhibit I, Section 1
“Guarantor Payment”	Section 13.7(a)
“Indemnified Person”	Section 12.2
“Indemnified Taxes”	Section 2.5(a)
“Lender” and “Lenders”	Preamble
“Lender Transfer”	Section 12.1
“Minimum Liquidity Requirement”	Section 7.13(b)
“New Subsidiary”	Section 6.10
“Non-Funding Lender”	Exhibit B, Section 10(c)(ii)
“Open Source Licenses”	Section 5.2(f)
“Other Connection Taxes”	Exhibit I, Section 1
“Other Lender”	Exhibit B, Section 10(c)(ii)
“Other Taxes”	Exhibit I, Section 1
“Perfection Certificate” and “Perfection Certificates”	Section 5.1
“Recipient”	Exhibit I, Section 1
“Secured Promissory Note”	Section 2.6
“SLR”	Preamble
“Taxes”	Section 2.5(a)
“Term A Loan”	Section 2.2(a)(i)
“Term Loan”	Section 2.2(a)(ii)
“Term B Loan”	Section 2.2(a)(ii)
“Transfer”	Section 7.1

In addition to the terms defined elsewhere in this Agreement, the following terms have the following meanings:

“1-Month CME Term SOFR” is the 1-month CME Term SOFR reference rate as published by the CME Term SOFR Administrator on the CME Term SOFR Administrator’s Website.

“Account” is any “account” as defined in the Code with such additions to such term as may hereafter be made under the Code, and includes, without limitation, all accounts receivable and other sums owing to any Loan Party.

“Account Debtor” is any “account debtor” as defined in the Code with such additions to such term as may hereafter be made under the Code.

“ACH Letter” is ACH debit authorization in the form of Exhibit F hereto.

“Acquisition” means any transaction, or any series of related transactions, by which any Person directly or indirectly, by means of a take-over bid, tender offer, license, amalgamation, merger, purchase of equity interests, purchase of assets, or similar transaction having the same effect as any of the foregoing, (i) acquires all or substantially all of the assets of any other Person or all or substantially all assets of any business line, division or product line (including research and development and related assets in respect of any product) of any other Person, (ii) acquires more than fifty percent (50%) of the Equity Interests of another Person which, on a fully-diluted basis (and taking into account all Equity Interests the acquiring person has the right or option to acquire) gives such acquiring Person control over such other Person, including by way of power to elect a majority of the members of the board of directors (or equivalent) of such Person or (iii) acquires, or acquires the right to use, develop or sell (in each case, including through licensing), any product, product line or Intellectual Property of or from any other Person.

“Affiliate” of any Person is a Person that owns or controls directly or indirectly the Person, any Person that controls or is controlled by or is under common control with the Person, and each of that Person’s senior executive officers, directors, partners and, for any Person that is a limited liability company, that Person’s managers and members.

“All-In Margin” means the total aggregate cash and PIK Interest rate set forth in the row labeled “All-In-Margin” in the tables set forth in the definitions of Pricing Option 1, Pricing Option 2 and Pricing Option 3.

“Amortization Date” is March 1, 2026; provided that if as of December 31, 2025, Borrower achieves Net Product Revenue greater than or equal to Sixty-Eight Million Dollars ($68,000,000.00), measured on a trailing six-month basis, calculated consistently with the methodology used in the Projections and subject to the reasonable verification by Collateral Agent (including supporting documentation reasonably requested by Collateral Agent), then, at Borrower’s written election to Collateral Agent on or prior to February 1, 2026, there shall be no Amortization Date hereunder.

“Amendment No. 1” means that certain Amendment No. 1 to Loan and Security Agreement, dated as of the Amendment No. 1 Effective Date, by and among, the Borrower, the Collateral Agent and the Lenders.

~~“Amendment No. 1 Effective Date” means August 1, 2022.~~

“Amendment No. 2” means that certain Amendment No. 2 to Loan and Security Agreement, dated as of the Amendment No. 1 Effective Date, by and among, each Loan Party, the Collateral Agent and the Lenders.

“Amendment No. 2 Effective Date” means September 30, 2022.

“Amendment No. 3” means that certain Amendment No. 3 to Loan and Security Agreement, dated as of the Amendment No. 3 Effective Date, by and among, each Loan Party, the Collateral Agent and the Lenders.

“Amendment No. 3 Effective Date” means November 22, 2022.

“Amendment No. 4 Effective Date” has the meaning assigned to such term in that certain Amendment No. 4 to Loan and Security Agreement, dated as of February 10, 2023.

“Amendment No. 7 Effective Date” means March 26, 2024.

“Amendment No. 8 Execution Date” has the meaning assigned to such term in that certain Amendment No. 8 to Loan and Security Agreement, dated as of June 17, 2024.

“Anti‑Terrorism Laws” are any laws, rules, regulations or orders relating to terrorism or money laundering, including without limitation Executive Order No. 13224 (effective September 24, 2001), the USA PATRIOT Act, the laws comprising or implementing the Bank Secrecy Act, and the laws administered by OFAC.

“Applicable Rate” means a per annum rate of interest equal to, as of June 1, 2024 (1) for Term A Loans ~~(a)~~ the ~~greater~~sum of (i) ~~1.00~~2.30% ~~and~~, plus, (ii) the Benchmark in effect from time to time, plus (b) the applicable All-In Margin (prior to May 1, 2024, an applicable portion of which may be PIK Interest, which may be extended to June 1, 2024 by Collateral Agent in its sole discretion) under Pricing Option 1, Pricing Option 2, or Pricing Option 3, in each case, to the extent available and as selected by Borrower7% of PIK Interest and (2) for Term B Loans, the sum of (i) the Benchmark in effect from time to time, (ii) 8.30% and (iii) 0.10%. Notwithstanding the foregoing, upon the occurrence of a Benchmark Transition Event, Collateral Agent may, in good faith and in consultation with the Borrower amend this Agreement to replace the then-current Benchmark in a manner consistent with other loans in Collateral Agent’s portfolio so that such changes result in a substantially similar interest rate to the interest rate in effect immediately prior to the effectiveness of such Benchmark, and any such amendment shall become effective at 5:00 p.m. New York time on the third Business Day after Collateral Agent has notified Borrower of such amendment. Any determination, decision or election that may be made by Collateral Agent pursuant hereto will be conclusive and binding absent manifest error and may be made in Collateral Agent’s sole discretion and without consent from any other ~~partyr~~party.

“Approved Fund” is any (i) investment company, fund, trust, securitization vehicle or conduit that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business or (ii) any Person (other than a natural person) which temporarily warehouses loans for any Lender or any entity described in the preceding clause (i) and that, with respect to each of the preceding clauses (i) and (ii), is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) a Person (other than a natural person) or an Affiliate of a Person (other than a natural person) that administers or manages a Lender.

“Benchmark” is, initially, the 1-Month CME Term SOFR plus the SOFR Adjustment; provided, that if a Benchmark Transition Event has occurred with respect to the 1-Month CME Term SOFR or the then-current Benchmark, then “Benchmark” is the applicable replacement rate that has replaced the immediately preceding benchmark rate pursuant to the defined term “Applicable Rate”.

“Benchmark Transition Event” is the occurrence of one or more of the following events with respect to the then-current Benchmark:

(a) a public statement or publication of information by or on behalf of the administrator for such Benchmark announcing that such Person has ceased or will cease to provide such Benchmark, permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide such Benchmark;

(b) a public statement or publication of information by the regulatory supervisor for the administrator for such Benchmark, the U.S. Federal Reserve System, an insolvency official with jurisdiction over the administrator for such Benchmark, a resolution authority with jurisdiction over the administrator for such Benchmark or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark, which states that the administrator for such Benchmark has ceased or will cease to provide such Benchmark permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide such Benchmark;

(c) a public statement or publication of information by the administrator of such Benchmark or the regulatory supervisor for the administrator for such Benchmark announcing that such Benchmark is not, or as of a specified future date will not be, representative or in compliance with the International Organization of Securities Commissions Principles for Financial Benchmarks.

“Blocked Person” is: (a) any Person listed in the annex to Executive Order No. 13224, (b) any Person owned or controlled by, or to the actual knowledge of any Responsible Officer of any Loan Party, any Person acting for or on behalf of, any Person that is listed in the annex to Executive Order No. 13224, (c) to the actual knowledge of any Responsible Officer of any Loan Party, any Person with which any Lender is prohibited from dealing with in any transaction in violation of any Anti-Terrorism Law or (d) any Person named a “specially designated national” or “blocked person” on the most current list published by OFAC.

“Borrower’s Books” are Borrower’s or any of the Guarantor’s books and records including ledgers, federal, state, local and foreign tax returns, records regarding Borrower’s or the Guarantor’s assets or liabilities, the Collateral, business operations or financial condition, and all computer programs or storage or any equipment containing such information.

“Business Day” is any day that is not a Saturday, Sunday or a day on which commercial banks in New York, New York are required or authorized to be closed.

“Cash Equivalents” are (a) marketable direct obligations issued or unconditionally guaranteed by the United States or any agency or any State thereof having maturities of not more than one (1) year from the date of acquisition and having the highest rating from either Standard & Poor’s Ratings Group or Moody’s Investors Service, Inc.; (b) commercial paper maturing no more than one (1) year after its creation and having the highest rating from either Standard & Poor’s Ratings Group or Moody’s Investors Service, Inc., (c) certificates of deposit maturing no more than one (1) year after issue provided that the account in which any such certificate of deposit is maintained is subject to a Control Agreement in favor of Collateral Agent unless such certificates of deposit are entered into to secure (or backstop) Permitted Indebtedness, and (d) any money market or similar funds that exclusively hold any of the foregoing.

“CME Term SOFR Administrator” is CME Group Benchmark Administration Limited, as administrator of the forward-looking term SOFR, or any successor administrator.

“CME Term SOFR Administrator’s Website” is the website of the CME Group Benchmark Administrator at http://www.cmegroup.com, or any successor source.

“Code” is the Uniform Commercial Code, as the same may, from time to time, be enacted and in effect in the State of New York; provided, that, to the extent that the Code is used to define any term herein or in any Loan Document and such term is defined differently in different Articles or Divisions of the Code, the definition of such term contained in Article or Division 9 shall govern; provided further, that in the event that, by reason of mandatory provisions of law, any or all of the attachment, perfection, or priority of, or remedies with respect to, Collateral Agent’s Lien on any Collateral is governed by the Uniform Commercial Code in effect in a jurisdiction other than the State of New York, the term “Code” shall mean the Uniform Commercial Code as enacted and in effect in such other jurisdiction solely for purposes of the provisions thereof relating to such attachment, perfection, priority, or remedies and for purposes of definitions relating to such provisions.

“Collateral” is any and all properties, rights and assets of the Borrower and any Guarantor described on Exhibit A.

“Collateral Account” is any Deposit Account, Securities Account, or Commodity Account, or any other bank account maintained by Borrower or any Guarantor at any time, in each case, other than any Excluded Account.

“Commitment Percentage” is set forth in Schedule 1.1, as amended from time to time.

“Commodity Account” is any “commodity account” as defined in the Code with such additions to such term as may hereafter be made under the Code.

“Compliance Certificate” is that certain certificate in substantially the form attached hereto as Exhibit D.

“Contemplated Transactions” has the meaning ascribed to such term in the Merger Agreement.

“Contingent Obligation” is, for any Person, any direct or indirect liability, contingent or not, of that Person for (a) any indebtedness, lease, dividend, letter of credit or other obligation of another such as an obligation directly or indirectly guaranteed, endorsed, co‑made, discounted or sold with recourse by that Person, or for which that Person is directly or indirectly liable; (b) any obligations for undrawn letters of credit for the account of that Person; and (c) all obligations from any interest rate, currency or commodity swap agreement, interest rate cap or collar agreement, or other agreement or arrangement designated to protect a Person against fluctuation in interest rates, currency exchange rates or commodity prices; but “Contingent Obligation” does not include endorsements in the ordinary course of business. The amount of a Contingent Obligation is the stated or determined amount of the primary obligation for which the Contingent Obligation is made or, if not determinable, the maximum reasonably anticipated liability for it determined by the Person in good faith and, to the extent applicable, in accordance with GAAP; but the amount may not exceed the maximum of the obligations under any guarantee or other support arrangement.

“Control Agreement” is any control agreement entered into among the depository institution at which Borrower or any Guarantor maintains a Deposit Account or the securities intermediary or commodity intermediary at which Borrower or any Guarantor maintains a Securities Account or a Commodity Account, Borrower or such Guarantor, as applicable, and Collateral Agent pursuant to which Collateral Agent, for the ratable benefit of the Secured Parties, obtains “control” (within the meaning of the Code) over such Deposit Account, Securities Account, or Commodity Account.

“Copyrights” are any and all copyright rights, copyright applications, copyright registrations and like protections in each work or authorship and derivative work thereof, whether published or unpublished and whether or not the same also constitutes a trade secret.

“Deposit Account” is any “deposit account” as defined in the Code with such additions to such term as may hereafter be made under the Code.

“Disqualified Institution” is, as of the date of determination, a Person (i) identified by the Borrower in writing to the Collateral Agent on or prior to the Effective Date as a competitor (or as an Affiliate of a competitor) of the Borrower and its Subsidiaries, (ii) identified by the Borrower in writing to the Collateral Agent from time to time after the Effective Date as a competitor (or as an Affiliate of a competitor) of the Borrower and its Subsidiaries and (iii) any reasonably identifiable Affiliate of any Person referred to in clauses (i) or (ii) above solely on the basis of its name; provided that the foregoing shall not apply retroactively to disqualify any Persons that have previously acquired an assignment or participation interest in the Term Loans to the extent such party was not a Disqualified Institution at the time of the applicable assignment or participation, as the case may be.

“Dollars,” “dollars” and “$” each mean lawful money of the United States.

“Domestic Subsidiary” means a Subsidiary that is organized under the laws of the United States or any state or territory thereof.

“Eligible Assignee” is (i) a Lender, (ii) an Affiliate of a Lender, (iii) an Approved Fund and (iv) any commercial bank, savings and loan association or savings bank or any other entity which is an “accredited investor” (as defined in Regulation D under the Securities Act of 1933, as amended) and which extends credit or buys loans as one of its businesses, including insurance companies, mutual funds, lease financing companies and commercial finance companies, in each case, which either (A) has a rating of BBB or higher from Standard & Poor’s Rating Group and a rating of Baa2 or higher from Moody’s Investors Service, Inc. at the date that it becomes a Lender or (B) has total assets in excess of One Billion Dollars ($1,000,000,000.00); provided that notwithstanding the foregoing, “Eligible Assignee” shall not include, unless an Event of Default has occurred and is continuing, (1) Borrower or any of Borrower’s Affiliates or Subsidiaries, or (2) a Disqualified Institution. Notwithstanding the foregoing, (x) in connection with any assignment by a Lender as a result of a forced divestiture at the request of any regulatory agency, the restrictions set forth above in this definition shall not apply and Eligible Assignee shall mean any Person or party and (y) in connection with a Lender’s own financing or securitization transactions, the restrictions set forth above in this definition shall not apply and Eligible Assignee shall mean any Person or party providing such financing or formed to undertake such securitization transaction and transferee of such Person or party upon the occurrence of a default, event of default or similar occurrence, with respect to such financing or securitization transaction; provided that no such sale, transfer, pledge or assignment under this clause (y) shall release such Lender from any of its obligations hereunder or substitute any such Person or party for such Lender as a party hereto until Collateral Agent shall have received and accepted an effective assignment agreement from such Person or party in form satisfactory to Collateral Agent executed, delivered and fully completed by the applicable parties thereto, and shall have received such other information regarding such Eligible Assignee as Collateral Agent reasonably shall require.

“Equipment” is all “equipment” as defined in the Code with such additions to such term as may hereafter be made under the Code, and includes without limitation all machinery, fixtures, goods, vehicles (including motor vehicles and trailers), and any interest in any of the foregoing.

“Equity Commitment Letter” has the meaning ascribed to such term in the Merger Agreement.

“ERISA” is the Employee Retirement Income Security Act of 1974, as amended, and its regulations.

“Exigent Circumstance” means any event or circumstance that, in the reasonable judgment of Collateral Agent, imminently threatens the ability of Collateral Agent to realize upon all or any material portion of the Collateral, such as, without limitation, fraudulent removal, concealment, or abscondment thereof, destruction or material waste thereof, or failure of Borrower or any of its Subsidiaries after reasonable demand to maintain or reinstate casualty insurance coverage required by Section 6.5, or which, in the judgment of Collateral Agent, could reasonably be expected to result in a material diminution in value of the Collateral.

“Existing Credit Facilities” refers to that certain Loan and Security Agreement, dated as of October 1, 2020 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to the Effective Date), between the Borrower and Canadian Imperial Bank of Commerce and all “Loan Documents” referred to therein.

“FDA” means the U.S. Food and Drug Administration or any successor thereto.

“Fee Letter” means that certain Fee Letter dated the Effective Date, between the Borrower and SLR and acknowledged by the other Loan Parties, as amended and restated on the Amendment No. 2 Effective Date, as further amended and restated on the Amendment No. 3 Effective Date, as further amended and restated on the Amendment No. 4 Effective Date ~~(as defined in that certain Amendment No. 4 to Loan and Security Agreement, dated as of February 10, 2023)~~, as further amended and restated on the Amendment No. 7 Effective Date, as further amended and restated on the Amendment No. 8 Execution Date, and as further amended, amended and restated, supplemented or otherwise modified from time to time.

“Foreign Subsidiary” means a Subsidiary that is not a Domestic Subsidiary.

“Funding Date” is any date on which a Term Loan is made to or on account of Borrower which shall be a Business Day.

“GAAP” is generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other Person as may be approved by a significant segment of the accounting profession in the United States, which are applicable to the circumstances as of the date of determination.

“General Intangibles” are all “general intangibles” as defined in the Code with such additions to such term as may hereafter be made under the Code, and includes without limitation, all copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished, any patents, trademarks, service marks and, to the extent permitted under applicable law, any applications therefor, whether registered or not, any trade secret rights, including any rights to unpatented inventions, payment intangibles, royalties, contract rights, goodwill, franchise agreements, purchase orders, customer lists, route lists, telephone numbers, domain names, claims, income and other tax refunds, security and other deposits, options to purchase or sell real or personal property, rights in all litigation presently or hereafter pending (whether in contract, tort or otherwise), insurance policies (including without limitation key man, property damage, and business interruption insurance), payments of insurance and rights to payment of any kind.

“Governmental Approval” is any consent, authorization, approval, order, license, franchise, permit, certificate, accreditation, registration, filing or notice, of, issued by, from or to, or other act by or in respect of, any Governmental Authority.

“Governmental Authority” is any federal, state, municipal, national or other government, governmental department, commission, board, bureau, court, agency or instrumentality or political subdivision thereof (including the FDA), or any entity or officer exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to any government or any court, in each case whether associated with a state or locality of the United States, the United States, or a foreign government.

“Guarantor” is any Person providing a Guaranty in favor of Collateral Agent for the benefit of the Secured Parties (including without limitation pursuant to Section 6.10 and/or Section 13).

“Guaranty” is any guarantee in form and substance reasonably satisfactory to the Collateral Agent and the applicable Guarantor of all or any part of the Obligations, as the same may from time to time be amended, restated, modified or otherwise supplemented.

“Indebtedness” is (without duplication) (a) indebtedness for borrowed money or the deferred price of property or services (other than trade payables in the ordinary course of business and not overdue by more than 90 days,), (b) obligations evidenced by notes, bonds, debentures or similar instruments, (c) all obligations of such Person as lessee under capital lease obligations that have been or should be recorded as liabilities on a balance sheet of such Person in accordance with GAAP, (d) non-contingent obligations of such Person to reimburse any bank or other Person in respect of amounts paid under a letter of credit, banker’s acceptance, surety bonds or similar instruments, (e) equity securities of such Person subject to repurchase or redemption prior to the Maturity Date other than at the sole option of such Person (f) Indebtedness secured by a Lien on any asset of such Person, whether or not such obligation is otherwise an obligation of such Person (with the amount thereof being measured as the fair market value of such property), (g) “earnouts” (to the extent due and owing and not paid in a timely manner), purchase price adjustments, profit sharing arrangements, deferred purchase money amounts and similar payment obligations or continuing obligations of any nature of such Person arising out of purchase and sale contracts (in each case, other than trade payables in the ordinary course of business), (h) all Indebtedness of others guaranteed by such Person, (i) off-balance sheet liabilities and/or pension plan or multiemployer plan liabilities of such Person, (j) obligations arising under non-compete agreements, (k) obligations arising under bonus, deferred compensation, incentive compensation or similar arrangements, other than those arising in the ordinary course of business and (l) Contingent Obligations.

“Insolvency Proceeding” is any proceeding by or against any Person under the United States Bankruptcy Code, or any other bankruptcy or insolvency law, including assignments for the benefit of creditors, compositions or proceedings seeking reorganization, arrangement, or other relief.

“Insolvent” means not Solvent.

“Intellectual Property” means all of Borrower’s or any of its Subsidiaries’ right, title and interest in and to the following:

(a) its Copyrights, Trademarks and Patents;

(b) any and all trade secrets and trade secret rights, including, without limitation, any rights to unpatented inventions, know‑how, operating manuals;

(d) any and all design rights which may be available to Borrower or any of its Subsidiaries;

(e) any and all claims for damages by way of past, present and future infringement of any of the foregoing, with the right, but not the obligation, to sue for and collect such damages for said use or infringement of the Intellectual Property rights identified above; and

(f) all amendments, renewals and extensions of any of the Copyrights, Trademarks or Patents.

“Intellectual Property Security Agreement” means any Intellectual Property Security Agreement between Borrower (or a Guarantor) and Collateral Agent, as the same may from time to time be amended, restated, modified or otherwise supplemented.

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

“Inventory” is all “inventory” as defined in the Code with such additions to such term as may hereafter be made under the Code, and includes without limitation all merchandise, raw materials, parts, supplies, packing and shipping materials, work in process and finished products, including without limitation such inventory as is temporarily out of any Person’s custody or possession or in transit and including any returned goods and any documents of title representing any of the above.

“Investment” is any beneficial ownership interest in any Person (including stock, partnership interest or other securities), and any loan, advance or capital contribution to any Person.

“IRS” means the United States Internal Revenue Service.

“Key Person” is each of Borrower’s (i) President and Chief Executive Officer, who is Joseph Army as of the Effective Date and (ii) Chief Financial Officer, who is John Landry as of the Effective Date.

“Knowledge” means to the “best of” any Loan Party’s knowledge, or with a similar qualification, knowledge or awareness means the actual knowledge, after reasonable investigation, of the Responsible Officers.

“Lender” is any one of the Lenders.

“Lenders” are the Persons identified on Schedule 1.1 hereto and each assignee that becomes a party to this Agreement pursuant to Section 12.1.

“Lenders’ Expenses” are (a) all reasonable and documented out-of-pocket audit fees and expenses, costs, and expenses (including reasonable and documented attorneys’ fees and expenses of outside counsel, as well as appraisal fees, fees incurred on account of lien searches, inspection fees, and filing fees) for preparing, amending, negotiating and administering the Loan Documents, all as incurred by SLR, in its capacity as a Lender and as Collateral Agent, ~~and~~ (b) all reasonable and documented out-of-pocket fees and expenses (including reasonable and documented attorneys’ fees of outside counsel and expenses, as well as appraisal fees, fees incurred on account of lien searches, inspection fees, and filing fees) for defending and enforcing the Loan Documents (including, without limitation, those incurred in connection with appeals or Insolvency Proceedings) incurred by Collateral Agent and/or the Lenders. and (c) all reasonable and documented out-of-pocket fees and expenses (including reasonable and documented attorneys’ fees, disbursements and expenses of outside counsel, fees, disbursements and expenses of accountants and other advisors, as well as appraisal fees, fees and expenses incurred on account of lien searches, inspection fees, and filing fees) incurred by Collateral Agent, the Lenders, SLR and any of their respective Affiliates pursuant to or in connection with the Contemplated Transactions and the transactions contemplated by the SLR Financing Agreements, and the consummation thereof, and/or the negotiation, execution and delivery of the Transaction Documents and the SLR Financing Agreements.

“Lien” is a claim, mortgage, deed of trust, levy, charge, pledge, security interest, or other encumbrance of any kind, whether voluntarily incurred or arising by operation of law or otherwise against any property.

“Liquidity” means, as of any date of determination, the sum of (a) the aggregate amount of Qualified Cash of the Loan Parties minus (b) the Qualified Cash A/P Amount.

“Loan Documents” are, collectively, this Agreement, the Fee Letter, the Warrants, the Pledge Agreement, each Control Agreement, each Intellectual Property Security Agreement, the Perfection Certificates, the ACH Letter, each Compliance Certificate, each Loan Payment Request Form, any Guarantees, any subordination agreements relating to this Agreement, any note, or notes or guaranties executed by Borrower or any Guarantor in favor of the Collateral Agent or any Lender in connection with this Agreement, any agreements creating or perfecting rights in the Collateral (including all insurance certificates and endorsements, landlord consents and bailee consents) and any other present or future agreement entered into by Borrower or any Guarantor in favor of the Collateral Agent or any Lender in connection with this Agreement; all as amended, restated, or otherwise modified.

“Loan Party” means Borrower and each Guarantor.

“Loan Payment Request Form” is that certain form attached hereto as Exhibit C.

“Material Adverse Change” is (a) a material adverse change in the business, operations or condition (financial or otherwise) of Borrower and its Subsidiaries, when taken as a whole; or (b) a material impairment of (i) the prospect of repayment of any portion of the Obligations, (ii) the legality, validity or enforceability of any Loan Document, (iii) the rights and remedies of Collateral Agent or Lenders under any Loan Document except as the result of the action or inaction of the Collateral Agent or Lenders or (iv) the validity, perfection or priority of any Lien in favor of Collateral Agent for the benefit of the Secured Parties on any material portion of the Collateral except as the result of the action or inaction of the Collateral Agent or Lenders.

“Material Agreement” is any license, agreement or other contractual arrangement whereby Borrower or any of its Subsidiaries is reasonably likely to be required to transfer, either in-kind or in cash, assets or property valued (book or market) at more than Two Million and Five Hundred Thousand Dollars ($2,500,000.00) in the aggregate under, such license, agreement or other contractual arrangement in any calendar year.

“Maturity Date” is, for each Term A Loan, ~~February 1~~July 15, 2027.

"Merger” has the meaning ascribed to such term in the Merger Agreement.

“Merger Agreement” means the Agreement and Plan of Merger, dated as of June 17, 2024, among Veronica Holdings, LLC (“Topco”), Veronica Intermediate Holdings, LLC (“Parent”), Veronica Merger Sub, Inc. (“Merger Sub”) and Borrower, as the same may from time to time be amended, restated, modified or otherwise supplemented.

“Minimum Net Equity Proceeds Milestone” means Borrower’s receipt of at least $25,000,000.00 in unrestricted (including, not subject to any redemption, clawback, escrow or similar encumbrance or restriction) net cash proceeds from a bona fide equity financing or series of equity financings after the Amendment No. 3 Effective Date and prior to July 1, 2023.

“Minimum Net Equity Proceeds Milestone 2” means Borrower’s receipt of at least $30,000,000.00 in unrestricted (including, not subject to any redemption, clawback, escrow or similar encumbrance or restriction) net cash proceeds from a bona fide equity financing or series of equity financings after the Amendment No. 3 Effective Date and prior to January 1, 2024.

“Net Product Revenue” means, as of a date of determination, product revenue (determined under GAAP) with respect to sale of ordinary course product and service offerings of Borrower and its Subsidiaries and related services directly sold with such product and service offerings, in each case determined in a manner consistent with the financial statements delivered to Collateral Agent on or prior to the Effective Date (including, for the avoidance of doubt, revenue from the discontinued operations of Vapo/~~Acess~~Access and Respricare); provided that any revenue associated with any Acquisition shall only contribute to Net Product Revenue to the extent such revenue is actually received following the consummation of such Acquisition and otherwise qualifies as Net Product Revenue.

“Non-Loan Party” means any Subsidiary of Borrower that is not a Loan Party.

“Obligations” are all of each Loan Party’s obligations to pay when due any debts, principal, interest, Lenders’ Expenses, the Prepayment Premium, all fees under the Fee Letter and any other amounts any Loan Party owes the Collateral Agent or the Lenders, in connection with, related to, or arising from, out of, or under, this Agreement, or the other Loan Documents, and including interest accruing after Insolvency Proceedings begin (whether or not allowed), including any such debts, liabilities, or obligations of any Loan Party assigned to the Lenders and/or Collateral Agent, and the performance of any Loan Party’s duties under the Loan Documents.

“OFAC” is the U.S. Department of Treasury Office of Foreign Assets Control.

“OFAC Lists” are, collectively, the Specially Designated Nationals and Blocked Persons List maintained by OFAC pursuant to Executive Order No. 13224, 66 Fed. Reg. 49079 (Sept. 25, 2001) and/or any other list of terrorists or other restricted Persons maintained pursuant to any of the rules and regulations of OFAC or pursuant to any other applicable Executive Orders.

“Operating Documents” are, for any Person, such Person’s formation documents, as certified by the Secretary of State (or equivalent agency) of such Person’s jurisdiction of organization on a date that is no earlier than thirty (30) days prior to the Effective Date, and, (a) if such Person is a corporation, its bylaws in current form, (b) if such Person is a limited liability company, its limited liability company agreement (or similar agreement), and (c) if such Person is a partnership, its partnership agreement (or similar agreement), each of the foregoing with all current amendments or modifications thereto.

“Patents” means all patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, re-examination certificates, utility models, extensions and continuations-in-part of the same.

“Payment Date” is the first (1^st) calendar day of each calendar month, commencing on March 1, 2022.

“Perceptive Funds” means Perceptive Advisors, LLC or its applicable Affiliates.

“Permitted Acquisition” means any Acquisition by Borrower or any Subsidiary of the Borrower as to which each of the following conditions is satisfied:

(a) immediately prior to, and after giving effect thereto, no default or Event of Default shall have occurred and be continuing or could reasonably be expected to result therefrom;

(b) all transactions in connection therewith shall be consummated, in all material respects, in accordance with all applicable laws, and in conformity with all applicable Governmental Approvals;

(c) in the case of the purchase of equity interests, such acquired target shall become a direct or indirect Subsidiary of the Borrower;

(d) the Borrower shall have taken, or caused to be taken, as of the date such acquired target becomes a Subsidiary of the Borrower, each of the actions required by Section 6.10 and Section 6.11 and as otherwise required under any Loan Document, as applicable;

(e) after giving pro forma effect to such Acquisition as if it occurred on the first day of the applicable six-month period, the Borrower shall be in compliance with financial covenants set forth in Section 7.13;

(f) the consideration (including cash and non-cash consideration, assumed liabilities, and any deferred or contingent consideration) payable in connection with all such Acquisitions shall not exceed (i) $5,000,000 during any consecutive twelve month period, and (ii) $10,000,000 during the term of this Agreement, in each case, in the aggregate, provided that non-cash consideration shall be valued at the valuation established in such Acquisition, or as otherwise reasonably approved by the Collateral Agent;

(g) promptly upon request by the Collateral Agent in the case of an Acquisition, the Borrower shall provide the following no later than ten (10) days prior to consummation of such Acquisition:

(i) a copy of the draft transaction documents related to the proposed Acquisition (and related documents requested by the Collateral Agent),

(ii) except in case of an Acquisition of assets not expected to result in any material change to operating income or operating expenses, quarterly and annual financial statements of the target for the most recently ended twelve month period ending not less than forty five (45) days prior to such Acquisition, including any audited financial statements that are available, and

(iii) any other information reasonably requested by the Collateral Agent and available to any Loan Party;

(h) the Borrower shall have provided the Collateral Agent with at least ten (10) Business Days’ (or such shorter period as agreed by the Collateral Agent) prior written notice of any such Acquisition, together with summaries, prepared in reasonable detail, of all due diligence conducted by or on behalf of the Borrower or the applicable Subsidiary, as applicable, prior to such Acquisition;

(i) the Collateral Agent shall have received a certificate of a Responsible Officer of the Borrower (prepared in reasonable detail), certifying as to any contingent liabilities and prospective research and development costs associated with the Person or assets being acquired;

(j) such Acquisition shall not include any hostile Acquisition;

(k) such Acquisition shall be cash flow neutral or accretive; and

(l) at least three (3) Business Days prior to the proposed date of such Acquisition (or such shorter period as agreed by the Collateral Agent), the Collateral Agent shall have received a certificate of a Responsible Officer of the Borrower (prepared in reasonable detail), certifying that such Acquisition complies with this definition, including calculations as to pro forma covenant compliance, in a form reasonably satisfactory to the Collateral Agent.

“Permitted Indebtedness” is:

(a) Each Loan Party’s Indebtedness under this Agreement and the other Loan Documents;

(b) Indebtedness existing on the Effective Date and disclosed on the Perfection Certificate;

(c) Indebtedness arising under letters of credit issued for the account of the Borrower or any of its Subsidiaries, in an aggregate face amount for all such letters of credit not to exceed $1,250,000 in the aggregate at any time;

(d) unsecured Indebtedness to trade creditors;

(e) Indebtedness consisting of capitalized lease obligations and purchase money Indebtedness, in each case incurred by Borrower or any of its Subsidiaries to finance the acquisition, repair, improvement or construction of fixed or capital assets of such person, provided that (i) the aggregate outstanding principal amount of all such Indebtedness does not exceed Seven Hundred Fifty Thousand Dollars ($750,000.00) at any time and (ii) the principal amount of such Indebtedness does not exceed the cost of the property so acquired or built or of such repairs or improvements financed with such Indebtedness (each measured at the time of such acquisition, repair, improvement or construction is made);

(f) Indebtedness incurred as a result of endorsing negotiable instruments received in the ordinary course of Borrower’s or its Subsidiaries’ business;

(g) [reserved];

(h) extensions, refinancings, modifications, amendments and restatements of any items of Permitted Indebtedness (a) through (e) above, provided that the principal amount thereof is not increased (other than by an amount not to exceed the amount of (i) any accrued but unpaid interest, fees and expenses and premiums related to the debt being refinanced and (ii) customary fees and expenses incurred in connection with such extension, refinancing, modification, amendment or restatement), and the terms thereof are not modified to impose materially more burdensome terms upon Borrower or its Subsidiary, as the case may be;

(i) Contingent Obligations in respect of Indebtedness that otherwise constitutes Permitted Indebtedness;

(j) Indebtedness incurred in connection with the financing of insurance premiums in the ordinary course of business in an outstanding principal amount not to exceed Seven Hundred Fifty Thousand Dollars ($750,000.00) in the aggregate at any time;

(k) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within two (2) Business Days of notice to Borrower or the relevant Subsidiary of its incurrence;

(l) Indebtedness arising in connection with the Borrower’s credit card program and other cash management services incurred in the ordinary course of business and in an aggregate amount not to exceed Seven Hundred Fifty Thousand Dollars ($750,000) outstanding at any time;

(m) Indebtedness constituting Permitted Investments;

(n) Indebtedness on account of hedging arrangements entered into by the Borrower or any of its Subsidiaries for non-speculative purposes; and

(o) other Indebtedness in an aggregate outstanding principal amount not to exceed Seventy-Five Thousand Dollars ($75,000.00) at any time; provided that such Indebtedness shall not be secured by “all assets” or “substantially all assets” of the Borrower or any Guarantor.

“Permitted Investments” are:

(a) Investments disclosed on the Perfection Certificate and existing on the Effective Date;

(b) (i) Investments consisting of cash and Cash Equivalents, and (ii) any Investments permitted by Borrower’s investment policy, as amended from time to time, provided that such investment policy (and any such amendment thereto) has been approved in writing by Collateral Agent in its reasonable discretion; provided further that the investment policy delivered to the Collateral Agent on or prior to the Effective Date is deemed approved by the Collateral Agent;

(c) Investments consisting of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of Borrower or of any of its Subsidiaries;

(d) Investments consisting of guarantees by the Borrower or any of its Subsidiaries of obligations of the Borrower or any of its Subsidiaries consisting of (a) Permitted Indebtedness or (b) obligations that do not constitute Indebtedness;

(e) Investments in connection with Transfers permitted by Section 7.1;

(f) Investments consisting of (i) travel advances and employee relocation loans and other employee loans and advances in the ordinary course of business, and (ii) loans to employees, officers or directors relating to the purchase of equity securities of Borrower or its Subsidiaries pursuant to employee stock purchase plans or agreements approved by Borrower’s board of directors; not to exceed Three Hundred Thousand Dollars ($300,000.00) in the aggregate for (i) and (ii) in any fiscal year;

(g) Investments (including debt obligations) received in connection with the bankruptcy or reorganization of customers or suppliers and in settlement of delinquent obligations of, and other disputes with, customers or suppliers arising in the ordinary course of business;

(h) Investments consisting of notes receivable of, or prepaid royalties and other credit extensions, to customers and suppliers who are not Affiliates, in the ordinary course of business; provided that this paragraph (h) shall not apply to Investments of Borrower in any Subsidiary;

(i) (A) Investments between the Borrower and any Guarantor, (B) Investments by the Borrower or any Guarantor in Subsidiaries that are not Guarantors, not to exceed Six Hundred Thousand Dollars ($600,000.00) in any fiscal year and (C) Investments by Subsidiaries that are not Guarantors in the Borrower or any Guarantor or in any other Subsidiary that is not a Guarantor;

(j) Investments in joint ventures or strategic alliances in the ordinary course of Borrower’s or any of its Subsidiary’s business consisting of the non‑exclusive licensing of technology, the development of technology or the providing of technical support, provided that any cash Investments by the Borrower and its Subsidiaries in reliance on this clause (j) do not exceed Five Hundred Thousand Dollars ($500,000.00) in the aggregate in any fiscal year;

(k) Permitted Acquisitions;

(l) Investments consisting of hedging arrangements entered into by the Borrower or any of its Subsidiaries for non-speculative purposes and in an aggregate notional amount for all such hedging agreements not in excess of $250,000; and

(m) other Investments not to exceed Seventy Five Thousand Dollars ($75,000.00) during any fiscal year.

“Permitted Licenses” are (A) licenses of over-the-counter software that is commercially available to the public, and (B) non‑exclusive licenses for the use of the Intellectual Property of Borrower or any of its Subsidiaries entered into in the ordinary course of business, provided, that, with respect to each such license described in clause (B), the license constitutes an arms‑length transaction, the terms of which, on their face, do not provide for a sale or assignment of any Intellectual Property and do not restrict the ability of Borrower or any of its Subsidiaries, as applicable, to pledge, grant a security interest in or lien on, or assign or otherwise Transfer any Intellectual Property.

“Permitted Liens” are:

(a) Liens existing on the Effective Date and disclosed on the Perfection Certificate;

(b) Liens for Taxes, fees, assessments or other government charges or levies, either (i) not due and payable or (ii) being contested in good faith by appropriate proceedings diligently conducted and for which Borrower or the applicable Subsidiary maintains adequate reserves on its books;

(c) Liens securing Indebtedness permitted under clause (e) of the definition of “Permitted Indebtedness,” provided that (i) such liens exist prior to the acquisition of, or attach substantially simultaneous with, or within sixty (60) days after the, acquisition, lease, repair, improvement or construction of, such property financed or leased by such Indebtedness and (ii) such liens do not extend to any property of Borrower or any Subsidiary thereof other than the property (and proceeds thereof) acquired, leased or built, or the improvements or repairs, financed by such Indebtedness;

(d) Liens of carriers, warehousemen, suppliers, or other Persons that are possessory in nature arising in the ordinary course of business so long as such Liens secure liabilities which are not delinquent or remain payable without penalty or which are being contested in good faith and by appropriate proceedings which proceedings have the effect of preventing the forfeiture or sale of the property subject thereto;

(e) Liens to secure payment of workers’ compensation, employment insurance, old‑age pensions, social security and other like obligations incurred in the ordinary course of business (other than Liens imposed by ERISA);

(f) Liens incurred in the extension, renewal or refinancing of the Indebtedness secured by Liens described in (a) and (c), but any extension, renewal or replacement Lien must be limited to the property encumbered by the existing Lien and the principal amount of the Indebtedness may not increase (other than by an amount not to exceed the amount of (i) any accrued but unpaid interest, fees and expenses and premiums related to the Indebtedness being extended, renewed or refinanced and (ii) customary fees and expenses incurred in connection with such extension, renewal or refinancing);

(g) leases or subleases of real property granted in the ordinary course of Borrower’s or any of its Subsidiaries’ business, and leases, subleases, non‑exclusive licenses or sublicenses of personal property (other than Intellectual Property) granted in the ordinary course of Borrower’s or such Subsidiary’s business, if the leases, subleases, licenses and sublicenses granted by the Borrower or any Guarantor do not prohibit granting Collateral Agent or any Lender a security interest therein;

(h) banker’s liens, rights of setoff and Liens in favor of financial institutions incurred in the ordinary course of business arising in connection with Borrower’s or its Subsidiaries’ deposit accounts or securities accounts held at such institutions solely to secure payment of fees, costs, expenses and similar items and provided such accounts are maintained in compliance with Section 6.6(a) hereof;

(i) Liens arising from judgments, decrees or attachments in circumstances not constituting an Event of Default under Section 8.4 or 8.7;

(j) Permitted Licenses;

(k) cash collateral securing Indebtedness permitted by clause (c) of the definition of “Permitted Indebtedness”; provided that the aggregate amount of any such cash collateral provided to secure any letter of credit shall not exceed 105% of the face amount of such letter of credit;

(l) Liens arising from precautionary uniform commercial code financing statements filed under any lease permitted by this Agreement;

(m) Liens securing Indebtedness incurred under clause (l) of the definition of “Permitted Indebtedness” in an aggregate amount not to exceed Seven Hundred Fifty Thousand Dollars ($750,000.00) at any time;

(n) Liens securing the Obligations; and

(o) other Liens on assets (which shall not be “all assets” or “substantially all assets” of the Borrower or any Guarantor) securing Indebtedness or other obligations in an aggregate principal amount at any time outstanding not to exceed Seventy Five Thousand Dollars ($75,000.00).

“Person” is any individual, sole proprietorship, partnership, limited liability company, joint venture, company, trust, unincorporated organization, association, corporation, institution, public benefit corporation, firm, joint stock company, estate, entity or government agency.

“PIK Interest” means interest payable in-kind by adding an amount equal to the applicable portion of the Applicable Rate of the outstanding principal amount to the then outstanding principal balance of the applicable Term Loans on a monthly basis on each Payment Date so as to increase the outstanding principal balance of such Term Loans.

“Pledge Agreement” means the Pledge Agreement dated as of the Effective Date between each Loan Party and Collateral Agent, as the same may from time to time be amended, restated, modified or otherwise supplemented.

“Prepayment Premium” is, with respect to any Term A Loan or Term B Loan subject to prepayment (including, without limitation, as a result of any refinancing, substitution or replacement) prior to the Maturity Date, whether by mandatory or voluntary prepayment, acceleration or otherwise (including, but not limited to, upon the occurrence of a bankruptcy or insolvency event (including the acceleration of claims by operation of law)), an additional fee payable to the Lenders in amount equal to:

(i) for such a prepayment made during the period commencing on the Effective Date and ending on the day immediately preceding the first anniversary of the Effective Date, three percent (3.00%) of the principal amount of such Term A Loan or Term B Loan prepaid;

(ii) for such a prepayment made during the period commencing on the first anniversary of the Effective Date and ending on the date immediately preceding the second anniversary of the Effective Date, two percent (2.00%) of the principal amount of such Term A Loan or Term B Loan prepaid; and

(iii) for such a prepayment made during the period commencing on the second anniversary of the Effective Date and ending on the day immediately preceding the Maturity Date, one percent (1.00%) of the principal amount of the Term ~~Loans~~A Loan or Term B Loan prepaid.

Notwithstanding the foregoing, the Prepayment Premium shall be zero percent (0.00%) of the principal amount of the Term Loan prepaid in the event that (i) any such prepayment of the Term Loans (a) results from SLR or any Affiliate of SLR (in their sole and absolute discretion) refinancing the Term Loans or (b) is made, at Collateral Agent’s option, in accordance with Section 6.5 or (ii) the occurrence of the Merger and related transactions on the Merger Amendment No. 8 Effective Date.

“Pricing Option 1” means, pursuant to the applicable equity milestone set forth in the first row of the table below (labeled “Equity Milestone”), an all-in interest rate set forth in the corresponding cell in the second row of the table below (labeled “All-In Margin”), of which, at Borrower’s election and subject to Section 2.3, the amount set forth in the corresponding cell in the third row of the table below (labeled “PIK Availability”) shall be PIK Interest.

~~Equity Milestone~~

~~After the~~

~~Amendment No. 4~~

~~Effective Date and~~

~~prior to the~~

~~completion of the~~

~~Minimum Net~~

~~Equity Proceeds~~

~~Milestone~~

~~After the~~

~~Amendment No. 4~~

~~Effective Date and~~

~~completion of the~~

~~Minimum Net~~

~~Equity Proceeds~~

~~Milestone, but prior~~

~~to the completion of~~

~~the Minimum Net~~

~~Equity Proceeds~~

~~Milestone 2~~

~~After the~~

~~Amendment No. 4~~

~~Effective Date and~~

~~completion of the~~

~~Minimum Net~~

~~Equity Proceeds~~

~~Milestone 2~~

~~All-In Margin~~

~~8.30%~~

~~PIK Availability~~

~~0.00%~~

“Pricing Option 2” means, pursuant to the applicable equity milestone set forth in the first row of the table below (labeled “Equity Milestone”), an all-in interest rate set forth in the corresponding cell in the second row of the table below (labeled “All-In Margin”), of which, at Borrower’s election and subject to Section 2.3, the amount set forth in the corresponding cell in the third row of the table below (labeled “PIK Availability”) shall be PIK Interest.

~~Equity Milestone~~

~~After the~~

~~Amendment No. 4~~

~~Effective Date and~~

~~prior to the~~

~~completion of the~~

~~Minimum Net~~

~~Equity Proceeds~~

~~Milestone~~

~~After the~~

~~Amendment No. 4~~

~~Effective Date and~~

~~completion of the~~

~~Minimum Net~~

~~Equity Proceeds~~

~~Milestone, but prior~~

~~to the completion of~~

~~the Minimum Net~~

~~Equity Proceeds~~

~~Milestone 2~~

~~After the~~

~~Amendment No. 4~~

~~Effective Date and~~

~~completion of the~~

~~Minimum Net~~

~~Equity Proceeds~~

~~Milestone 2~~

~~All-In Margin~~

~~8.30%~~

~~Pricing Option 2~~

~~unavailable; must~~

~~select Pricing~~

~~Option 1~~

~~PIK Availability~~

~~4.00%~~

~~Pricing Option 2~~

~~unavailable; must~~

~~select Pricing~~

~~Option 1~~

“Pricing Option 3” means, pursuant to the applicable equity milestone set forth in the first row of the table below (labeled “Equity Milestone”), an all-in interest rate set forth in the corresponding cell in the second row of the table below (labeled “All-In Margin”), of which, at Borrower’s election and subject to Section 2.3, the amount set forth in the corresponding cell in the third row of the table below (labeled “PIK Availability”) shall be PIK Interest.

~~Equity Milestone~~

~~After the~~

~~Amendment No. 4~~

~~Effective Date and~~

~~prior to the~~

~~completion of the~~

~~Minimum Net Equity~~

~~Proceeds Milestone~~

~~After the~~

~~Amendment No. 4~~

~~Effective Date and~~

~~completion of the~~

~~Minimum Net~~

~~Equity Proceeds~~

~~Milestone, but prior~~

~~to the completion of~~

~~the Minimum Net~~

~~Equity Proceeds~~

~~Milestone 2~~

~~After the~~

~~Amendment No. 4~~

~~Effective Date and~~

~~completion of the~~

~~Minimum Net~~

~~Equity Proceeds~~

~~Milestone 2~~

~~All-In Margin~~

~~9.30%~~

~~Pricing Option 3~~

~~unavailable; must~~

~~select Pricing~~

~~Option 1 or Pricing~~

~~Option 2~~

~~Pricing Option 2~~

~~and Pricing Option~~

~~3 unavailable; must~~

~~select Pricing~~

~~Option 1~~

~~PIK Availability~~

~~9.00%~~

~~Pricing Option 3~~

~~unavailable; must~~

~~select Pricing~~

~~Option 1 or Pricing~~

~~Option 2~~

~~Pricing Option 2~~

~~and Pricing Option~~

~~3 unavailable; must~~

~~select Pricing~~

~~Option 1~~

“Projections” are the projections delivered and accepted by Collateral Agent and the Lenders on or prior to the Effective Date.

“Property” means any interest in any kind of property or asset, whether real, personal or mixed, and whether tangible or intangible.

“Pro Rata Share” is, as of any date of determination, with respect to each Lender, a percentage (expressed as a decimal, rounded to the ninth decimal place) determined by dividing the outstanding principal amount of Term Loans held by such Lender by the aggregate outstanding principal amount of all Term Loans.

“Qualified Cash” means, as of any date of determination, the amount of unrestricted cash and Cash Equivalents of Borrower and its Subsidiaries held in accounts subject to a Control Agreement in favor of Collateral Agent.

“Qualified Cash A/P Amount” means the amount of the Loan Parties’ accounts payable that have not been paid within ninety (90) days from the invoice date of the relevant account payable (other than accounts that are subject to good faith disputes as permitted herein and for which Borrower maintains adequate reserves in accordance with GAAP).

“Registered Organization” is any “registered organization” as defined in the Code with such additions to such term as may hereafter be made under the Code.

“Registration” means any registration, authorization, approval, license, permit, clearance, certificate, and exemption required by the FDA or state pharmacy licensing authorities (including, without limitation, new drug applications, abbreviated new drug applications, biologics license applications, investigational new drug applications, over-the-counter drug monograph, device pre-market approval applications, device pre-market notifications, investigational device exemptions, product recertifications, manufacturing approvals, registrations and authorizations, CE Marks, pricing and reimbursement approvals, labeling approvals or their foreign equivalent and controlled substance registrations).

“Regulatory Action” means an administrative, regulatory, or judicial enforcement action, proceeding, investigation, FDA Form 483 notice of inspectional observation, warning letter, untitled letter, mandatory recall, seizure, Section 305 notice or other similar written communication, injunction or consent decree, issued by the FDA or a federal or state court.

“Related Persons” means, with respect to any Person, each Affiliate of such Person and each director, officer, employee, agent, trustee, representative, attorney, accountant and each insurance, environmental, legal, financial and other advisor and other consultants and agents of or to such Person or any of its Affiliates.

“Relevant Governmental Body” means the Federal Reserve Board, the Federal Reserve Bank of New York, and/or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York, or any successor thereto.

“Required Lenders” means, as of the date of determination, Lenders holding Term Loans and Term Loan Commitments representing more than 50% of the sum of the principal amount of the Term Loans and Term Loan Commitments outstanding as of such date, provided that as set forth in Section 10(c) of Exhibit B, no Non-Funding Lender shall be included in the determination of “Required Lenders”.

“Requirement of Law” is as to any Person, the organizational or governing documents of such Person, and any law (statutory or common), treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.

“Responsible Officer” is any of the President, Chief Executive Officer, or Chief Financial Officer of any Loan Party acting alone.

“Rollover Agreements” has the meaning ascribed to such term in the Merger Agreement; provided, for the avoidance of doubt that the term “Rollover Agreements” includes the SLR Rollover Agreement.

“Second Draw Period” means the period commencing on March 26, 2024 and ending the earlier of (i) the Term B Loan Maturity Date and (ii) the occurrence of any Event of Default.

“Secured Parties” means the Collateral Agent and the Lenders.

“Securities Account” is any “securities account” as defined in the Code with such additions to such term as may hereafter be made under the Code.

“SLR Financing Agreements” has the meaning ascribed to such term in the Merger Agreement.

“SLR Rollover Agreement” has the meaning ascribed to such term in the Merger Agreement.

“SOFR” means the daily Secured Overnight Financing Rate provided by the Federal Reserve Bank of New York as the administrator of the benchmark (or a successor administrator) on the Federal Reserve Bank of New York’s Website.

“SOFR Adjustment” means, 0.10%.

“Solvent” means, with respect to any Person, that, on a consolidated basis, (a) the fair salable value of such Person’s and its Subsidiaries’ assets (including goodwill minus disposition costs) exceeds the fair value of such Person’s and its Subsidiaries’ liabilities, (b) such Person and its Subsidiaries are not left with unreasonably small capital after giving effect to the transactions contemplated by this Agreement and the other Loan Documents, and (c) such Person and its Subsidiaries are able to pay their debts (including trade debts) as they mature in the ordinary course.

“Subsidiary” is, with respect to any Person, any Person of which more than fifty percent (50%) of the voting stock or other equity interests (in the case of Persons other than corporations) is owned or controlled, directly or indirectly, by such Person or through one or more intermediaries. Unless the context requires otherwise, each reference to a Subsidiary herein shall be a reference to a direct or indirect Subsidiary of the Borrower.

“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

“Term B Loan Maturity Date” means ~~July 26, 2024.~~the earlier of (a) the Merger Amendment No. 8 Effective Date, and (b) December 31, 2024; provided, that solely in the event that either the Borrower or Parent has exercised its right to extend the Outside Date (as defined in the Merger Agreement) by sixty (60) days pursuant to clause (i) of the first proviso of Section 7.2(b) of the Merger Agreement and in accordance with the other provisions of the Merger Agreement (the Outside Date so extended by such sixty (60)-day period, the “Extended Outside Date”), then the Term B Loan Maturity Date shall be automatically extended to the Extended Outside Date; provided, further, that (i) the Term B Loan Maturity Date may be extended only once pursuant to the foregoing provisions of this definition (and may not be so extended more than once), and (ii) if the Merger Agreement is validly terminated pursuant to Article VII following such extension of the Term B Loan Maturity Date, then the Term B Loan Maturity Date shall be the date of such valid termination of the Merger Agreement.

“Term Loan Commitment” is, for any Lender, the obligation of such Lender to make a Term Loan, up to the principal amount shown on Schedule 1.1.

“Term Loan Commitments” means the aggregate amount of such commitments of all Lenders.

“Termination Date” is the date on which (i) all of the Term Loan Commitments are terminated ~~and~~, (ii) all Obligations (other than inchoate indemnity obligations, obligations arising under the Warrants and any other obligations which, by their terms, are to survive the termination of this Agreement) have been paid in full in cash and (iii) the Contemplated Transactions and the transactions contemplated by the SLR Financing Agreements have been consummated.

“Trademarks” means any trademark and servicemark rights, whether registered or not, applications to register and registrations of the same and like protections, and the entire goodwill of the business of Borrower and each of its Subsidiaries connected with and symbolized by such trademarks.

“Transaction Documents” has the meaning ascribed to such term in the Merger Agreement.

“Unqualified Opinion” means an opinion on financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion which opinion shall not include any qualifications or any going concern limitations (except for such qualifications relating to the impending maturity of the Term Loans).

“Warrants” are (a) those certain Warrants to Purchase Stock dated on or after the Effective Date issued by Borrower in favor of each Lender (or any Affiliate of such Lender), as amended on the Amendment No. 2 Effective Date and as further amended on the Amendment No. 3 Effective Date, and (b) any other warrants issued by Borrower in favor of any Lender, in each case as amended, amended and restated, supplemented or otherwise modified from time to time.

“Warrant Amendment Agreement” means the Omnibus Warrant Amendment Agreement, dated as of June 17, 2024, by and among Borrower and each of the holders of the Warrants, as the same may from time to time be amended, restated, modified or otherwise supplemented.

“Wholly-Owned Subsidiary” of any Person means a Subsidiary of such Person, all of the equity interests of which (other than directors’ qualifying shares or nominee or other similar shares required pursuant to applicable law) are owned by such Person or any other Wholly-Owned Subsidiary of such Person.

2. LOANS AND TERMS OF PAYMENT

2.1 Promise to Pay. Borrower hereby unconditionally promises to pay each Lender, the outstanding principal amount of all Term Loans advanced to Borrower by such Lender and accrued and unpaid interest thereon and any other amounts due hereunder as and when due in accordance with this Agreement.

2.2 Term Loans.

(a) Availability.

(i) Subject to the satisfaction (or waiver in accordance with the terms hereof) of the conditions precedent contained in Sections 3.1 and 3.2, the Lenders agree, severally and not jointly, to make term loans to Borrower on the Effective Date in an aggregate principal amount of One Hundred Million Dollars ($100,000,000.00) according to each Lender’s Term Loan Commitment for the Term A Loan as set forth on Schedule 1.1 hereto (such term loans referred to herein singly as a “Term A Loan”, and collectively as the “Term A Loans”). After repayment, no Term A Loan may be re borrowed.

(ii) Subject to the satisfaction (or waiver in accordance with the terms hereof) of the conditions precedent contained in Sections 3.1 and 3.2, and conditioned on approval by the Lenders’ investment committee in its sole and unfettered discretion, the Lenders agree, severally and not jointly, to make term loans to Borrower, during the Second Draw Period, in an aggregate principal amount of ~~Four~~Nine Million Dollars ($~~4,000,000.00~~9,000,000.00) according to each Lender’s Term Loan Commitment for the Term B Loan as set forth on Schedule 1.1 hereto (such term loans referred to herein singly as a “Term B Loan”, and collectively as the “Term B Loans”; each Term A Loan and Term B Loan is hereinafter referred to singly as a “Term Loan” and the Term A Loans and the Term B Loans are hereinafter referred to collectively as the “Term Loans”). The initial Four Million Dollars ($4,000,000) of Term B Loans shall be available in an initial draw amount of Two Million Dollars ($2,000,000) and two One Million Dollar ($1,000,000) subsequent advances, and the subsequent Five Million Dollars ($5,000,000) of Term B Loans shall be available in sequential draws of Two Million Dollars ($2,000,000), One Million Five Hundred Thousand Dollars ($1,500,000) One Million Dollars ($1,000,000) and Five Hundred Thousand Dollars ($500,000) in each case, subject to approval by the Lenders’ investment committee in its sole and unfettered discretion and in no event shall any Term B Loan be funded in less than 20 Business Days from any other Term B Loan. After repayment, no Term B Loan may be re borrowed. On the Amendment No. 8 Execution Date there were $4,000,000 of Term B Loans outstanding and Lenders had $5,000,000 of Term Loan Commitments for the Term B Loan outstanding.

(b) Repayment. Borrower shall make monthly payments of interest only commencing on the first (1st) Payment Date following the Funding Date of each Term Loan, and continuing on each successive Payment Date thereafter through and including the Payment Date immediately preceding the Amortization Date (or, if there is no Amortization Date pursuant to the definition thereof, the Maturity Date), with such interest payments being made to the Collateral Agent for the benefit of the Lenders (or, if there are only one (1) or two (2) Lenders, Borrower shall make such payments directly to such Lenders) in accordance with their respective Pro Rata Shares, as calculated by Collateral Agent (which calculations shall be deemed correct absent manifest error) based upon the effective rate of interest applicable to the Term Loan, as determined in Section 2.3(a). Commencing on the Amortization Date (if any), and continuing on each successive Payment Date thereafter, Borrower shall (i) make monthly payments of interest, to Collateral Agent for the benefit of the Lenders (or, if there are only one (1) or two (2) Lenders, Borrower shall make payment directly to such Lenders) in accordance with their respective Pro Rata Shares, as calculated by Collateral Agent (which calculations shall be deemed correct absent manifest error) based upon the effective rate of interest applicable to the Term Loan, as determined in Section 2.3(a) and (ii) make consecutive equal monthly payments of principal to Collateral Agent for the benefit of the Lenders (or, if there are only one (1) or two (2) Lenders, Borrower shall make payment directly to such Lenders) in accordance with their respective Pro Rata Shares, as calculated by Collateral Agent (which calculations shall be deemed correct absent manifest error) based upon: (A) the respective principal amounts of such Lender’s Term Loans outstanding as of the Amortization Date, and (B) a repayment schedule equal to the remaining months from the Amortization Date through the Maturity Date. All unpaid principal and accrued and unpaid interest with respect to each such Term A Loan is due and payable in full on the Maturity Date. All unpaid principal and accrued unpaid interest with respect to Term B Loans is due and payable in full on the Term B Loan Maturity Date. The Term Loans may only be prepaid in accordance with Sections 2.2(c), 2.2(d) or 6.5..

(c) Mandatory Prepayments. If the Term Loans are accelerated in accordance with Section 9.1(a) prior to the Maturity Date, Borrower shall immediately pay to Lenders, payable to each Lender in accordance with its respective Pro Rata Share, an amount equal to the sum of: (i) all outstanding principal (including any PIK Interest) of the Term Loans plus accrued and unpaid interest thereon, (ii) any fees due and payable under the Fee Letter by reason of such payment, (iii) the Prepayment Premium plus (iv) all other Obligations that are due and payable, including any Lenders’ Expenses and any interest (if any) at the Default Rate to the extent imposed in accordance with Section 2.3(b) below. Notwithstanding (but without duplication of) the foregoing, on the Maturity Date, if any fees that become due and payable under the Fee Letter by reason of such acceleration have not previously been paid in full in connection with such acceleration, Borrower shall pay such fees to Collateral Agent for the benefit of the Lenders (or, if there is only one (1) or two (2) Lenders, Borrower shall make such payment directly to such Lenders), to the extent imposed in accordance with the Fee Letter. For the avoidance of doubt, the Prepayment Premium shall also be payable in the event the Term Loans are satisfied or released by a foreclosure (whether by power of judicial proceeding), deed in lieu of foreclosure or by any other means prior to the Maturity Date. THE BORROWER AND GUARANTOR EXPRESSLY WAIVES (TO THE FULLEST EXTENT IT MAY LAWFULLY DO SO) THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING PREPAYMENT PREMIUM IN CONNECTION WITH ANY SUCH ACCELERATION.

(d) Permitted Prepayment of Term Loans and Termination of Term Loan Commitments. Borrower shall have the option to (a) prepay all, but not less than all of the outstanding principal balance of the Term Loans advanced by the Lenders under this Agreement and (b) terminate all, but not less than all of the outstanding Term Loan Commitments, provided Borrower (i) provides written notice to Collateral Agent of its election to prepay the Term Loans and terminate the Term Loan Commitments at least five (5) Business Days prior to such prepayment and termination, and (ii) pays to the Lenders on the date of such prepayment, payable to Collateral Agent for the benefit of the Lenders (or, if there are only one (1) or two (2) Lenders, Borrower shall make payment directly to such Lenders) in accordance with their respective Pro Rata Shares, an amount equal to the sum of (A) the outstanding principal (including any PIK Interest) of the Term Loans plus accrued and unpaid interest thereon through (but not including) the prepayment date, (B) any fees payable under Fee Letter by reason of such prepayment, (C) the Prepayment Premium, plus (D) all other Obligations that are due and payable on such prepayment date, including any Lenders’ Expenses and interest (if any) at the Default Rate to the extent imposed in accordance with Section 2.3(b) below; provided that, if such notice of prepayment and termination indicates that any such prepayment is to be funded with the proceeds of a refinancing and/or any such termination is conditioned on the closing of such refinancing, such notice may be revoked or delayed if the financing is not consummated on or prior to the effective date of such prepayment and termination.

2.3 Payment of Interest on the Term Loans.

(a) Interest Rate. Subject to Section 2.3(b), the principal amount outstanding (including any applicable PIK Interest) under the Term Loans shall accrue interest at a floating per annum rate equal to the Applicable Rate in effect from time to time, which aggregate interest rate shall be determined by Collateral Agent on the third Business Day prior to the Funding Date of the applicable Term Loan and on the date occurring on the first Business Day of each month commencing thereafter (it being understood and agreed that the Applicable Rate as so determined on the Effective Date or on the first Business Day of each month commencing thereafter shall be effective from and after such date of determination until the first Business Day of the month commencing immediately after such determination), which interest shall be payable monthly in arrears in accordance with Sections 2.2(b) and 2.3(e). In order to elect to pay PIK Interest on Term A Loans, Borrower must deliver to the Collateral Agent on or before the twentieth (20th) day of the month prior to the applicable Payment Date, a notice executed by an authorized officer of Borrower indicating its choice to pay such interest in-kind. In the case of notices of election in accordance with the preceding sentence made in March 2024, the notice will be due no later than two business days after execution of this 7th Amendment by all parties. All PIK Interest shall be payable when the principal amount of the Term A Loans are payable in accordance with Sections 2.2(b) and 2.2(c) and on which principal amount interest shall be owed pursuant to this Section 2.3. Such interest shall accrue on the outstanding principal amount of each Term A Loan, during the period commencing on, and including, the Funding Date of such Term A Loan, and ending on but not including, the day on which such Term A Loan is paid in full (or any payment is made hereunder).

(b) Default Rate. Unless otherwise agreed by the Required Lenders, immediately upon the occurrence and during the continuance of an Event of Default, all overdue Obligations shall accrue interest at a fixed per annum rate equal to the rate that is otherwise applicable thereto plus five percentage points (5.00%) (the “Default Rate”). Payment or acceptance of the increased interest rate provided in this Section 2.3(b) is not a permitted alternative to timely payment and shall not constitute a waiver of any Event of Default or otherwise prejudice or limit any rights or remedies of Collateral Agent.

(c) 360‑Day Year. Interest shall be computed on the basis of a three hundred sixty (360) day year for the actual number of days elapsed.

(d) PIK Interest Warrants. On each Payment Date, Borrower shall issue to each Lender duly executed Warrants in accordance with and to the extent required by the terms of the Fee Letter.

(e) Payments. Except as otherwise expressly provided herein, all payments by any Loan Party under the Loan Documents shall be made to Collateral Agent for the benefit of the Lenders (or, if there are only one (1) or two (2) Lenders, Borrower shall make payment directly to such Lenders), at such Person’s office in immediately available funds on the date specified herein. Unless otherwise provided, interest is payable monthly on each Payment Date. Payments of principal and/or interest received after 2:00 p.m. New York time are considered received at the opening of business on the next Business Day. When a payment is due on a day that is not a Business Day, the payment is due the next Business Day and additional fees or interest, as applicable, shall continue to accrue until paid. All payments to be made by any Loan Party hereunder or under any other Loan Document, including payments of principal and interest, and all fees, expenses, indemnities and reimbursements, shall be made without set‑off, recoupment or counterclaim, in lawful money of the United States and in immediately available funds. Collateral Agent may at its discretion and with prior notice of at least three (3) Business Days, initiate debit entries to the Borrower’s account as authorized on the ACH Letter (i) on each payment date of all Obligations then due and owing and (ii) at any time any payment due and owing with respect to Lenders’ Expenses.

2.4 Fees. The Borrower shall pay to Collateral Agent and/or the applicable Lenders (as applicable) the following fees, which shall be deemed fully earned and non-refundable upon payment:

(a) Fee Letter. When due and payable under the terms of the Fee Letter, to Collateral Agent and each applicable Lender, as applicable, the fees set forth in the Fee Letter.

(b) Prepayment Premium. Any applicable Prepayment Premium, if and when due hereunder, to be shared between the Lenders in accordance with their respective Pro Rata Shares. Borrower expressly agrees (to the fullest extent that each may lawfully do so) that: (i) the Prepayment Premium is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel; (ii) the Prepayment Premium shall be payable notwithstanding the then prevailing market rates at the time payment is made; (iii) there has been a course of conduct between Collateral Agent, Lenders and Borrower giving specific consideration in this transaction for such agreement to pay the Prepayment Premium and (iv) Borrower shall be estopped hereafter from claiming differently than as agreed to in this paragraph. Borrower expressly acknowledges that its agreement to pay any applicable Prepayment Premium to Lenders if and when due as herein described is a material inducement to Lenders to provide the Term Loan Commitments and make the Term Loans.

(c) Lenders’ Expenses. All Lenders’ Expenses incurred through the Effective Date to the extent invoiced prior to the Effective Date and thereafter within five days following receipt of the corresponding invoice(s).

2.5 Taxes; Increased Costs. Each Loan Party, Collateral Agent and the Lenders each hereby agree to the terms and conditions set forth on Exhibit I attached hereto.

2.6 Secured Promissory Notes. If requested by a Lender, the Term Loans shall be evidenced by a Secured Promissory Note or Notes in the form attached as Exhibit G hereto (each a “Secured Promissory Note”), and shall be repayable as set forth in this Agreement. Borrower irrevocably authorizes each Lender to make or cause to be made, on or about the Funding Date of any Term Loan or at the time of receipt of any payment of principal on such Lender’s Secured Promissory Note, an appropriate notation on such Lender’s Secured Promissory Note record reflecting the making of such Term Loan or (as the case may be) the receipt of such payment. The outstanding amount of each Term Loan set forth on such Lender’s Secured Promissory Note record shall be, absent manifest error, prima facie evidence of the principal amount thereof owing and unpaid to such Lender, but the failure to record, or any error in so recording, any such amount on such Lender’s Secured Promissory Note record shall not limit or otherwise affect the obligations of Borrower under any Secured Promissory Note or any other Loan Document to make payments of principal of or interest on any Secured Promissory Note when due. Upon receipt of an affidavit of an officer of a Lender as to the loss, theft, destruction, or mutilation of its Secured Promissory Note, Borrower shall issue, in lieu thereof, a replacement Secured Promissory Note in the same principal amount thereof and of like tenor.

3. CONDITIONS OF LOANS

3.1 Conditions Precedent to Initial Term Loan. Each Lender’s obligation to make a Term A Loan on the Effective Date is subject to the condition precedent that Collateral Agent and each Lender shall have received, in form and substance reasonably satisfactory to Collateral Agent and each Lender the following:

(a) copies of the Loan Documents, each duly executed by Borrower and each Guarantor, as applicable;

(b) duly executed Warrants (substantially consistent with the form of Warrant attached hereto as Exhibit H), each dated as of the Effective Date, and exercisable for a total number of shares of Common Stock (as defined in the Warrants) in the aggregate equal to the quotient derived by dividing (i) 1.5% times the aggregate principal amount of the Term A Loans funded by the Lenders by (ii) the applicable Warrant Price (as defined in such Warrants), rounded to the nearest whole share;

(c) copies of duly executed Control Agreements with respect to any Collateral Accounts maintained by Borrower or any Guarantor;

(d) a completed Perfection Certificate for Borrower and each Guarantor;

(e) the Operating Documents and good standing certificates of Borrower and the Guarantors certified by the Secretary of State (or equivalent agency) of Borrower’s and such Guarantors’ jurisdiction of organization or formation and each jurisdiction in which Borrower is qualified to conduct business (except where the failure to be so qualified would not result in a Material Adverse Change), each, as of a date no earlier than thirty (30) days prior to the Effective Date;

(f) a certificate of Borrower and each Guarantor in substantially the form of Exhibit E hereto executed by the Secretary (or other authorized officer) of Borrower and each Guarantor with appropriate insertions and attachments, including with respect to (i) the Operating Documents of Borrower (which Certificate of Incorporation (or equivalent Operating Document) of Borrower and each Guarantor shall be certified by the Secretary of State (or equivalent agency) of such entity’s jurisdiction of organization) and (ii) the resolutions adopted by Borrower’s and each Guarantor’s board of directors or other governing body for the purpose of approving the transactions contemplated by the Loan Documents;

(g) certified copies, dated as of date no earlier than thirty (30) days prior to the Effective Date, of financing statement searches, as Collateral Agent shall request, accompanied by written evidence (including any UCC termination statements) that the Liens indicated in any such financing statements either constitute Permitted Liens or have been or, in connection with the initial Term Loan, will be terminated or released;

(h) a customary legal opinion of counsel to Borrower and each Guarantor dated the Effective Date;

(i) evidence satisfactory to Collateral Agent and the Lenders that the insurance policies required by Section 6.5 hereof are in full force and effect, together with appropriate evidence showing loss payable and/or additional insured clauses or endorsements in favor of Collateral Agent, for the ratable benefit of the Secured Parties;

(j) a customary payoff letter of Canadian Imperial Bank of Commerce in respect of the Existing Credit Facilities; and

(k) concurrently with the funding of the Term A Loan, payment of (i) the fees payable on the Effective Date under the terms of the Fee Letter and (ii) Lender Expenses to the extent an invoice thereof has been provided to the Borrower on or prior to the Business Day immediately preceding the Effective Date.

3.2 Conditions Precedent to all Term Loans. The obligation of each Lender to extend each Term Loan, including the initial Term Loan, is subject to the following conditions precedent:

(a) receipt by Collateral Agent of an executed Loan Payment Request Form in the form of Exhibit C attached hereto;

(b) the representations and warranties in Section 5 hereof shall be true and correct in all material respects on the Funding Date of each Term Loan; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true and correct in all material respects as of such date;

(d) [reserved];

(e) no Event of Default or an event that with the passage of time could result in an Event of Default, shall exist; and

(f) payment of the fees and Lenders’ Expenses then due as specified in Section 2.4 hereof (including payment of the fees then due and payable under the terms of the Fee Letter).

3.3 Covenant to Deliver. Each Loan Party agrees to deliver to Collateral Agent and the Lenders each item required to be delivered to Collateral Agent under this Agreement as a condition precedent to any Term Loan. Each Loan Party expressly agrees that a Term Loan made prior to the receipt by Collateral Agent or any Lender of any such item shall not constitute a waiver by Collateral Agent or any Lender of any Loan Party’s obligation to deliver such item, and any such Term Loan in the absence of a required item shall be made in each Lender’s sole discretion.

3.4 Procedures for Borrowing After the Effective Date. Subject to the prior or concurrent satisfaction of all other applicable conditions to the making of a Term Loan after the Effective Date set forth in Sections 2.2(a)(ii)(A), 3.2 and 3.3, to obtain a Term Loan (other than the Term Loan funded on the Effective Date), Borrower shall notify the Lenders (which notice shall be irrevocable) by electronic mail, facsimile, or telephone by 12:00 noon New York time three (3) Business Days prior to the date the applicable Term Loan is to be made. Together with any such electronic, facsimile or telephonic notification, Borrower shall deliver to Collateral Agent by electronic mail or facsimile a completed Loan Payment Request Form executed by a Responsible Officer or his or her designee. The Collateral Agent may rely on any telephone notice given by a person whom Collateral Agent reasonably believes is a Responsible Officer or designee.

(a) Post-Closing Obligations. Notwithstanding any provision herein or in any other Loan Document to the contrary, to the extent not actually delivered on or prior to the Effective Date, each applicable Loan Party shall:

(b) no later than March 20, 2022 (or such later date as may be agreed by the Collateral Agent in its sole discretion), deliver insurance endorsements required pursuant to Section 6.5;

(c) no later than April 4, 2022 (or such later date as may be agreed by the Collateral Agent in its sole discretion), deliver landlord waivers with respect to the Loan Parties’ locations at (i) 100 Domain Drive, Exeter, NH 08833, (ii) Newroads Distribution 251 Calef Highway, Lee NH 03861 and (iii) 18 Independence Drive, Devens, MA 01434;

(d) no later than April 4, 2022 (or such later date as may be agreed by the Collateral Agent in its sole discretion), enter into Control Agreements with respect to Collateral Accounts of he and Vapotherm Services maintained at Bank of America, N.A and the Collateral Accounts of the Borrower maintained at American Express Bank; provided that prior to the execution of Control Agreements with respect to such Collateral Accounts the amounts in such accounts shall not exceed One Million Dollars ($1,000,000.00) in the aggregate at any one time;

(d) no later than March 20, 2022 (or such later date as may be agreed by the Collateral Agent in its sole discretion) cause the trademarks owned by Pulmonary Care Innovations, PLLC to be transferred to a Loan Party; and

(e) no later than February 28, 2022 (or such later date as may be agreed by the Collateral Agent in its sole discretion) cause the original stock certificate and stock power of Solus Medical Limited to be delivered to the Collateral Agent.

4. CREATION OF SECURITY INTEREST

4.1 Grant of Security Interest. Each Loan Party hereby grants Collateral Agent, for the ratable benefit of the Secured Parties, to secure the payment and performance when due in full of all of the Obligations, a continuing first priority (subject, in respect of priority, to Permitted Liens that, under applicable law, have priority over Collateral Agent’s Lien) security interest in, and pledges to Collateral Agent, for the ratable benefit of the Secured Parties, such Loan Party’s right, title and interest in and to the Collateral of such Loan Party, wherever located, whether now owned or hereafter acquired or arising, and all proceeds and products and supporting obligations (as defined in the Code) in respect thereof. If a Loan Party shall acquire any commercial tort claim (as defined in the Code) for claims in excess of One Hundred Fifty Thousand Dollars ($150,000.00), such Loan Party shall grant to Collateral Agent, for the ratable benefit of the Secured Parties, a first priority security interest (subject, in respect of priority, to Permitted Liens that, under applicable law, have priority over Collateral Agent’s Lien) therein and in the proceeds and products and supporting obligations (as defined in the Code) thereof, all upon the terms of this Agreement, with such writing to be in form and substance reasonably satisfactory to Collateral Agent.

On the Termination Date, Collateral Agent shall, at the sole cost and expense of Borrower, release its Liens in the Collateral. In addition, in the event that any Collateral is disposed of in accordance with Section 7.1 (other than a disposition to the Borrower or a Guarantor), Collateral Agent shall, at the time of such disposition and at the sole cost and expense of Borrower, release its Liens in such Collateral.

4.2 Authorization to File Financing Statements. Borrower and each Guarantor hereby authorize Collateral Agent to file financing statements or take any other action required to perfect Collateral Agent’s security interests in the Collateral (held for the ratable benefit of the Secured Parties), without notice to any Loan Party, with all appropriate jurisdictions to perfect or protect Collateral Agent’s interest or rights under the Loan Documents. Such financing statements may include an indication that the financing statement covers “all assets or all personal property” of such Loan Party in accordance with Section 9-504 of the Code.

5. REPRESENTATIONS AND WARRANTIES

Each Loan Party represents and warrants to Collateral Agent and the Lenders as follows:

5.1 Due Organization, Authorization: Power and Authority. Borrower and each of its Subsidiaries is duly existing and in good standing in its jurisdictions of organization or formation and Borrower and each of its Subsidiaries is qualified and licensed to do business and is in good standing in any jurisdiction in which the conduct of its businesses or its ownership of property requires that it be so qualified, except where the failure to do so could not reasonably be expected to have a Material Adverse Change. In connection with the execution of this Agreement, Borrower and each Guarantor has delivered to Collateral Agent a completed perfection on the Effective Date (each a “Perfection Certificate” and collectively, the “Perfection Certificates”). Each Loan Party represents and warrants that, (a) as of the Effective Date, all the information set forth on the Perfection Certificates delivered on the Effective Date pertaining to Borrower and each Guarantor is accurate and complete other than any immaterial ministerial information and (b) as of the date any financial statements specified in Section 6.2(a)(i) are delivered to the Collateral Agent for the months of March, June, September and December, all the information set forth on the Perfection Certificates delivered on such date pertaining to Borrower and each Guarantor is accurate and complete other than any immaterial ministerial information.

~~xecuteution~~The execution, delivery and performance by Borrower and each of its Subsidiaries of the Loan Documents to which it is, or they are, a party have been duly authorized, and do not (i) conflict with any of Borrower’s or such Subsidiaries’ organizational documents, including its respective Operating Documents, (ii) contravene, conflict with, constitute a default under or violate any material Requirement of Law applicable thereto, (iii) contravene, conflict or violate any applicable order, writ, judgment, injunction, decree, determination or award of any Governmental Authority by which Borrower or such Subsidiary, or any of their property or assets may be bound or affected where such contravention, conflict or violation would materially and adversely effect the Borrower’s or such Subsidiaries obligations hereunder, (iv) require any action by, filing, registration, or qualification with, or Governmental Approval from, any Governmental Authority (except (a) for any action by, filing, registration, or qualification with, or Governmental Approval from, any Governmental Authority which have already been made or obtained and are in full force and effect or (b) any filings or recordings with respect to perfecting the Liens granted to the Collateral Agent under the Loan Documents), or (v) constitute an event of default under any Material Agreement by which Borrower, any of its Subsidiaries or any of their respective properties, is bound. Neither Borrower nor any of its Subsidiaries is in default under any agreement to which it is a party or by which it or any of its assets is bound in which such default could reasonably be expected to have a Material Adverse Change.

5.2 Collateral.

(a) Borrower and each Guarantor have good title to, have rights in, and the power to transfer each item of the Collateral upon which it purports to grant a Lien under the Loan Documents, free and clear of any and all Liens except Permitted Liens, and neither Borrower nor any Guarantor has any Collateral Account that would violate the terms and provisions of Section 6.6.

(b) The security interest granted herein is and shall at all times continue to be a first priority (subject, in respect of priority, to Permitted Liens that, under applicable law, have priority over Collateral Agent’s Lien) perfected security interest in the Collateral, except to the extent perfection thereof is expressly not required pursuant to the terms of the Loan Documents; provided that (subject to Permitted Liens) no other party shall have a perfected security interest in such Collateral.

(c) On the Effective Date, and except as disclosed on the Perfection Certificate (i) the Collateral is not in the possession of any third party bailee, and (ii) no such third party bailee possesses components of the Collateral in excess of Five Hundred Thousand Dollars ($500,000.00).

(d) All Inventory and Equipment is in all material respects of good and marketable quality, free from material defects.

(e) Borrower and each of its Subsidiaries is the sole owner of the Intellectual Property each respectively purports to own, free and clear of all Liens other than Permitted Liens.

(f) To the Knowledge of the Loan Parties, none of Borrower or any of its Subsidiaries has used any software or other materials that are subject to an open-source or similar license (including the General Public License, Lesser General Public License, Mozilla Public License, or Affero License) (collectively, “Open Source Licenses”) in a manner that would cause any software or other materials owned by any Loan Party or used in any Loan Party’s products to have to be (i) distributed to third parties at no charge or a minimal charge, (ii) licensed to third parties for the purpose of creating modifications or derivative works or (iii) subject to the terms of such Open Source License.

5.3 Litigation. Except as disclosed on the Perfection Certificate or pursuant to Section 6.2(a)(xviii), there are no actions, suits, investigations, or proceedings pending or, to the Knowledge of the Responsible Officers, threatened in writing by or against Borrower or any of its Subsidiaries involving more than Five Hundred Thousand Dollars ($500,000.00).

5.4 No Material Adverse Change; Financial Statements. All consolidated financial statements for Borrower and its consolidated Subsidiaries, delivered to Collateral Agent fairly present, in conformity with GAAP, and in all material respects the consolidated financial condition of Borrower and its consolidated Subsidiaries, and the consolidated results of operations of Borrower and its consolidated Subsidiaries. Since December 31, 2020, there has not been a Material Adverse Change.

5.5 Solvency. Borrower is Solvent. Borrower and each of its Subsidiaries, when taken as a whole, are Solvent.

5.6 Regulatory Compliance. Neither Borrower nor any of its Subsidiaries is an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower and each of its Subsidiaries has complied in all respects with the Federal Fair Labor Standards Act, except to the extent such non-compliance could not reasonably be expected to have a Material Adverse Change. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Neither Borrower nor any of its Subsidiaries has violated any laws, ordinances or rules, the violation of which could reasonably be expected to have a Material Adverse Change. Neither Borrower’s nor any of its Subsidiaries’ owned real properties or assets have been used by Borrower or such Subsidiary or, to any Loan Party’s Knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than in material compliance with applicable laws. Borrower and each of its Subsidiaries has obtained all material consents, approvals and authorizations of, made all material declarations or filings with, and given all material notices to, all Governmental Authorities that are necessary to continue their respective businesses as currently conducted.

None of Borrower, any of its Subsidiaries, or to the knowledge of any Responsible Officer of the Borrower, any of Borrower’s or its Subsidiaries’ controlled Affiliates or any of their respective agents acting or benefiting in any capacity in connection with the transactions contemplated by this Agreement is (i) in violation of any Anti‑Terrorism Law, (ii) engaging in or conspiring to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding or attempts to violate, any of the prohibitions set forth in any Anti‑Terrorism Law, or (iii) is a Blocked Person. None of Borrower, any of its Subsidiaries, or to the Knowledge of the Borrower, any of Borrower’s or its Subsidiaries’ controlled Affiliates or agents acting or benefiting in any capacity in connection with the transactions contemplated by this Agreement, (x) conducts any business or engages in making or receiving any contribution of funds, goods or services to or for the benefit of any Blocked Person, or (y) deals in, or otherwise engages in any transaction relating to, any property or interest in property blocked pursuant to Executive Order No. 13224, any similar executive order or other Anti‑Terrorism Law.

5.7 Investments. Neither Borrower nor any of its Subsidiaries owns any stock, shares, partnership interests or other equity securities except for Permitted Investments.

5.8 Tax Returns and Payments; Pension Contributions. Borrower and each of its Subsidiaries have timely filed all required Tax returns and reports, and Borrower and each of its Subsidiaries, have timely paid all foreign, federal and state, and all material local, Taxes owed by Borrower and such Subsidiaries in an amount greater than Two Hundred Thousand Dollars ($200,000.00), in all jurisdictions in which Borrower or any such Subsidiary is subject to Taxes, including the United States, unless such Taxes are being contested in accordance with the next sentence. Borrower and each of its Subsidiaries, may defer payment of any contested Taxes, provided that Borrower or such Subsidiary, (a) in good faith contests its obligation to pay the Taxes by appropriate proceedings promptly and diligently instituted and conducted; and (b) maintains adequate reserves or other appropriate provisions on its books in accordance with GAAP. Neither Borrower nor any of its Subsidiaries has knowledge of any claims or adjustments proposed for any of Borrower’s or such Subsidiaries’ prior Tax years which could result in additional Taxes becoming due and payable by Borrower or its Subsidiaries. Borrower and each of its Subsidiaries has paid all amounts necessary to fund all present pension, profit sharing and deferred compensation plans in accordance with their terms, and neither Borrower nor any of its Subsidiaries has, withdrawn from participation in, has permitted partial or complete termination of, or has permitted the occurrence of any other event with respect to, any such plan which could reasonably be expected to result in any material liability of Borrower or its Subsidiaries, including any liability to the Pension Benefit Guaranty Corporation or its successors or any other Governmental Authority.

5.9 Use of Proceeds. Borrower shall use the proceeds of the Term Loans to repay the Existing Credit Facilities, to finance working capital and for general corporate purposes, and not for personal, family, household or agricultural purposes.

5.10 Full Disclosure. No written representation, warranty or other statement of Borrower or any of its Subsidiaries in any certificate or written statement, when taken as a whole, given to Collateral Agent or any Lender, as of the date such representation, warranty, or other statement was made, taken together with all such written certificates and written statements given to Collateral Agent or any Lender, contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements contained in the certificates or statements not misleading (it being recognized that projections and forecasts provided by Borrower in good faith and based upon reasonable assumptions are not viewed as facts and that actual results during the period or periods covered by such projections and forecasts may differ from the projected or forecasted results).

6. AFFIRMATIVE COVENANTS

Until the Termination Date, Borrower shall, and shall cause each of its Subsidiaries to, do all of the following:

6.1 Government Compliance.

(a) Other than specifically permitted hereunder, maintain its and all its Subsidiaries’ legal existence and good standing in their respective jurisdictions of organization and maintain qualification in each jurisdiction in which the failure to so qualify could reasonably be expected to have a Material Adverse Change. Comply with all laws, ordinances and regulations to which Borrower or any of its Subsidiaries is subject, the noncompliance with which could reasonably be expected to have a Material Adverse Change.

(b) Obtain and keep in full force and effect, all of the material Governmental Approvals necessary for the performance by Borrower and its Subsidiaries of their respective businesses and obligations under the Loan Documents and the grant of a security interest to Collateral Agent for the ratable benefit of the Secured Parties, in all of the Collateral.

6.2 Financial Statements, Reports, Certificates; Notices.

(a) Deliver to Collateral Agent and each Lender:

(i) no later than thirty (30) days after the last day of each month, a company-prepared consolidated balance sheet and income statement of the Borrower and its consolidated Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;

(ii) as soon as available, but no later than ninety (90) days after the last day of Borrower’s fiscal year or within five (5) days of filing of the same with the SEC, audited consolidated financial statements covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion on the financial statements;

(iii) after approval thereof by Borrower’s board of directors, but no later than the earlier of (x) ten (10) days’ after such approval and (y) each December 15 of the immediately preceding year, Borrower’s annual financial projections for the entire upcoming fiscal year as approved by Borrower’s board of directors; provided that, any revisions to such projections approved by Borrower’s board of directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval;

(iv) within five (5) days of delivery, copies of all non-ministerial statements, reports and notices made available to Borrower’s security holders (other than materials provided to members of the Borrower’s board of directors solely in their capacities as security holder and other than materials subject to confidentiality arrangements which preclude the Borrower to so deliver any such materials);

(v) within five (5) days of filing, all reports of the Borrower on Form 10‑K, 10‑Q and 8‑K filed with the Securities and Exchange Commission; provided that documents required to be delivered pursuant to this Section 6.2(a)(v) shall be deemed to have been delivered on the date on which such documents are posted at www.sec.gov; provided that the Borrower shall notify the Collateral Agent (which may be by email) each time any information is delivered by posting thereto;

(vi) prompt notice (and in any event within five (5) Business Days) of any amendments of or other changes to the respective Operating Documents of Borrower or any of the Guarantors, in each case together with any copies reflecting such amendments or changes with respect thereto;

(vii) no later than thirty (30) days after the last day of each month, copies of the month‑end account statements for each Collateral Account maintained by Borrower or any Guarantor, which statements may be provided to Collateral Agent and each Lender by any Loan Party or directly from the applicable institution(s);

(viii) prompt delivery of (and in any event within five (5) days after the same are sent or received) copies of all material correspondence, reports, documents and other filings with any Governmental Authority that could reasonably be expected to have a material adverse effect on any of the Governmental Approvals material to any Loan Party’s business or that otherwise could reasonably be expected to have a Material Adverse Change;

(ix) prompt notice (and in any event, with respect to clause (A), within five (5) Business Days) of any event that (A) could reasonably be expected to materially and adversely affect the value of the Intellectual Property or (B) could reasonably be expected to result in a Material Adverse Change;

(x) written notice delivered at least ten (10) days’ (or such shorter period agreed to by the Collateral Agent) prior to any Loan Party’s creation of a New Subsidiary in accordance with the terms of Section 6.10);

(xi) written notice delivered at least thirty (30) days’ (or such shorter period agreed to by the Collateral Agent) prior to Borrower’s or any Guarantor’s (A) adding any new offices or business locations, including warehouses (unless such new offices or business locations contain less than Five Hundred Thousand Dollars ($500,000.00) in assets or property of Borrower or any of the Guarantors), (B) changing its respective jurisdiction of organization, (C) changing its organizational structure or type, (D) changing its respective legal name, or (E) changing any organizational number(s) (if any) assigned by its respective jurisdiction of organization;

(xii) upon any Loan Party becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and in any event within three (3) Business Days) written notice of such occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, and Borrower’s proposal regarding how to cure such Event of Default or event;

(xiii) prompt (and in any event within three (3) Business Days) notice if Borrower or any Subsidiary of Borrower has Knowledge that Borrower, or any Subsidiary or controlled Affiliate of Borrower, is listed on the OFAC Lists or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering;

(xiv) concurrently with the delivery of any updated Perfection Certificate pursuant to Section 6.2(c), written notice of any commercial tort claim (as defined in the Code) or letter of credit rights (as defined in the Code) held by Borrower or any Guarantor and not previously disclosed to the Collateral Agent, in each case in an amount greater than One Hundred and Fifty Thousand Dollars ($150,000.00), and of the general details thereof;

(xv) if Borrower or any Guarantor is not now a Registered Organization but later becomes one, written notice of such occurrence and information regarding such Person’s organizational identification number within seven (7) Business Days of receiving such organizational identification number;

(xvi) prompt (and in any event within three (3) Business Days) delivery of copies of any Material Agreement or any material amendment to, material modification of, termination of or material waiver under any Material Agreement;

(xvii) written notice delivered within ten (10) days of any Key Person ceasing to be actively engaged in the management of Borrower;

(xviii) prompt (and in any event within 10 days) written notice of any litigation or governmental proceedings pending or, to the knowledge of the Responsible Officers, threatened (in writing) against Borrower or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to Borrower or any of its Subsidiaries of more than Five Hundred Thousand Dollars ($500,000.00);

(xix) prompt (and in any event within 10 days) written notice of all returns, recoveries, disputes and claims regarding Inventory that involve more than Six Hundred Thousand Dollars ($600,000.00) individually or in the aggregate in any calendar year; and

(xx) other information relating to the Borrower and its Subsidiaries as reasonably requested by Collateral Agent or any Lender; provided, that neither the Borrower nor any of its Subsidiaries will, pursuant to this Section 6.2(a)(xx) or Sections 6.2(d) or 6.8, be required to disclose or permit the inspection or discussion of, any document, information or other matter (A) except to the extent reasonably necessary in order to realize upon any of the Collateral as part of an exercise of remedies under this Agreement or the other Loan Documents following the occurrence and during the continuance of an Event of Default, information constituting material trade secrets to the extent not materially relevant to the credit analysis of the Borrower and its Subsidiaries and to the extent the disclosure of such trade secrets would be materially harmful to the business of the Borrower and its Subsidiaries, or (B) that is subject to attorney-client privilege (or similar legally-recognized privilege that would be lost by virtue of such disclosure to the Collateral Agent and Lenders) or constitutes attorney work product

(xxi) promptly (and in any event on [Monday] of each calendar week) weekly cash flow forecasting reports on a rolling prospective thirteen week basis, which such reports shall include a variance analysis to the previous week’s weekly cash flow forecast , in form and substance satisfactory to Collateral Agent in its sole discretion;

(xxii) promptly (and in any event on Monday and Thursday of each calendar week) bi-weekly revenue reports, which such reports shall include a variance analysis to prior year actual results and budgeted figures, in form and substance satisfactory to Collateral Agent in its sole discretion;

(b) Concurrently with the delivery of the financial statements specified in Section 6.2(a) above but no later than thirty (30) days after the last day of each month, deliver to Collateral Agent and each Lender:

(i) a duly completed Compliance Certificate signed by a Responsible Officer;

(ii) copies of any material Governmental Approvals obtained by Borrower or any of its Subsidiaries during such month; and

(iii) written notice of the commencement of, and any material development in, the proceedings contemplated by Section 5.8(a) during such month.

(c) Concurrently with the delivery of the financial statements specified in Section 6.2(a) above for March, June, September and December but no later than thirty (30) days after the last day of each such month, deliver to the Collateral Agent an updated Perfection Certificate to reflect any amendments, modifications and updates, if any, to in the information set forth in the Perfection Certificate after the Effective Date.

(d) Keep proper, complete and true books of record and account in accordance with GAAP in all material respects. Borrower shall, and shall cause each of its Subsidiaries to, allow, at the sole cost of Borrower, Collateral Agent or any Lender, during regular business hours upon reasonable prior notice (provided that no notice shall be required when an Event of Default has occurred and is continuing), to visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Collateral. Such audits shall be conducted no more often than twice every year unless (and more frequently if) an Event of Default has occurred and is continuing.

6.3 Inventory; Returns. Keep all Inventory in good and marketable condition in all material respects, free from material defects. Returns and allowances between Borrower, or any of its Subsidiaries, as applicable, and their respective Account Debtors shall follow in all material respects Borrower’s, or such Subsidiary’s, customary practices in the ordinary course of business.

6.4 Taxes; Pensions. Timely file and require each of its Subsidiaries to timely file, all required Tax returns and reports and timely pay, and require each of its Subsidiaries to timely pay, all foreign, federal and state Taxes, and all material local Taxes, assessments, deposits and contributions owed by Borrower or its Subsidiaries, except as otherwise permitted pursuant to the terms of Section 5.8 hereof; deliver to Collateral Agent and the Lenders, on demand, appropriate certificates attesting to such payments; and pay all amounts necessary to fund all present pension, profit sharing and deferred compensation plans in accordance with the terms of such plans.

6.5 Insurance. Keep Borrower’s and its Subsidiaries’ business and the Collateral insured for risks and in amounts standard for companies in Borrower’s and its Subsidiaries’ industry and location. Insurance policies shall be in a form, with companies, and in amounts that are customary for companies in Borrower’s and its Subsidiary industry and location. All property policies shall have a lender’s loss payable endorsement showing Collateral Agent as lender loss payee or shall have an endorsement that recognizes the Collateral Agent as a lender loss payee if required by a written contract and such property policies shall waive subrogation against Collateral Agent. All liability policies shall show, or have endorsements showing, Collateral Agent (for the ratable benefit of the Secured Parties), as additional insured, or shall have an endorsement that recognizes the Collateral Agent (for the ratable benefit of the Secured Parties) as additional insured if required by a written contract. The Collateral Agent shall be named as lender loss payee and/or additional insured with respect to any such insurance providing coverage in respect of any Collateral, and each provider of any such insurance shall agree, by endorsement upon the policy or policies issued by it or by independent instruments furnished to the Collateral Agent, that it will give the Collateral Agent thirty (30) days (ten (10) days for non-payment of premiums) prior written notice before any such policy or policies shall be materially altered in a manner adverse to the Borrower and its Subsidiaries or canceled; provided that in the event such provider does not agree to give notice of material alteration, Borrower shall give Collateral Agent such 30 days’ prior notice. At Collateral Agent’s request, Borrower shall deliver to the Collateral Agent certified copies of policies and evidence of all premium payments. Subject to the immediately preceding sentence, proceeds payable under any policy shall, at Collateral Agent’s option, be payable to Collateral Agent, for the ratable benefit of the Secured Parties, on account of the then-outstanding Obligations. Notwithstanding the foregoing, (a) so long as no Event of Default has occurred and is continuing, Borrower shall have the option of applying the proceeds of any casualty policy within one hundred and eighty (180) days of receipt thereof (as may be extended by one hundred and eighty (180) days if a binding commitment has been entered into for the application thereof), toward the replacement or repair of destroyed or damaged property; provided that any such replacement or repaired property shall, to the extent such destroyed or damaged property constituted Collateral, be deemed Collateral in which Collateral Agent has been granted a first priority (subject, in respect of priority, to Permitted Liens that, under applicable law, have priority over Collateral Agent’s Lien) security interest, and (b) after the occurrence and during the continuance of an Event of Default, all proceeds payable under such casualty policy shall, at the option of Collateral Agent, be payable to Collateral Agent, for the ratable benefit of the Lenders, on account of the Obligations. If Borrower or any of its Subsidiaries fails to obtain insurance as required under this Section 6.5 or to pay any premium or other amounts due and payable with respect to such insurance, Collateral Agent and/or any Lender may (but has no obligation to do so), at Borrower’s expense, make all or part of such payment or obtain such insurance policies required in this Section 6.5, and take any action under the policies Collateral Agent or such Lender deems prudent.

6.6 Operating Accounts.

(a) Maintain Borrower’s and Guarantors Collateral Accounts with depositary institutions that have agreed to execute Control Agreements in favor of Collateral Agent with respect to such Collateral Accounts. The provisions of the previous sentence shall not apply to (x) Deposit Accounts, Securities Accounts and/or Commodities Accounts (1) that only contain cash collateral securing letters of credit, in each case, to the extent permitted by clause (k) of the definition of “Permitted Liens”, (2) exclusively used for payroll, (3) exclusively used for payroll Taxes and other employee wage and benefit payments to or for the benefit of Borrower’s, or any Subsidiaries, employees, in each case of clauses (2) and (3) so long as the amounts in such accounts do not exceed amounts reasonably determined by the Borrower to be necessary to pay such obligations for the immediately following payment cycle and (4) other Deposit Accounts, Securities Accounts and/or Commodities Accounts so long as the amounts in such other accounts do not exceed One Hundred Thousand Dollars ($100,000.00) in the aggregate at any one time or (y) the Deposit Account held at Bank of America, N.A., Singapore ending in x02017 (provided that the amount in such Deposit Account does not exceed the lesser of (i) Two Hundred Fifty Thousand Dollars ($250,000.00) in the aggregate at any one time and (ii) the amount required to fund expenditures therefrom within the next 10 Business Days) (the foregoing accounts identified in clauses (x) and (y), collectively the “Excluded Accounts”).

(b) Borrower shall provide Collateral Agent ten (10) days’ prior written notice before Borrower or any Guarantor establishes any Collateral Account. In addition, for each Collateral Account that Borrower or any Guarantor, at any time maintains, Borrower or such Guarantor shall cause the applicable bank or financial institution at or with which such Collateral Account is maintained to execute and deliver a Control Agreement or other appropriate instrument with respect to such Collateral Account to perfect Collateral Agent’s Lien in such Collateral Account (held for the ratable benefit of the Secured Parties) in accordance with the terms hereunder prior to the establishment of such Collateral Account.

(c) Neither Borrower nor any Guarantor shall maintain any Collateral Accounts except Collateral Accounts maintained in accordance with this Section 6.6.

(d) Neither the Collateral Agent nor any Lender shall deliver a notice of exclusive control, any entitlement order, or other directions or instructions pursuant to any Control Agreement, in each case, unless an Event of Default has occurred and is continuing.

6.7 Protection of Intellectual Property Rights. Borrower and each of its Subsidiaries shall: (a) protect, defend and maintain the validity and enforceability of its respective Intellectual Property in a prudent business manner; (b) promptly advise Collateral Agent in writing of material infringement by a third party of its respective Intellectual Property that is material to its business; and (c) not allow any of its respective Intellectual Property material to its respective business to be abandoned, forfeited or dedicated to the public without Collateral Agent’s prior written consent.

6.8 Litigation Cooperation. Make available to Collateral Agent and the Lenders, without expense to Collateral Agent or the Lenders, each Loan Party and each of each Loan Party’s officers, employees and agents and Borrower’s Books, to the extent that Collateral Agent or any Lender may reasonably deem them necessary to prosecute or defend any third‑party suit or proceeding (excluding, for the avoidance of doubt, any suit or proceeding commenced by the Borrower or any of its Subsidiaries) instituted by or against Collateral Agent or any Lender with respect to any Collateral or relating to any Loan Party.

6.9 Landlord Waivers; Bailee Waivers. In the event that Borrower or any Guarantor, after the Effective Date, intends to add any new offices or business locations, including warehouses, or otherwise store any portion of the Collateral with, or deliver any portion of the Collateral to, a bailee, in each case pursuant to Section 7.2, then, in the event that the Collateral at any new location is valued (based on book value) in excess of Five Hundred Thousand Dollars ($500,000.00) in the aggregate, at Collateral Agent’s election, the Borrower shall cause such bailee or landlord, as applicable, to execute and deliver a bailee waiver or landlord waiver, as applicable, in form and substance reasonably satisfactory to Collateral Agent prior to the addition of any such new offices or business locations, or any such storage with or delivery to any such bailee, as the case may be.

6.10 Creation/Acquisition of Subsidiaries. In the event any Borrower or any Subsidiary of the Borrower creates or acquires any Subsidiary after the Effective Date, Borrower or such Subsidiary shall promptly notify the Collateral Agent of such creation or acquisition, and Borrower or such Subsidiary shall take all actions reasonably requested by the Collateral Agent to achieve any of the following with respect to such “New Subsidiary” (defined as a Subsidiary formed after the date hereof during the term of this Agreement): (i) to cause such New Subsidiary to become either a co-Borrower or Guarantor hereunder and to grant a security interest in the Collateral as security for the Obligations; and (ii) to grant and pledge to Collateral Agent a perfected security interest in 100% of the stock, units or other evidence of ownership held by Borrower or such its Subsidiaries of any such New Subsidiary.

6.11 Further Assurances. Execute any further instruments and take further action as Collateral Agent or any Lender reasonably requests to perfect or continue Collateral Agent’s Lien in the Collateral or to effect the purposes of this Agreement.

6.12 Notification and Consultation. Borrower and its Subsidiaries agree to use reasonable best efforts to perform and comply with their respective obligations under the Merger Agreement and other Transaction Documents, and to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper, or advisable under applicable laws to consummate the Merger and the other Contemplated Transactions as promptly as possible and in accordance with the Merger Agreement and other Transaction Documents. If the Borrower or any of its Subsidiaries receives any material notices, communications, filings or other documents (including, without limitation, any drafts thereof) from any third party (including TopCo, Parent or Merger Sub) in connection with the Merger Agreement or any other Transaction Document or any of the Contemplated Transactions, the Borrower shall promptly (and in any event within forty-eight hours of receipt thereof) provide a copy thereof to SLR. If it is necessary or appropriate for the Borrower or any of its Subsidiaries to prepare, provide, file or submit any material notice, communication, filing or document pursuant to the Merger Agreement or any other Transaction Document or in connection with any of the Contemplated Transactions, the Borrower shall provide a draft thereof to SLR reasonably in advance of finalizing, submitting, issuing or releasing such notice, communication, filing or document to permit SLR and its representatives a reasonable amount of time to review and comment thereon and shall incorporate any reasonable comments proposed by SLR or any of its representatives prior to such finalization, submission, issuance or release. Without limiting the foregoing, the Borrower shall, and shall cause its Subsidiaries and its and their respective representatives to, reasonably consult in good faith with SLR, and take into consideration any suggestions, views or advice proposed by SLR in good faith, in connection with (i) any material actions, decisions or matters relating to any of the Transaction Documents or Contemplated Transactions involving the Borrower or any of its Subsidiaries, and (ii) any material notices, communications, filings or other documents necessary or appropriate to be prepared by the Borrower or any of its Subsidiaries pursuant to the Transaction Documents or in connection with any of the Contemplated Transactions, including, without limitation, any regulatory filings (including, without limitation, filings with the SEC, such as any proxy statement, Schedule 13E-3 or Form 8-K) and public announcements or press releases relating to any of the Transaction Documents or the Contemplated Transactions. Notwithstanding anything herein to the contrary, nothing in this Section 6.12 shall affect, limit, impair or modify the rights and remedies of Topco or Parent pursuant to the Merger Agreement with respect to Section 5.3 of the Merger Agreement and shall not otherwise affect, limit, impair or modify any other rights of SLR under the Loan and Security Agreement.

7. NEGATIVE COVENANTS

Borrower shall not, and shall not permit any of its Subsidiaries to, do any of the following prior to the Termination Date without the prior written consent of the Required Lenders:

7.1 Dispositions. Convey, sell, lease, transfer, assign, dispose of or license (collectively, “Transfer”) all or any part of its business or property, except for Transfers (a) of Inventory in the ordinary course of business; (b) of worn‑out or obsolete Equipment; (c) in connection with Permitted Liens, Permitted Investments and Permitted Licenses; (d) of cash or Cash Equivalents pursuant to transactions not prohibited by this Agreement, including Permitted Liens; (e) of any assets by the Borrower or any of the Borrower’s Subsidiaries to the Borrower or any Guarantor; (f) of the assets of a Subsidiary of the Borrower that is not a Guarantor to any other Subsidiary of the Borrower that is not a Guarantor; and (g) of any part of its business or property (other than Intellectual Property) so long as the value of such Transfers does not exceed One Hundred Thousand Dollars ($100,000.00) during any fiscal year.

7.2 Changes in Business, Ownership, or Business Locations. (a) Engage in any business other than the businesses engaged in by Borrower and its Subsidiaries as of the Effective Date or reasonably related thereto; (b) liquidate or dissolve; provided that any Subsidiary may be liquidated or dissolved so long all of the assets of such Subsidiary are disposed of pursuant to a Transfer permitted by Section 7.1, or (c) consummate any transaction or series of related transactions in which (A) the stockholders of Borrower who were not stockholders immediately prior to the first such transaction own more than 35% of the voting stock of Borrower immediately after giving effect to such transaction or related series of such transactions and (B) except as permitted by Section 7.1 or Section 7.3, any Subsidiary ceases to be a direct or indirect Wholly-Owned Subsidiary of the Borrower. Borrower shall not, and shall not permit any Guarantor to, without at least thirty (30) days’ (or such shorter period agreed to by the Collateral Agent) prior written notice to Collateral Agent: (A) add any new offices or business locations, including warehouses (unless such new offices or business locations contain less than Five Hundred Thousand Dollars ($500,000.00) in assets or property of Borrower and the Guarantors); (B) change its respective jurisdiction of organization, (C) except as permitted by Section 7.3, change its respective organizational structure or type, (D) change its respective legal name, or (E) change any organizational number(s) (if any) assigned by its respective jurisdiction of organization.

7.3 Mergers or Acquisitions. Merge or consolidate with any other Person, or acquire all or substantially all of the capital stock or shares or any property of another Person, in each case including for the avoidance of doubt through a merger, purchase, in-licensing arrangement or any similar transaction, except (i) for acquisitions by the Borrower or any Guarantor of any assets of the Borrower or any of its Subsidiaries, (ii) for acquisitions by any Subsidiary of the Borrower that is not a Guarantor of any assets of any other Subsidiary of the Borrower that is not a Guarantor, (iii) for Permitted Acquisitions and (iv) so long as no Event of Default is occurring prior thereto or as a result therefrom, that a Subsidiary of the Borrower may merge with the Borrower or any other Subsidiary of the Borrower (provided that, (a) if the Borrower is a party to any such merger, the Borrower shall be the surviving entity thereof and (b) if any Guarantor is a party to any such merger, a Guarantor (or, if the other party to such merger is the Borrower, the Borrower) shall be the surviving entity).

7.4 Indebtedness. Create, incur, assume, or be liable for any Indebtedness, other than Permitted Indebtedness.

7.5 Encumbrance. Create, incur, allow, or suffer any Lien on any of its property, or assign or convey any right to receive income, including the sale of any Accounts, except for Permitted Liens, or permit any Collateral not to be subject to the first priority (subject, in respect of priority, to Permitted Liens that, under applicable law, have priority over Collateral Agent’s Lien) security interest granted herein.

7.6 Maintenance of Collateral Accounts. Maintain any Collateral Account of the Borrower or any Guarantor, except pursuant to the terms of Section 6.6 hereof.

7.7 Restricted Payments. (a) Declare or pay any dividends (other than dividends payable solely in capital stock) on account of, or make any other distribution or payment in respect of, or redeem, retire or purchase any shares of any class of capital stock of the Borrower or any Subsidiary now or hereafter outstanding (each, a “Restricted Payment”), except (i) for Restricted Payments made to the Borrower or any Guarantor (ii) for Restricted Payments made by any Subsidiary of the Borrower that is not a Guarantor to any other Subsidiary that is not a Guarantor, (iii) so long as no Event of Default exists or would result therefrom, for the making of Restricted Payments solely in the form of equity securities that do not constitute Indebtedness and (iii) for Restricted Payments consisting of the repurchase of equity securities pursuant to the terms of employee stock purchase plans, employee restricted stock agreements, stockholder rights plans, director or consultant stock option plans, or similar plans, provided such repurchases do not exceed Three Hundred and Fifty Thousand Dollars ($350,000.00) in the aggregate per fiscal year, (b) purchase, redeem, defease or prepay any principal of, premium, if any, interest or other amount payable in respect of any Indebtedness, other than (subject to the terms hereof) with respect to the Obligations prior to its scheduled due date, unless being replaced with Permitted Indebtedness, or (c) be a party to or bound by an agreement that restricts a Subsidiary from paying dividends or otherwise distributing property to any Loan Party (other than this Agreement).

7.8 Investments. Directly or indirectly make any Investment other than Permitted Investments.

7.9 Transactions with Affiliates. Directly or indirectly enter into or permit to exist any material transaction with any Affiliate of Borrower or any of its Subsidiaries, except for (a) transactions that are in the ordinary course of Borrower’s or such Subsidiary’s business, upon fair and reasonable terms that are no less favorable to Borrower or such Subsidiary than would be obtained in an arm’s length transaction with a non‑affiliated Person, (b) equity investments by Borrower’s investors in Borrower or its Subsidiaries, (c) transactions between and among the Borrower and the Guarantors and (d) transactions between and among the Borrower or any Guarantor, on the one hand, and any Subsidiary of the Borrower that is not a Guarantor on the other hand, to the extent such transaction is otherwise expressly permitted by any other provision of this Agreement and (e) transactions not otherwise prohibited hereunder between and among Subsidiaries of the Borrower that are not Guarantors.

7.10 [Reserved].

7.11 Compliance. (a) Become an “investment company” or a company controlled by an “investment company”, under the Investment Company Act of 1940, as amended, or undertake as one of its important activities extending credit to purchase or carry margin stock (as defined in Regulation U of the Board of Governors of the Federal Reserve System), or use the proceeds of any Term Loan for any purpose that would violate Regulations X, T and U of the Federal Reserve Board of Governors; (b) fail to meet the minimum funding requirements of ERISA; (c) permit a Reportable Event or Prohibited Transaction, each as defined in ERISA, to occur; (d) fail to comply with the Federal Fair Labor Standards Act or violate any other law or regulation, if the violation could reasonably be expected to have a Material Adverse Change; or (e) withdraw or permit any Subsidiary to withdraw from participation in, permit partial or complete termination of, or permit the occurrence of any other event with respect to, any present pension, profit sharing and deferred compensation plan which could reasonably be expected to result in any material liability of Borrower or any of its Subsidiaries to the Pension Benefit Guaranty Corporation or its successors or any other Governmental Authority.

7.12 Compliance with Anti‑Terrorism Laws. Directly or indirectly, or permit any controlled Affiliate to directly or indirectly, enter into any documents, instruments, agreements or contracts with any Person listed on the OFAC Lists. Directly or indirectly, or permit any controlled Affiliate to directly or indirectly, knowingly (a) conduct any business or engage in any transaction or dealing with any Blocked Person, including, without limitation, the making or receiving of any contribution of funds, goods or services to or for the benefit of any Blocked Person, (b) deal in, or otherwise engage in any transaction relating to, any property or interests in property blocked pursuant to Executive Order No. 13224 or any similar executive order or other Anti‑Terrorism Law, or (c) engage in or conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in Executive Order No. 13224 or other Anti‑Terrorism Law.

7.13 Financial Covenants.

(a) Minimum Net Product Revenue. Permit Net Product Revenue, measured on the last day of each month (commencing with the month ending August 31, 2022) on a trailing six-month basis, to be lower than the Net Product Revenue set forth opposite the applicable month as provided on Schedule 7.13(a) (provided that, if Borrower achieves the Minimum Net Equity Proceeds Milestone, for the remainder of the year ending December 31, 2023 after such achievement, Borrower shall solely be required to demonstrate that the Net Product Revenue is or exceeds $25,000,000.00, measured on trailing six-month basis for the month ending September 30, 2023).

(b) Minimum Liquidity Requirement. Permit, at any time, the Loan Parties and their Subsidiaries to have, on a consolidated basis, Liquidity of less than Five Million Dollars ($5,000,000.00) (the “Minimum Liquidity Requirement”).

7.14 Material Agreements. Without the consent of Collateral Agent, materially amend a Material Agreement in a manner materially adverse to Collateral Agent.

7.15 Material Intellectual Property. Permit any Subsidiary that is not a Guarantor to own any material Intellectual Property or any Intellectual Property material to the operation of the Borrower’s or any Guarantor’s business.

8. EVENTS OF DEFAULT

Any one of the following shall constitute an event of default (an “Event of Default”) under this Agreement:

8.1 Payment Default. Any Loan Party fails to (a) make any payment of principal or interest on any Term Loan on its due date, or (b) pay any other Obligation within three (3) Business Days after such Obligations are due and payable (which three (3) Business Day grace period shall not apply to payments due on the Maturity Date or the date of acceleration pursuant to Section 9.1(a) hereof);

8.2 Covenant Default.

(a) Borrower or any of its Subsidiaries fails or neglects to perform any obligation in Sections 6.2 (Financial Statements, Reports, Certificates), 6.4 (Taxes), 6.5 (Insurance), 6.6 (Operating Accounts), 6.7 (Protection of Intellectual Property Rights), 6.10 (Creation/Acquisition of Subsidiaries), 6.12 (Notification and Consultation), Annex C (Merger Agreement Financing Provisions) or any Loan Party violates any provision in Section 7; or

(b) Borrower, or any Guarantor, fails or neglects to perform, keep, or observe any other term, provision, condition, covenant or agreement contained in this Agreement or any other Loan Document to which such person is a party, and as to any default (other than those specified in this Section 8) under such other term, provision, condition, covenant or agreement that can be cured, has failed to cure the default within fifteen (15) days after the occurrence thereof; provided, however, that if the default cannot by its nature be cured within the fifteen (15) day period or cannot after diligent attempts by Borrower or such Guarantor, as applicable, be cured within such fifteen (15) day period, and such default is likely to be cured within a reasonable time, then Borrower shall have an additional period (which shall not in any case exceed thirty (30) days) to attempt to cure such default, and within such reasonable time period the failure to cure the default shall not be deemed an Event of Default (but no Term Loans shall be made during such cure period);

8.3 Material Adverse Change. An event or circumstance has occurred which would reasonably be expected to have a Material Adverse Change.

8.4 Attachment; Levy; Restraint on Business.

(a) (i) The service of process seeking to attach, by trustee or similar process, any funds of Borrower or any of its Subsidiaries on deposit with any institution at which Borrower or any of its Subsidiaries maintains a Collateral Account, or (ii) a notice of lien, levy, or assessment (other than Permitted Lien) is filed against Borrower or any of its Subsidiaries or their respective assets by any government agency, and the same under subclauses (i) and (ii) of this clause (a) are not, within ten (10) days after the occurrence thereof, discharged or stayed (whether through the posting of a bond or otherwise); and

(b) (i) any material portion of Borrower’s or any of its Subsidiaries’ assets is attached, seized, levied on, or comes into possession of a trustee or receiver, and such attachment, seizure, levy, writ or warrant has not been removed, discharged or rescinded within ten (10) days or (ii) any court order enjoins, restrains, or prevents Borrower or any of its Subsidiaries from conducting all or a material portion of its business affairs;

8.5 Insolvency. (a) Borrower and its Subsidiaries, on a consolidated basis, are or become Insolvent; (b) Borrower or any of its Subsidiaries begins an Insolvency Proceeding; or (c) an Insolvency Proceeding is begun against Borrower or any of its Subsidiaries and not dismissed or stayed within forty‑five (45) days (but no Term Loans shall be extended while Borrower and its Subsidiaries, on a consolidated basis, are Insolvent and/or until any Insolvency Proceeding is dismissed);

8.6 Other Agreements. There is a default in (a) any agreement relating to Indebtedness to which Borrower or any of its Subsidiaries is a party with a third party or parties resulting in a right by such third party or parties, whether or not exercised, to accelerate the maturity of any Indebtedness in an amount in excess of Five Hundred Thousand Dollars ($500,000.00) or (b) there is any default under a Material Agreement in which the default could reasonably be expected to have a Material Adverse Change;

8.7 Judgments. One or more judgments, orders, or decrees for the payment of money in an amount, individually or in the aggregate, of at least Five Hundred Thousand Dollars ($500,000.00) (not covered by independent third‑party insurance as to which (a) Borrower reasonably believes such insurance carrier will accept liability, (b) Borrower or the applicable Subsidiary has submitted such claim to such insurance carrier and (c) liability has not been rejected by such insurance carrier) shall be rendered against Borrower or any of its Subsidiaries and shall remain unsatisfied, unvacated, or unstayed for a period of ten (10) days after the entry thereof;

8.8 Misrepresentations. Borrower or any of its Subsidiaries makes any representation, warranty, or other statement now or later in this Agreement, any Loan Document or in any writing delivered to Collateral Agent and/or the Lenders, and such representation, warranty, or other statement, when taken as a whole, is incorrect in any material respect when made;

8.9 [Reserved].

8.10 Guaranty. Any Guaranty terminates or ceases for any reason to be in full force and effect (other than in accordance with the terms thereof or hereof);

8.11 Governmental Approvals; FDA Action. (a) Any Governmental Approval shall have been revoked, rescinded, suspended, modified in an adverse manner, or not renewed in the ordinary course and such revocation, rescission, suspension, modification or non‑renewal has resulted in or could reasonably be expected to result in a Material Adverse Change; or (b) (i) the FDA, DOJ or other Governmental Authority initiates a Regulatory Action against Borrower or any of its Subsidiaries or any supplier of Borrower or any of its Subsidiaries that causes Borrower or any of its Subsidiaries to recall, withdraw, remove or discontinue manufacturing, distributing, and/or marketing any of its products, even if such action is based on previously disclosed conduct and such recall, withdrawal, removal, or discontinuance could reasonably be expected to result in a Material Adverse Change; (ii) the FDA or any other comparable Governmental Authority issues a warning letter to Borrower or any of its Subsidiaries with respect to any of its activities or products which could reasonably be expected to result in a Material Adverse Change; (iii) Borrower or any of its Subsidiaries conducts a mandatory or voluntary recall which could reasonably be expected to result in a Material Adverse Change; (iv) Borrower or any of its Subsidiaries enters into a settlement agreement with the FDA, DOJ or other Governmental Authority that could reasonably be expected to result in a Material Adverse Change, even if such settlement agreement is based on previously disclosed conduct; or (v) the FDA or any other comparable Governmental Authority revokes any authorization or permission granted under any Registration, or Borrower or any of its Subsidiaries withdraws any Registration, that could reasonably be expected to result in a Material Adverse Change.

8.12 Lien Priority. Except as the result of the action or inaction of the Collateral Agent or any Lender, any Lien created hereunder or by any other Loan Document shall at any time fail to constitute a valid and perfected first priority (subject, in respect of priority, to Permitted Liens that, under applicable law, have priority over Collateral Agent’s Lien) Lien on a material portion of the Collateral purported to be secured by a perfected Lien.

9. RIGHTS AND REMEDIES

9.1 Rights and Remedies.

(a) Upon the occurrence and during the continuance of an Event of Default, Collateral Agent may, and at the written direction of Required Lenders shall, without notice or demand, do any or all of the following: (i) deliver notice of the Event of Default to Borrower, (ii) by notice to Borrower declare all Obligations immediately due and payable (but if an Event of Default described in Section 8.5 occurs all Obligations shall be immediately due and payable without any action by Collateral Agent or the Lenders) or (iii) by notice to Borrower suspend or terminate the obligations, if any, of the Lenders to advance money or extend credit for any Loan Party’s benefit under this Agreement or under any other Loan Document (but if an Event of Default described in Section 8.5 occurs all obligations, if any, of the Lenders to advance money or extend credit for any Loan Party’s benefit under this Agreement or under any other Loan Document shall be immediately terminated without any action by Collateral Agent or the Lenders).

(b) Without limiting the rights of Collateral Agent and the Lenders set forth in Section 9.1(a) above, upon the occurrence and during the continuance of an Event of Default, Collateral Agent shall have the right and at the written direction of the Required Lenders shall, without notice or demand, to do any or all of the following:

(i) foreclose upon and/or sell or otherwise liquidate, the Collateral;

(ii) make a demand for payment upon any Guarantor pursuant to the Guaranty delivered by such Guarantor;

(iii) apply to the Obligations any (A) balances and deposits of any Loan Party that Collateral Agent or any Lender holds or controls, (B) any amount held or controlled by Collateral Agent or any Lender owing to or for the credit or the account of any Loan Party, or (C) amounts received from any Guarantors in accordance with the respective Guaranty delivered by such Guarantor; and/or

(iv) commence and prosecute an Insolvency Proceeding or consent to any Loan Party commencing any Insolvency Proceeding.

(c) Without limiting the rights of Collateral Agent and the Lenders set forth in Sections 9.1(a) and (b) above, upon the occurrence and during the continuance of an Event of Default, Collateral Agent shall have the right and at the written direction of the Required Lenders shall, without notice or demand, to do any or all of the following:

(i) settle or adjust disputes and claims directly with Account Debtors for amounts on terms and in any order that Collateral Agent considers advisable, notify any Person owing any Loan Party money of Collateral Agent’s security interest in such funds, and verify the amount of such account;

(ii) make any payments and do any acts it considers necessary or reasonable to protect the Collateral and/or its Liens in the Collateral (held for the ratable benefit of the Secured Parties). After the occurrence and during the continuance of an Event of Default, (x) each Loan Party shall assemble the Collateral if Collateral Agent requests and make it available at such location as Collateral Agent reasonably designates, (y) Collateral Agent may enter premises where the Collateral is located, take and maintain possession of any part of the Collateral, and pay, purchase, contest, or compromise any Lien which is prior or superior to its security interest and pay all expenses incurred and (z) each Loan Party grants Collateral Agent a license to enter and occupy any of its premises, without charge, to exercise any of Collateral Agent’s rights or remedies;

(iii) ship, reclaim, recover, store, finish, maintain, repair, prepare for sale, and/or advertise for sale, any of the Collateral. After the occurrence and during the continuance of an Event of Default, Collateral Agent is hereby granted a non‑exclusive, royalty‑free license or other right to use, without charge, Borrower’s and each of its Subsidiaries’ labels, patents, copyrights, mask works, rights of use of any name, trade secrets, trade names, trademarks, service marks, and advertising matter, or any similar property as it pertains to the Collateral, in completing production of, advertising for sale, and selling any Collateral and, in connection with Collateral Agent’s exercise of its rights under this Section 9.1, Borrower’s and each of its Subsidiaries’ rights under all licenses and all franchise agreements inure to Collateral Agent, for the benefit of the Lenders;

(iv) place a “hold” on any Collateral Account maintained with Collateral Agent or any Lender or otherwise in respect of which a Control Agreement has been delivered in favor of Collateral Agent (for the ratable benefit of the Secured Parties) and/or deliver a notice of exclusive control, any entitlement order, or other directions or instructions pursuant to any Control Agreement or similar agreements providing control of any Collateral;

(v) demand and receive possession of Borrower’s Books;

(vi) appoint a receiver to seize, manage and realize any of the Collateral, and such receiver shall have any right and authority as any competent court will grant or authorize in accordance with any applicable law, including any power or authority to manage the business of Borrower or any of its Subsidiaries; and

(vii) subject to clauses 9.1(a) and (b), exercise all rights and remedies available to Collateral Agent and each Lender under the Loan Documents or at law or equity, including all remedies provided under the Code (including disposal of the Collateral pursuant to the terms thereof).

Notwithstanding any provision of this Section 9.1 to the contrary, upon the occurrence and during the continuance of any Event of Default, Collateral Agent shall have the right to exercise any and all remedies referenced in this Section 9.1 without the written consent of Required Lenders following the occurrence of an Exigent Circumstance.

9.2 Power of Attorney. Each Loan Party hereby irrevocably appoints Collateral Agent as its lawful attorney‑in‑fact, exercisable upon the occurrence and during the continuance of an Event of Default, to: (a) endorse Borrower’s or any Guarantor’s name on any checks or other forms of payment or security; (b) sign Borrower’s or any Guarantor’s name on any invoice or bill of lading for any Account or drafts against Account Debtors; (c) settle and adjust disputes and claims about the Accounts of Borrower or any Guarantor directly with the applicable Account Debtors, for amounts and on terms Collateral Agent determines reasonable; (d) make, settle, and adjust all claims under Borrower’s or any Guarantor’s insurance policies; (e) pay, contest or settle any Lien, charge, encumbrance, security interest, and adverse claim in or to the Collateral, or any judgment based thereon, in each case that is prior or superior to its security interest (or otherwise take any action to terminate or discharge the same); and (f) transfer the Collateral into the name of Collateral Agent or a third party as the Code or any applicable law permits. Each Loan Party hereby appoints Collateral Agent as its lawful attorney‑in‑fact to sign Borrower’s or any Guarantor’s name on any documents necessary to perfect or continue the perfection of Collateral Agent’s security interest in the Collateral regardless of whether an Event of Default has occurred until the Termination Date. Collateral Agent’s foregoing appointment as Borrower’s or any Guarantor’s attorney in fact, and all of Collateral Agent’s rights and powers thereunder, are coupled with an interest and are irrevocable until the Termination Date.

9.3 Protective Payments. If Borrower or any of its Subsidiaries fail to obtain the insurance called for by Section 6.5 or fails to pay any premium thereon or fails to pay any other amount that could adversely affect the Collateral which Borrower or any of its Subsidiaries is obligated to pay under this Agreement or any other Loan Document, Collateral Agent may obtain such insurance or make such payment, and all amounts so paid by Collateral Agent are Lenders’ Expenses and immediately due and payable, bearing interest at the Default Rate, and secured by the Collateral. Collateral Agent will make reasonable efforts to provide Borrower with notice of Collateral Agent obtaining such insurance or making such payment at the time it is obtained or paid or within a reasonable time thereafter. No such payments by Collateral Agent are deemed an agreement to make similar payments in the future or Collateral Agent’s waiver of any Event of Default.

9.4 Application of Payments and Proceeds. Notwithstanding anything to the contrary contained in this Agreement, upon the occurrence and during the continuance of an Event of Default, (a) each Loan Party irrevocably waives the right to direct the application of any and all payments at any time during the continuance of an Event of Default received by Collateral Agent from or on behalf of Borrower or any of its Subsidiaries of all or any part of the Obligations, and, as between any Loan Party on the one hand and Collateral Agent and Lenders on the other, Collateral Agent shall have the continuing and exclusive right to apply and to reapply any and all payments received against the Obligations in such manner as Collateral Agent may deem advisable notwithstanding any previous application by Collateral Agent, and (b) the proceeds of any sale of, or other realization upon all or any part of the Collateral by the Collateral Agent or any Lender will be applied: first, to the Lenders’ Expenses; second, to accrued and unpaid interest on the Obligations (including any interest which, but for the provisions of the United States Bankruptcy Code, would have accrued on such amounts); third, to the principal amount of the Obligations outstanding; and fourth, to any other Obligations owing to Collateral Agent or any Lender under the Loan Documents. Any balance remaining shall be delivered to Borrower or to whoever may be lawfully entitled to receive such balance or as a court of competent jurisdiction may direct. In carrying out the foregoing, (x) amounts received shall be applied in the numerical order provided until exhausted prior to the application to the next succeeding category, and (y) each of the Persons entitled to receive a payment in any particular category shall receive an amount equal to its pro rata share of amounts available to be applied pursuant thereto for such category. Any reference in this Agreement to an allocation between or sharing by the Lenders of any right, interest or obligation “ratably,” “proportionally” or in similar terms shall refer to the Lenders’ Pro Rata Shares unless expressly provided otherwise. Collateral Agent, or if applicable, each Lender, shall promptly remit to the other Lenders such sums as may be necessary to ensure the ratable repayment of each Lender’s Pro Rata Share of any Term Loan and the ratable distribution of interest, fees and reimbursements paid or made by any Loan Party. Notwithstanding the foregoing, a Lender receiving a scheduled payment shall not be responsible for determining whether the other Lenders also received their scheduled payment on such date; provided, however, if it is later determined that a Lender received more than its Pro Rata Share of scheduled payments made on any date or dates, then such Lender shall remit to Collateral Agent or other Lenders such sums as may be necessary to ensure the ratable payment of such scheduled payments, as instructed by Collateral Agent. If any payment or distribution of any kind or character, whether in cash, properties or securities, shall be received by a Lender in excess of its Pro Rata Share, then the portion of such payment or distribution in excess of such Lender’s Pro Rata Share shall be received and held by such Lender in trust for and shall be promptly paid over to the other Lenders (in accordance with their respective Pro Rata Shares) for application to the payments of amounts due on such other Lenders’ claims. To the extent any payment for the account of any Loan Party is required to be returned as a voidable transfer or otherwise, the Lenders shall contribute to one another as is necessary to ensure that such return of payment is on a pro rata basis. If any Lender shall obtain possession of any Collateral, it shall hold such Collateral for itself and as agent and bailee for the Secured Parties for purposes of perfecting Collateral Agent’s security interest therein (held for the ratable benefit of the Secured Parties).

9.5 Liability for Collateral. So long as Collateral Agent and the Lenders comply with reasonable banking practices regarding the safekeeping of the Collateral in the possession or under the control of Collateral Agent and the Lenders, Collateral Agent and the Lenders shall not be liable or responsible for: (a) the safekeeping of the Collateral; (b) any loss or damage to the Collateral; (c) any diminution in the value of the Collateral; or (d) any act or default of any carrier, warehouseman, bailee, or other Person. Each Loan Party bears all risk of loss, damage or destruction of the Collateral.

9.6 No Waiver; Remedies Cumulative. Failure by Collateral Agent or any Lender, at any time or times, to require strict performance by any Loan Party of any provision of this Agreement or by any Loan Party of any other Loan Document shall not waive, affect, or diminish any right of Collateral Agent or any Lender thereafter to demand strict performance and compliance herewith or therewith. Any waiver hereunder provided in accordance with Section 12.5 shall only be effective for the specific instance and purpose for which it is given. The rights and remedies of Collateral Agent and the Lenders under this Agreement and the other Loan Documents are cumulative. Collateral Agent and the Lenders have all rights and remedies provided under the Code, any applicable law, by law, or in equity. The exercise by Collateral Agent or any Lender of one right or remedy is not an election, and Collateral Agent’s or any Lender’s waiver of any Event of Default is not a continuing waiver. Collateral Agent’s or any Lender’s delay in exercising any remedy is not a waiver, election, or acquiescence.

9.7 Demand Waiver. Each Loan Party waives, to the fullest extent permitted by law, demand, notice of default or dishonor, notice of payment and nonpayment, notice of any default, nonpayment at maturity, release, compromise, settlement, extension, or renewal of accounts, documents, instruments, chattel paper, and guarantees held by Collateral Agent or any Lender on which Borrower or any Subsidiary is liable.

10. NOTICES

Other than as specifically provided herein, all notices, consents, requests, approvals, demands, or other communication (collectively, “Communications”) by any party to this Agreement or any other Loan Document must be in writing and shall be deemed to have been validly served, given, or delivered: (a) upon the earlier of actual receipt and three (3) Business Days after deposit in the U.S. mail, first class, registered or certified mail return receipt requested, with proper postage prepaid; (b) upon transmission, when sent by facsimile or e-mail transmission; (c) one (1) Business Day after deposit with a reputable overnight courier with all charges prepaid; or (d) when delivered, if hand‑delivered by messenger, all of which shall be addressed to the party to be notified and sent to the address, facsimile number, or email address indicated below. Any of Collateral Agent, Lender or Borrower may change its mailing address, facsimile number or e-mail address by giving the other party written notice thereof in accordance with the terms of this Section 10.

If to any Loan Party:	VAPOTHERM, INC. 100 Domain Drive Exeter, NH 03833 Attn: John Landry, VP & CFO Fax: (603) 658-0181 Email: jlandry@vtherm.com

with a copy (which shall not constitute notice) to:	ROPES & GRAY LLP 191 North Wacker Drive, 32^nd Floor Chicago, IL 60606 ~~1211 Avenue of the Americas~~ ~~New York, NY 10036-8704~~ Attn: ~~Jay Kim~~Greg Bauer Phone: (~~212~~312) ~~497-3626~~845-1324 Email: ~~jay~~gregory.~~kim~~bauer@ropesgray.com

If to Collateral Agent:	SLR INVESTMENT CORP. 500 Park Avenue, 3rd Floor New York, NY 10022 Attention: Anthony Storino Fax: (212) 993-1698 Email: astorino@slrcp.com
with a copy (which shall not constitute notice) to:	LATHAM & WATKINS LLP 505 Montgomery Street, Suite 2000 San Francisco, CA 94111 Attention: Haim Zaltzman Facsimile: (415) 395-8095 Email: haim.zaltzman@lw.com

11. CHOICE OF LAW, VENUE AND JURY TRIAL WAIVER

11.1 Waiver of Jury Trial. EACH OF BORROWER, EACH GUARANTOR, COLLATERAL AGENT AND LENDERS UNCONDITIONALLY WAIVES ANY AND ALL RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, ANY OF THE OTHER LOAN DOCUMENTS, ANY OF THE INDEBTEDNESS SECURED HEREBY, ANY DEALINGS AMONG BORROWER, EACH GUARANTOR COLLATERAL AGENT AND/OR LENDERS RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED AMONG BORROWER, EACH GUARANTOR COLLATERAL AGENT AND/OR LENDERS. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT. THIS WAIVER IS IRREVOCABLE. THIS WAIVER MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING. THE WAIVER ALSO SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.

11.2 Governing Law and Jurisdiction. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (EXCLUDING THOSE LOAN DOCUMENTS THAT BY THEIR OWN TERMS ARE EXPRESSLY GOVERNED BY THE LAWS OF ANOTHER JURISDICTION) SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

11.3 Submission to Jurisdiction. Any legal action or proceeding with respect to the Loan Documents shall be brought exclusively in the courts of the State of New York located in the City of New York, Borough of Manhattan, or of the United States of America for the Southern District of New York and, by execution and delivery of this Agreement, each Loan Party, Collateral Agent and the Lenders hereby accept for itself and in respect of each Loan Party’s Property, generally and unconditionally, the jurisdiction of the aforesaid courts. Notwithstanding the foregoing, Collateral Agent and Lenders shall have the right to bring any action or proceeding against any Loan Party (or any property of any Loan Party) in the court of any other jurisdiction Collateral Agent or Lenders deem necessary or appropriate in order to realize on the Collateral or other security for the Obligations. The parties hereto hereby irrevocably waive any objection, including any objection to the laying of venue or based on the grounds of forum non conveniens, that any of them may now or hereafter have to the bringing of any such action or proceeding in such jurisdictions.

11.4 Service of Process. Each Loan Party irrevocably waives personal service of any and all legal process, summons, notices and other documents and other service of process of any kind and consents to such service in any suit, action or proceeding brought in the United States of America with respect to or otherwise arising out of or in connection with any Loan Document by any means permitted by applicable requirements of law, including by the mailing thereof (by registered or certified mail, postage prepaid) to the address of Borrower specified herein (and shall be effective when such mailing shall be effective, as provided therein). Each Loan Party agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

11.5 Non-exclusive Jurisdiction. Nothing contained in this Article 11 shall affect the right of Collateral Agent or Lenders to serve process in any other manner permitted by applicable requirements of law or commence legal proceedings or otherwise proceed against any Loan Party in any other jurisdiction.

12. GENERAL PROVISIONS

12.1 Successors and Assigns. This Agreement binds and is for the benefit of the successors and permitted assigns of each party. No Loan Party may transfer, pledge or assign this Agreement or any rights or obligations under it without Collateral Agent’s prior written consent (which may be granted or withheld in Collateral Agent’s discretion, subject to Section 12.5). The Lenders have the right, without the consent of or notice to any Loan Party unless otherwise provided herein, to sell, transfer, assign, pledge, negotiate, or grant participation in (any such sale, transfer, assignment, negotiation, or grant of a participation, a “Lender Transfer”) all or any part of, or any interest in, the Lenders’ obligations, rights, and benefits under this Agreement and the other Loan Documents; provided, however, that any such Lender Transfer (other than (i) any Lender Transfer at any time that an Event of Default has occurred and is continuing, or (ii) a transfer, pledge, sale or assignment to an Eligible Assignee) of its obligations, rights, and benefits under this Agreement and the other Loan Documents shall require the prior written consent of the Collateral Agent (such approved assignee, an “Approved Lender”). Each Loan Party and Collateral Agent shall be entitled to continue to deal solely and directly with such Lender in connection with the interests so assigned until Collateral Agent shall have received and accepted an effective assignment agreement in form satisfactory to Collateral Agent executed, delivered and fully completed by the applicable parties thereto, and shall have received such other information regarding such Eligible Assignee or Approved Lender as Collateral Agent reasonably shall require. Notwithstanding anything to the contrary contained herein, so long as no Event of Default arising has occurred and is continuing, no Lender Transfer (other than a Lender Transfer in connection with (x) assignments by a Lender due to a forced divestiture at the request of any regulatory agency having authority over the applicable Lender; or (y) upon the occurrence of a default, event of default or similar occurrence with respect to a Lender’s own financing or securitization transactions) shall be permitted, without any Loan Party’s consent, to any Disqualified Institution at the time of such assignment. Collateral Agent, acting solely for this purpose as a non-fiduciary agent of the Loan Parties, shall maintain at one of its offices in the United States a copy of each such assignment agreement for the recordation of the names and addresses of each Lender, and the Term Loan Commitments of, and the principal amount and stated interest of the Term Loans owing each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and each Loan Party, Collateral Agent and Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower at any reasonable time upon reasonable prior notice to the Collateral Agent. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Loan Parties, maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each participant’s interest in the Term Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant’s interest in any commitments, loans or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, Collateral Agent (in its capacity as Collateral Agent) shall have no responsibility for maintaining a Participant Register. Each Loan Party agrees that each participant shall be entitled to the benefits of the provisions in Exhibit I attached hereto (subject to the requirements and limitations therein, including the requirements under Section 7 of Exhibit I attached hereto (it being understood that the documentation required under Section 7 of Exhibit I attached hereto shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to this Section 12.1; provided that such participant shall not be entitled to receive any greater payment under Exhibit I attached hereto, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a change in law that occurs after the participant acquired the applicable participation.

12.2 Indemnification. ~~Each~~Notwithstanding anything to the contrary in any Transaction Document, SLR Financing Agreement or otherwise, each Loan Party agrees to indemnify, defend and hold each Secured Party, SLR and their respective directors, officers, employees, consultants, agents, attorneys, or any other Person affiliated with or representing such Secured Party or SLR (each, an “Indemnified Person”) harmless against: (a) all obligations, demands, claims, and liabilities (collectively, “Claims”) asserted by any other party in connection with; related to; following from; or arising from, out of or under, the transactions contemplated by the Loan Documents, the Transaction Documents and the SLR Financing Agreements; and (b) all losses and Lenders’ Expenses incurred, or paid by an Indemnified Person in connection with; related to; following from; or arising from, out of or under, the transactions contemplated by the Loan Documents, the Transaction Documents and the SLR Financing Agreements (including reasonable and documented external attorneys’ fees and expenses), except, in each case, for Claims losses and/or Lender Expenses directly caused by such Indemnified Person’s gross negligence or willful misconduct. Each Loan Party hereby further agrees to indemnify, defend and hold each Indemnified Person harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including the reasonable and documented fees and disbursements of external counsel for such Indemnified Person) in connection with any investigative, response, remedial, administrative or judicial matter or proceeding, whether or not such Indemnified Person shall be designated a party thereto and including any such proceeding initiated by or on behalf of any Loan Party, and the reasonable and documented expenses of investigation by engineers, environmental consultants and similar technical personnel and any commission, fee or compensation claimed by any broker (other than any broker retained by Collateral Agent or Lenders) asserting any right to payment for the transactions contemplated hereby which may be imposed on, incurred by or asserted against such Indemnified Person as a result of or in connection with the transactions contemplated hereby and the use or intended use of the proceeds of the Term Loans, except for liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements directly caused by such Indemnified Person’s gross negligence or willful misconduct. This Section 12.2 shall not apply with respect to any Taxes other than any Taxes that represent losses, claims, damages, etc., arising from any non-Tax claim.

12.3 Severability of Provisions. Each provision of this Agreement is severable from every other provision in determining the enforceability of any provision.

12.4 Correction of Loan Documents. Notwithstanding anything to the contrary contained in Section 12.5, Collateral Agent and Borrower may, with prior notice to the Lenders, correct mistakes and fill in any blanks in this Agreement and the other Loan Documents consistent with the agreement of the parties.

12.5 Amendments in Writing; Integration. (a) Except as otherwise expressly provided herein, no amendment, modification, termination or waiver of any provision of this Agreement or any other Loan Document, no approval or consent thereunder, or any consent to any departure by Borrower or any of its Subsidiaries therefrom, shall in any event be effective unless the same shall be in writing and signed by Borrower, Collateral Agent and the Required Lenders provided that:

(i) no such amendment, waiver or other modification that would have the effect of increasing or reducing a Lender’s Term Loan Commitment or Commitment Percentage shall be effective as to such Lender without such Lender’s written consent;

(ii) no such amendment, waiver or modification that would affect the rights and duties of Collateral Agent shall be effective without Collateral Agent’s written consent or signature; and

(iii) no such amendment, waiver or other modification shall, unless signed by all the Lenders directly affected thereby, (A) reduce the principal of, rate of interest (other than default interest) on or any fees with respect to any Term Loan or forgive any principal, interest (other than default interest) or fees (other than late charges) with respect to any Term Loan; (B) postpone the date fixed for, or waive, any payment of principal of any Term Loan or of interest on any Term Loan (other than default interest) or any fees provided for hereunder (other than late charges or for any termination of any commitment); (C) change the definition of the term “Required Lenders” or the percentage of Lenders which shall be required for the Lenders to take any action hereunder; (D) release all or substantially all of any material portion of the Collateral, authorize any Loan Party to sell or otherwise dispose of all or substantially all or any material portion of the Collateral or release any Guarantor of all or any portion of the Obligations or its Guaranty obligations with respect thereto, except, in each case with respect to this clause (D), as otherwise may be expressly permitted under this Agreement or the other Loan Documents (including in connection with any disposition permitted hereunder); (E) amend, waive or otherwise modify this Section 12.5 or the definitions of the terms used in this Section 12.5 insofar as the definitions affect the substance of this Section 12.5; (F) consent to the assignment, delegation or other transfer by any Loan Party of any of its rights and obligations under any Loan Document or release any Loan Party of its payment obligations under any Loan Document, except, in each case with respect to this clause (F), pursuant to a transaction expressly permitted pursuant to this Agreement; (G) amend any of the provisions of Section 9.4 or amend any of the definitions of Pro Rata Share, Term Loan Commitment, Commitment Percentage that provide for the Lenders to receive their Pro Rata Shares of any fees, payments, setoffs or proceeds of Collateral hereunder; or (H) subordinate the Liens granted in favor of Collateral Agent securing the Obligations (other than Liens permitted by clause (c) of the definition of “Permitted Liens”); or (I) amend any of the provisions of Section 12.7 and 12.8. It is hereby understood and agreed that all Lenders shall be deemed directly affected by an amendment, waiver or other modification of the type described in the preceding clauses (C), (D), (E), (F), (G) and (H) of the immediately preceding sentence.

(b) Other than as expressly provided for in Section 12.5(a)(i)‑(iii), Collateral Agent may, at its discretion, or if requested by the Required Lenders, from time to time designate covenants in this Agreement less restrictive by notification to a representative of Borrower.

(c) This Agreement and the Loan Documents represent the entire agreement about this subject matter and supersede prior negotiations or agreements with respect to such subject matter. All prior agreements, understandings, representations, warranties, and negotiations between the parties about the subject matter of this Agreement and the Loan Documents merge into this Agreement and the Loan Documents.

12.6 Counterparts. This Agreement may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, is an original, and all taken together, constitute one Agreement. Delivery of an executed counterpart of a signature page of this Agreement by facsimile, portable document format (.pdf) or other electronic transmission will be as effective as delivery of a manually executed counterpart hereof.

12.7 Survival. Except as otherwise provided in this Agreement, all covenants, representations and warranties made in this Agreement continue in full force and effect until the Termination Date. The obligation of the Loan Parties in Section 12.2 to indemnify each Lender and Collateral Agent, as well as the confidentiality provisions in Section 12.8 below, shall survive until the statute of limitations with respect to such claim or cause of action shall have run.

12.8 Confidentiality. In handling any confidential information of Borrower and its Subsidiaries, each of the Lenders and Collateral Agent shall hold such information confidential and shall exercise the same degree of care that it exercises for their own proprietary information, but disclosure of information may be made: (a) subject to the terms and conditions of this Agreement, including this Section 12.8, to the Lenders’ and Collateral Agent’s Subsidiaries, or in connection with a Lender’s own financing or securitization transactions and upon the occurrence of a default, event of default or similar occurrence with respect to such financing or securitization transaction; (b) to prospective transferees or purchasers (other than those identified in (a) above and Disqualified Institutions) of any interest in the Term Loans (provided, however, the Lenders and Collateral Agent shall obtain such prospective transferee’s or purchaser’s agreement to the terms of this provision or to similar confidentiality terms); (c) as required by law, rule, regulation, subpoena or other legal or administrative order; (d) as required or requested by any federal or state regulatory authority (including the Securities and Exchange Commission or other Governmental Authority having regulatory authority over such Lender or the Collateral Agent, as applicable) or any self-regulatory authority and any other public disclosure with investors or other related persons related to such required or requested disclosures with any regulatory or self-regulatory authority; (e) as Collateral Agent reasonably considers appropriate in exercising remedies under the Loan Documents or in connection with any examination or audit so long as such examiners or auditors are subject to confidentiality obligations customary for such examiners or auditors; (f) to third party service providers of the Lenders and/or Collateral Agent so long as such service providers have executed a confidentiality agreement or have agreed to similar confidentiality terms with the Lenders and/or Collateral Agent, as applicable, with terms no less restrictive than those contained herein; and (g) to any Person that is an investor of the Lenders and/or the Collateral Agent so long as such Person has executed a confidentiality agreement or has agreed to similar confidentiality terms with such Lender and/or the Collateral Agent, as applicable, with terms no less restrictive than those contained herein. Confidential information does not include information that either: (i) is in the public domain or in the Lenders’ and/or Collateral Agent’s possession when disclosed to the Lenders and/or Collateral Agent, or becomes part of the public domain after disclosure to the Lenders and/or Collateral Agent through no breach of this provision by the Lenders or the Collateral Agent; or (ii) is disclosed to the Lenders and/or Collateral Agent by a third party, if the Lenders and/or Collateral Agent does not know that the third party is prohibited from disclosing the information. Subject to the restrictions on disclosure set forth above, Collateral Agent and the Lenders may use confidential information for any purpose, including, without limitation, for the development of client databases, reporting purposes, and market analysis. The provisions of the immediately preceding sentence shall survive the termination of this Agreement. The agreements provided under this Section 12.8 supersede all prior agreements, understanding, representations, warranties, and negotiations between the parties about the subject matter of this Section 12.8.

12.9 Right of Set Off. Each Loan Party hereby grants to Collateral Agent and to each Lender, subject to the sentence immediately following, a right of set off as security for all Obligations to Secured Parties hereunder, whether now existing or hereafter arising upon and against all deposits, credits, collateral and property of any Loan Party, now or hereafter in the possession, custody, safekeeping or control of any Secured Party or any entity under the control of such Secured Party (including a Collateral Agent Affiliate), or in transit to any of them. At any time after the occurrence and during the continuance of an Event of Default, without demand or notice, any Secured Party may, with the prior written consent of the Collateral Agent, set off the same or any part thereof and apply the same to any liability or obligation of any Loan Party even though unmatured and regardless of the adequacy of any other collateral securing the Obligations. ANY AND ALL RIGHTS TO REQUIRE COLLATERAL AGENT TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF ANY LOAN PARTY ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY EACH LOAN PARTY.

12.10 Cooperation of Loan Parties. If necessary, each Loan Party agrees to (i) execute any documents reasonably required to effectuate and acknowledge each assignment of a Term Loan Commitment (or portion thereof) or Term Loan (or portion thereof) to an assignee in accordance with Section 12.1, (ii) make any Loan Party’s management personnel available to meet with Collateral Agent and prospective participants and assignees of Term Loan Commitments, the Term Loans or portions thereof (which meetings shall be conducted no more often than twice every twelve months unless an Event of Default has occurred and is continuing), and (iii) assist Collateral Agent and the Lenders in the preparation of information relating to the financial affairs of any Loan Party as any prospective participant or assignee of a Term Loan Commitment (or portions thereof) or Term Loan (or portions thereof) reasonably may request. Subject to the provisions of Section 12.8, each Loan Party authorizes each Lender to disclose to any prospective participant or assignee of a Term Loan Commitment (or portions thereof), any and all information in such Lender’s possession concerning any Loan Party and its financial affairs which has been delivered to such Lender by or on behalf of any Loan Party pursuant to this Agreement, or which has been delivered to such Lender by or on behalf of any Loan Party in connection with such Lender’s credit evaluation of any Loan Party prior to entering into this Agreement.

12.11 Tombstones / Public Announcement. Each Loan Party hereby consents to the publication by the Collateral Agent and each Lender of a tombstone or other comparable advertising material relating to the financing contemplated by this Agreement, provided that (i) the amount of the credit facilities herein is not so published, (ii) no information regarding any stockholders of the Borrower is included therein and (iii) the Borrower is provided a reasonable opportunity to review and comment on such tombstone or such other advertising material prior to publication thereof. In connection therewith, the Collateral Agent and the Lenders may use any Loan Party’s legal name and logos.

12.12 Collateral Agent and Lender Agreement. Collateral Agent and the Lenders hereby agree to the terms and conditions set forth on Exhibit B attached hereto. Each Loan Party hereby acknowledges the terms and conditions set forth on Exhibit B attached hereto.

12.13 Time of Essence. Time is of the essence for the performance of Obligations under this Agreement.

12.14 [Reserved].

12.15 Electronic Execution of Certain Other Documents. The words “execution,” “execute”, “signed,” “signature,” and words of like import in or related to any document to be signed in connection with this Agreement and the transactions contemplated hereby (including without limitation assignments, assumptions, amendments, waivers and consents) shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Collateral Agent, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

13. GUARANTY.

13.1 Guaranty. Each Guarantor hereby agrees that such Guarantor is jointly and severally liable for, and each Guarantor hereby absolutely and unconditionally guarantees to the Collateral Agent and the Lenders and their respective successors and assigns, the full and prompt payment when due (whether at stated maturity, by acceleration or otherwise) and performance of all Obligations owed or hereafter owing to the Collateral Agent and the Lenders by each other Loan Party. Each Guarantor agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, and that its obligations under this Section 13 shall be absolute and unconditional, irrespective of, and unaffected by:

(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Loan Party is or may become a party;

(b) the absence of any action to enforce this Agreement (including this Section 13) or any other Loan Document or the waiver or consent by the Collateral Agent and the Lenders with respect to any of the provisions thereof;

(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by the Collateral Agent and the Lenders in respect thereof (including the release of any such security);

(d) the insolvency of any Loan Party; or

(e) any other action or circumstances which otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.

(f) Each Guarantor shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.

13.2 Waivers by the Guarantors. To the fullest extent permitted by Requirements of Law, each Guarantor expressly waives all rights it may have now or in the future under any statute, or at common law, or pursuant to any other laws or in equity, or otherwise, to compel the Collateral Agent or the Lenders to marshal assets or to proceed in respect of the Obligations guaranteed hereunder against any other Loan Party, any other party or against any security for the payment and performance of the Obligations before proceeding against, or as a condition to proceeding against, such Guarantor. It is agreed among each Guarantor, the Collateral Agent and the Lenders that the foregoing waivers are of the essence of the transaction contemplated by this Agreement and the other Loan Documents and that, but for the provisions of this Section 13 and such waivers, the Collateral Agent and the Lenders would decline to enter into this Agreement,

13.3 Benefit of Guaranty. Each Guarantor agrees that the provisions of this Section 13 are for the benefit of the Collateral Agent and the other Secured Parties and their respective successors, transferees, endorsees and assigns, and nothing herein contained shall impair, as between such Guarantor, on the one hand, and the Collateral Agent and the Lenders, on the other hand, the obligations of such other Guarantor under the Loan Documents.

13.4 Subordination of Subrogation Etc. Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, and except as set forth in Section 13.7 or as needed to permit any Guarantor’s cash management (including inter-company cash management) in the ordinary course of business, each Guarantor hereby expressly subordinates to the prior payment in full, in cash, of the Obligations (other than inchoate indemnity obligations, obligations arising under the Warrants and any other obligations which, by their terms, are to survive the termination of this Agreement) any and all rights pursuant to any laws or in equity to subrogation, reimbursement, exoneration, contribution, indemnification or set off and any and all defenses available to a surety, guarantor or accommodation co-obligor (other than defense of payment in full of the Obligations) until the Termination Date has occurred. Each Guarantor acknowledges and agrees that this subordination is intended to benefit the Collateral Agent and the Lenders and shall not limit or otherwise affect such Guarantor’s liability hereunder or the enforceability of this Section 13, and that the Collateral Agent, the Lenders and their respective successors and assigns are intended third party beneficiaries of the waivers and agreements set forth in this Section 13.4.

13.5 Election of Remedies. If the Collateral Agent or any Lender may, under applicable law, proceed to realize its benefits under any of the Loan Documents giving the Collateral Agent or such Lender a Lien upon any Collateral, whether owned by any Loan Party or by any other Person, either by judicial foreclosure or by non-judicial sale or enforcement, the Collateral Agent or any Lender may, at its sole option, determine which of its remedies or rights it may pursue without affecting any of its rights and remedies under this Section 13. If, in the exercise of any of its rights and remedies, the Collateral Agent or any Lender shall forfeit any of its rights or remedies, including its right to enter a deficiency judgment against any Loan Party or any other Person, whether because of any applicable laws pertaining to “election of remedies” or the like, each Guarantor hereby consents to such action by the Collateral Agent or such Lender and waives any claim based upon such action, even if such action by the Collateral Agent or such Lender shall result in a full or partial loss of any rights of subrogation which each Guarantor might otherwise have had but for such action by the Collateral Agent or such Lender. Any election of remedies which results in the denial or impairment of the right of the Collateral Agent or any Lender to seek a deficiency judgment against any Guarantor shall not impair any other Guarantor’s obligation to pay the full amount of the Obligations. In the event the Collateral Agent or any Lender shall bid at any foreclosure or trustee’s sale or at any private sale permitted by law or the Loan Documents, the Collateral Agent (either directly or through one or more acquisition vehicles) or such Lender may offset the Obligations against the purchase price of such bid in lieu of accepting cash or other non-cash consideration in connection with such sale or other disposition. The amount of the successful bid at any such sale, whether the Collateral Agent, any Lender or any other party is the successful bidder, shall be conclusively deemed to be the fair and reasonably equivalent value of the Collateral and the difference between such bid amount and the remaining balance of the Obligations shall be conclusively deemed to be the amount of the Obligations guaranteed under this Section 13, notwithstanding that any present or future law or court decision or ruling may have the effect of reducing the amount of any deficiency claim to which the Collateral Agent or any Lender might otherwise be entitled but for such bidding at any such sale.

13.6 Limitation. Notwithstanding any provision herein contained to the contrary, the liability of each Guarantor under this Section 13 shall be limited to an amount not to exceed as of any date of determination the highest amount (after giving effect to the right of contribution established in Section 13.7, but before giving effect to any other guarantee) that can be guaranteed by such Guarantor, under the U.S. Bankruptcy Code or any applicable laws relating to fraudulent conveyances, fraudulent transfers or the insolvency of debtors.

13.7 Contribution with Respect to Guaranty Obligations.

(a) To the extent that any Guarantor shall make a payment under this Section 13 of all or any of the Obligations (a “Guarantor Payment”) which, taking into account all other Guarantor Payments then previously or concurrently made by any other Guarantor, exceeds the amount which such Guarantor would otherwise have paid if each Guarantor had paid the aggregate Obligations satisfied by such Guarantor Payment in the same proportion that such Guarantor’s “Allocable Amount” (as defined below) (as determined immediately prior to such Guarantor Payment) bore to the aggregate Allocable Amounts of each of the Guarantors as determined immediately prior to the making of such Guarantor Payment, then, following the occurrence of the Termination Date, such Guarantor shall be entitled to receive contribution and indemnification payments from, and be reimbursed by, each other Loan Party for the amount of such excess, pro rata based upon their respective Allocable Amounts in effect immediately prior to such Guarantor Payment.

(b) As of any date of determination, the “Allocable Amount” of any Guarantor shall be equal to the maximum amount of the claim which could then be recovered from such Guarantor under this Section 13 without rendering such claim voidable or avoidable under Section 548 of Chapter 11 of the United States Bankruptcy Code, as amended or under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common law.

(c) This Section 13.7 is intended only to define the relative rights of the Guarantors and nothing set forth in this Section 13.7 is intended to or shall impair the obligations of the Loan Parties, jointly and severally, to pay any amounts as and when the same shall become due and payable in accordance with the terms of this Agreement, including Section 13.1.

(d) The parties hereto acknowledge that the rights of contribution and indemnification hereunder shall constitute assets of the Guarantor to which such contribution and indemnification is owing.

(e) The rights of the indemnifying Guarantors against other Guarantors under this Section 13.7 shall be exercisable upon and after the Termination Date.

13.8 Liability Cumulative. The liability of the Guarantors under this Section 13 is in addition to and shall be cumulative with all liabilities of each Loan Party to the Collateral Agent and the Lenders under this Agreement and the other Loan Documents, without any limitation as to amount, unless the instrument or agreement evidencing or creating such other liability specifically provides to the contrary.

13.9 Release of Guarantors. Each Lender shall direct Collateral Agent to release and Collateral Agent shall release any Guarantor if all of the stock of such Guarantor owned by Borrower or another Guarantor is sold or transferred in a transaction permitted under the Loan Documents (including pursuant to a valid waiver or consent), to the extent that, after giving effect to such transaction, such Subsidiary would not be required to guaranty any Obligations pursuant to any Loan Document.

[Balance of PageSignature Pages Intentionally ~~Left Blank~~Deleted]

~~IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the Effective Date.~~

~~BORROWER:~~

~~VAPOTHERM, INC.~~


By
~~Name:~~
~~Title:~~


GUARANTORS:

~~HGE HEALTHCARE SOLUTIONS, LLC~~ ~~VAPOTHERM ACCESS CARE MANAGEMENT NETWORK, LLC~~ ~~VAPOTHERM ACCESS MANAGEMENT SERVICES, LLC~~


By
~~Name:~~
~~Title:~~

~~[Signature Page to Loan and Security Agreement]~~

~~COLLATERAL AGENT AND A LENDER:~~

~~SLR INVESTMENT CORP.~~


By
~~Name:~~
~~Title:~~

~~[Signature Page to Loan and Security Agreement]~~

SCHEDULE 1.1*

Lenders and Term Loan Commitments

Term Loans

Lender	Term A Loan Commitments	Term B Loan Commitments**	Commitment Percentage
SLR INVESTMENT CORP.	$~~38,533,436.97~~39,426,517.31	$1,378,219.00	34.46%
SCP PRIVATE CREDIT INCOME FUND SPV, LLC	$~~18,095,181.76~~18,514,569.50	---	15.62%
SLR HC FUND SPV, LLC	$~~16,446,222.08~~16,827,392.27	---	14.20%
SCP PRIVATE CREDIT INCOME BDC SPV LLC	$~~13,498,922.80~~13,811,784.14	---	11.65%
SCP PRIVATE CORPORATE LENDING FUND SPV LLC	$~~12,301,121.12~~12,586,221.29	---	10.62%
SCP CAYMAN DEBT MASTER FUND SPV LLC	$~~5,275,345.88~~5,397,611.32		4.55%
SCP SF DEBT FUND L.P.	$~~1,892,179.10~~1,936,033.69	$151,064.00	1.76%
SLR CP SF DEBT FUND SPV LLC	$~~2,331,410.23~~2,385,444.77		2.01%
SLR HC BDC SPV LLC	$~~3,461,686.95~~3,541,917.64		2.99%
SCP PRIVATE CREDIT INCOME FUND L.P.	---	$647,207.00	0.56%
SCP PRIVATE CREDIT INCOME BDC LLC	---	$482,813.00	0.42%
SCP PRIVATE CORPORATE LENDING FUND L.P.	---	$628,654.00	0.54%
SLR HC ONSHORE FUND L.P.	---	$588,229.00	0.51%
SLR HC BDC LLC	---	$123,814.00	0.11%
TOTAL	$~~111,835,506.89~~ 114,427,491.93	$~~4,000,000~~9,000,000	100.0000%

*Amounts reflected in Schedule 1.1 include the original funded principal of the Term Loans and PIK Interest through ~~March 26~~June 1, 2024.

**Term B Loans are subject to approval by the Lenders’ investment committee in its sole and unfettered discretion.

SCHEDULE 7.13(a)

Month-End	Net Product Revenue
August 2022	$25,488,089
September 2022	$26,080,351
October 2022	$26,968,776
November 2022	$28,298,353
December 2022	$29,040,342
January 2023	$32,239,000
February 2023	$33,512,000
March 2023	$34,344,000
April 2023	$34,924,000
May 2023	$35,094,000
June 2023	$34,913,000
July 2023	$33,316,000
August 2023	$32,320,000
September 2023	$32,206,000
October 2023	$33,329,000
November 2023	$34,825,000
December 2023	$37,130,000
January 2024 and each month thereafter	75% (or such other percentage determined by Collateral Agent in consultation with Borrower) of projected Net Product Revenue in accordance with an annual plan submitted by Borrower to Lenders pursuant to Section 6.2(a)(iii), such plan to be approved by Borrower’s board of directors and subject to the approval by Collateral Agent and Lenders in writing.

EXHIBIT A

Description of Collateral

The Collateral consists of all of each Loan Party’s right, title and interest in and to the following property:

Subject to the exceptions noted below:

all goods, Accounts (including health‑care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, Intellectual Property, General Intangibles, commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash and other Collateral Accounts, all certificates of deposit, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and

all of each any Loan Party’s books and records relating to the foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing.

Notwithstanding the foregoing, the Collateral shall not include: (a) any “intent-to-use” trademark or service mark application for which a statement of use has not been filed and accepted, solely to the extent that the grant of a security interest in any such trademark application would impair the validity or enforceability of the resulting trademark registration or result in cancellation of such trademark application; (b) any interest of Borrower or Guarantor as a lessee or sublessee under a real property lease; (c) rights held under a lease, license, contract, property right or other General Intangible that are not assignable by their terms without the consent of a Person (other than the Borrower or Guarantor) (but only to the extent such restriction on assignment is effective under Section 9-406, 9-407, 9-408 or 9-409 of the Code (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity); (d)(i) any assets subject to purchase money indebtedness (so long as the (x) the purchase money indebtedness and Liens securing such indebtedness are permitted under the Agreement and (y) the documentation evidencing such purchase money indebtedness expressly prohibit a grant of any additional Liens on such assets) or (ii) any interest of Borrower or any Guarantor as a lessee under an Equipment lease if Borrower or such Guarantor is prohibited by the terms of such lease from granting a security interest in such lease or under which such an assignment or Lien would cause a default to occur under such lease; provided, however, that upon termination of such prohibition, such interest shall immediately become Collateral without any action by Borrower, such Guarantor, Collateral Agent or any Lender; (e) Excluded Accounts or (f) such other assets that the Collateral Agent and the Borrower agree that the cost of obtaining a security interest in such asset is excessive in relation to the value of the security to be afforded thereby (the foregoing clauses (a) through (f) are herein referred to as “Excluded Assets”). Neither the Borrower nor any Guarantor shall be obligated to enter into any leasehold mortgages with respect to any leased property.

EXHIBIT B

Collateral Agent and Lender Terms

1. Appointment of Collateral Agent.

(a) Each Lender hereby appoints SLR (together with any successor Collateral Agent pursuant to Section 7 of this Exhibit B) as Collateral Agent under the Loan Documents and authorizes Collateral Agent to (i) execute and deliver the Loan Documents and accept delivery thereof on its behalf from any Loan Party, (ii) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Collateral Agent under such Loan Documents and (iii) exercise such powers as are reasonably incidental thereto.

(b) Without limiting the generality of clause (a) above, Collateral Agent shall have the sole and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to Collateral Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Collateral Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for the Secured Parties for purposes of the perfection of all Liens created by the Loan Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral as permitted pursuant to the Loan Agreement, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document, exercise all remedies given to Collateral Agent and the other Lenders with respect to the any Loan Party and/or the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Collateral Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Collateral Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Collateral Account maintained by Borrower or any Guarantor with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Collateral Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Collateral Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit from this Exhibit B to the extent provided by Collateral Agent.

(c) Under the Loan Documents, Collateral Agent (i) is acting solely on behalf of the Lenders, with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Collateral Agent”, the terms “agent”, “Collateral Agent” and “collateral agent” and similar terms in any Loan Document to refer to Collateral Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender or any other Person and (iii) shall have no implied functions, responsibilities, duties, obligations or other liabilities under any Loan Document, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not to assert any claim against Collateral Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth in the Loan Documents, Collateral Agent shall not have any duty to disclose, and shall not be liable for failure to disclose, any information relating to Borrower or any of its Subsidiaries that is communicated to or obtained by SLR or any of its Affiliates in any capacity.

Binding Effect; Use of Discretion; E-Systems.

(a) Each Lender, by accepting the benefits of the Loan Documents, agrees that (i) any action taken by Collateral Agent or the Required Lenders (or, if expressly required in any Loan Document, a greater proportion of the Lenders) in accordance with the provisions of the Loan Documents, (ii) any action taken by Collateral Agent in reliance upon the instructions of the Required Lenders (or, where so required, such greater proportion) and (iii) the exercise by Collateral Agent or the Required Lenders (or, where so required, such greater proportion) of the powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and binding upon all of Lenders.

(b) If Collateral Agent shall request instructions from the Required Lenders or all affected Lenders with respect to any act or action (including failure to act) in connection with any Loan Document, then Collateral Agent shall be entitled to refrain from such act or taking such action unless and until Collateral Agent shall have received instructions from the Required Lenders or all affected Lenders, as the case may be, and Collateral Agent shall not incur liability to any Person by reason of so refraining. Collateral Agent shall be fully justified in failing or refusing to take any action under any Loan Document (i) if such action would, in the opinion of Collateral Agent, be contrary to any Requirement of Law or any Loan Document, (ii) if such action would, in the opinion of Collateral Agent, expose Collateral Agent to any potential liability under any Requirement of Law or (iii) if Collateral Agent shall not first be indemnified to its satisfaction by the Lenders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Without limiting the foregoing, no Lender shall have any right of action whatsoever against Collateral Agent as a result of Collateral Agent acting or refraining from acting under any Loan Document in accordance with the instructions of the Required Lenders or all affected Lenders, as applicable.

(c) Collateral Agent is hereby authorized by each Loan Party and each Lender to establish procedures (and to amend such procedures from time to time) to facilitate administration and servicing of the Term Loans and other matters incidental thereto. Without limiting the generality of the foregoing, Collateral Agent is hereby authorized to establish procedures to make available or deliver, or to accept, notices, documents and similar items on, by posting to or submitting and/or completion, on E-Systems. Each Loan Party and each Lender acknowledges and agrees that the use of transmissions via an E-System or electronic mail is not necessarily secure and that there are risks associated with such use, including risks of interception, disclosure and abuse, and Each Loan Party and each Lender assumes and accepts such risks by hereby authorizing the transmission via E-Systems or electronic mail. Each “e‑signature” on any such posting shall be deemed sufficient to satisfy any requirement for a “signature”, and each such posting shall be deemed sufficient to satisfy any requirement for a “writing”, in each case including pursuant to any Loan Document, any applicable provision of any Code, the federal Uniform Electronic Transactions Act, the Electronic Signatures in Global and National Commerce Act and any substantive or procedural Requirement of Law governing such subject matter. All uses of an E-System shall be governed by and subject to, in addition to this Section, the separate terms, conditions and privacy policy posted or referenced in such E-System (or such terms, conditions and privacy policy as may be updated from time to time, including on such E-System) and related contractual obligations executed by Collateral Agent, each Loan Party and/or Lenders in connection with the use of such E-System. ALL E-SYSTEMS AND ELECTRONIC TRANSMISSIONS SHALL BE PROVIDED “AS IS” AND “AS AVAILABLE”. NO REPRESENTATION OR WARRANTY OF ANY KIND IS MADE BY COLLATERAL AGENT, ANY LENDER OR ANY OF THEIR RELATED PERSONS IN CONNECTION WITH ANY E‑SYSTEMS.

3. Collateral Agent’s Reliance, Etc. Collateral Agent may, without incurring any liability hereunder, (a) consult with any of its Related Persons and, whether or not selected by it, any other advisors, accountants and other experts (including advisors to, and accountants and experts engaged by, any Loan Party) and (b) rely and act upon any document and information (including those transmitted by electronic transmission) and any telephone message or conversation, in each case believed by it to be genuine and transmitted, signed or otherwise authenticated by the appropriate parties. None of Collateral Agent and its Related Persons shall be liable for any action taken or omitted to be taken by any of them under or in connection with any Loan Document, and each Lender and each Loan Party hereby waives and shall not assert (and Borrower shall cause its Subsidiaries to waive and agree not to assert) any right, claim or cause of action based thereon, except to the extent of liabilities resulting from the gross negligence or willful misconduct of Collateral Agent or, as the case may be, such Related Person (each as determined in a final, non-appealable judgment of a court of competent jurisdiction). Without limiting the foregoing, Collateral Agent: (i) shall not be responsible or otherwise incur liability for any action or omission taken in reliance upon the instructions of the Required Lenders or for the actions or omissions of any of its Related Persons, except to the extent that a court of competent jurisdiction determines in a final non-appealable judgment that Collateral Agent acted with gross negligence or willful misconduct in the selection of such Related Person; (ii) shall not be responsible to any Lender or other Person for the due execution, legality, validity, enforceability, effectiveness, genuineness, sufficiency or value of, or the attachment, perfection or priority of any Lien created or purported to be created under or in connection with, any Loan Document; (iii) makes no warranty or representation, and shall not be responsible, to any Lender or other Person for any statement, document, information, representation or warranty made or furnished by or on behalf of any Loan Party or any Related Person of any Loan Party in connection with any Loan Document or any transaction contemplated therein or any other document or information with respect to any Loan Party, whether or not transmitted or (except for documents expressly required under any Loan Document to be transmitted to the Lenders) omitted to be transmitted by Collateral Agent, including as to completeness, accuracy, scope or adequacy thereof, or for the scope, nature or results of any due diligence performed by Collateral Agent in connection with the Loan Documents; and (iv) shall not have any duty to ascertain or to inquire as to the performance or observance of any provision of any Loan Document, whether any condition set forth in any Loan Document is satisfied or waived, as to the financial condition of any Loan Party or as to the existence or continuation or possible occurrence or continuation of any Event of Default, and shall not be deemed to have notice or knowledge of such occurrence or continuation unless it has received a notice from Borrower or any Lender describing such Event of Default that is clearly labeled “notice of default” (in which case Collateral Agent shall promptly give notice of such receipt to all Lenders, provided that Collateral Agent shall not be liable to any Lender for any failure to do so, except to the extent that such failure is attributable to Collateral Agent’s gross negligence or willful misconduct as determined by a final non-appealable judgment of a court of competent jurisdiction); and, for each of the items set forth in clauses (i) through (iv) above, each Lender and each Loan Party hereby waives and agrees not to assert (and each Loan Party shall cause its Subsidiaries to waive and agree not to assert) any right, claim or cause of action it might have against Collateral Agent based thereon.

4. Collateral Agent Individually. Collateral Agent and its Affiliates may make loans and other extensions of credit to, acquire stock and stock equivalents of, engage in any kind of business with, any Loan Party or any Affiliate of any Loan Party as though it were not acting as Collateral Agent and may receive separate fees and other payments therefor. To the extent Collateral Agent or any of its Affiliates makes any Term Loans or otherwise becomes a Lender hereunder, it shall have and may exercise the same rights and powers hereunder and shall be subject to the same obligations and liabilities as any other Lender and the terms “Lender”, “Required Lender” and any similar terms shall, except where otherwise expressly provided in any Loan Document, include, without limitation, Collateral Agent or such Affiliate, as the case may be, in its individual capacity as Lender, or as one of the Required Lenders.

5. Lender Credit Decision; Collateral Agent Report. Each Lender acknowledges that it shall, independently and without reliance upon Collateral Agent, any Lender or any of their Related Persons or upon any document solely or in part because such document was transmitted by Collateral Agent or any of its Related Persons, conduct its own independent investigation of the financial condition and affairs of the Loan Parties and make and continue to make its own credit decisions in connection with entering into, and taking or not taking any action under, any Loan Document or with respect to any transaction contemplated in any Loan Document, in each case based on such documents and information as it shall deem appropriate. Except for documents expressly required by any Loan Document to be transmitted by Collateral Agent to the Lenders, Collateral Agent shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, prospects, operations, Property, financial and other condition or creditworthiness of any Loan Parties or any Affiliate of any Loan Parties that may come in to the possession of Collateral Agent or any of its Related Persons. Each Lender agrees that is shall not rely on any field examination, audit or other report provided by Collateral Agent or its Related Persons (an “Collateral Agent Report”). Each Lender further acknowledges that any Collateral Agent Report (a) is provided to the Lenders solely as a courtesy, without consideration, and based upon the understanding that such Lender will not rely on such Collateral Agent Report, (b) was prepared by Collateral Agent or its Related Persons based upon information provided by the Loan Parties solely for Collateral Agent’s own internal use, and (c) may not be complete and may not reflect all information and findings obtained by Collateral Agent or its Related Persons regarding the operations and condition of the Loan Parties. Neither Collateral Agent nor any of its Related Persons makes any representations or warranties of any kind with respect to (i) any existing or proposed financing, (ii) the accuracy or completeness of the information contained in any Collateral Agent Report or in any related documentation, (iii) the scope or adequacy of Collateral Agent’s and its Related Persons’ due diligence, or the presence or absence of any errors or omissions contained in any Collateral Agent Report or in any related documentation, and (iv) any work performed by Collateral Agent or Collateral Agent’s Related Persons in connection with or using any Collateral Agent Report or any related documentation. Neither Collateral Agent nor any of its Related Persons shall have any duties or obligations in connection with or as a result of any Lender receiving a copy of any Collateral Agent Report. Without limiting the generality of the forgoing, neither Collateral Agent nor any of its Related Persons shall have any responsibility for the accuracy or completeness of any Collateral Agent Report, or the appropriateness of any Collateral Agent Report for any Lender’s purposes, and shall have no duty or responsibility to correct or update any Collateral Agent Report or disclose to any Lender any other information not embodied in any Collateral Agent Report, including any supplemental information obtained after the date of any Collateral Agent Report. Each Lender releases, and agrees that it will not assert, any claim against Collateral Agent or its Related Persons that in any way relates to any Collateral Agent Report or arises out of any Lender having access to any Collateral Agent Report or any discussion of its contents, and agrees to indemnify and hold harmless Collateral Agent and its Related Persons from all claims, liabilities and expenses relating to a breach by any Lender arising out of such Lender’s access to any Collateral Agent Report or any discussion of its contents.

6. Indemnification. Each Lender agrees to reimburse Collateral Agent and each of its Related Persons (to the extent not reimbursed by Borrower or any other Loan Party as required under the Loan Documents (including pursuant to Section 12.2 of the Agreement)) promptly upon demand for its Pro Rata Share of any out-of-pocket costs and expenses (including, without limitation, fees, charges and disbursements of financial, legal and other advisors and any Taxes or insurance paid in the name of, or on behalf of, Borrower or any other Loan Party) incurred by Collateral Agent or any of its Related Persons in connection with the preparation, syndication, execution, delivery, administration, modification, amendment, consent, waiver or enforcement of, or the taking of any other action (whether through negotiations, through any work-out, bankruptcy, restructuring or other legal or other proceeding (including, without limitation, preparation for and/or response to any subpoena or request for document production relating thereto) or otherwise) in respect of, or legal advice with respect to, its rights or responsibilities under, any Loan Document. Each Lender further agrees to indemnify Collateral Agent and each of its Related Persons (to the extent not reimbursed by Borrower or any other Loan Party as required under the Loan Documents (including pursuant to Section 12.2 of the Agreement)), ratably according to its Pro Rata Share, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever (including, to the extent not indemnified by the applicable Lender, Taxes, interests and penalties imposed for not properly withholding or backup withholding on payments made to or for the account of any Lender) that may be imposed on, incurred by, or asserted against Collateral Agent or any of its Related Persons in any matter relating to or arising out of, in connection with or as a result of any Loan Document or any other act, event or transaction related, contemplated in or attendant to any such document, or, in each case, any action taken or omitted to be taken by Collateral Agent or any of its Related Persons under or with respect to the foregoing; provided that no Lender shall be liable to Collateral Agent or any of its Related Persons under this Section 6 of this Exhibit B to the extent such liability has resulted from the gross negligence or willful misconduct of Collateral Agent or, as the case may be, such Related Person, as determined by a final non-appealable judgment of a court of competent jurisdiction. To the extent required by any applicable Requirement of Law, Collateral Agent may withhold from any payment to any Lender under a Loan Document an amount equal to any applicable withholding Tax. If the IRS or any other Governmental Authority asserts a claim that Collateral Agent did not properly withhold Tax from amounts paid to or for the account of any Lender for any reason, or if Collateral Agent reasonably determines that it was required to withhold Taxes from a prior payment to or for the account of any Lender but failed to do so, such Lender shall promptly indemnify Collateral Agent fully for all amounts paid, directly or indirectly, by Collateral Agent as Tax or otherwise, including penalties and interest, and together with all expenses incurred by Collateral Agent. Collateral Agent may offset against any payment to any Lender under a Loan Document, any applicable withholding Tax that was required to be withheld from any prior payment to such Lender but which was not so withheld, as well as any other amounts for which Collateral Agent is entitled to indemnification from such Lender under the immediately preceding sentence of this Section 6 of this Exhibit B.

7. Successor Collateral Agent. Collateral Agent may resign at any time by delivering notice of such resignation to the Lenders and Borrower, effective on the date set forth in such notice (which date shall be no earlier than thirty (30) after the date of such notice, and if no date shall be set forth in such notice, thirty (30) days after the date of delivery thereof), in accordance with the terms of this Section 7 of this Exhibit B. If Collateral Agent delivers any such notice, the Required Lenders shall have the right to appoint a successor Collateral Agent with the consent of the Borrower (such consent not to be unreasonably withheld or delayed). If, after 30 days after the date of the retiring Collateral Agent’s notice of resignation, no successor Collateral Agent has been appointed by the Required Lenders and has accepted such appointment, then the retiring Collateral Agent may, on behalf of the Lenders, appoint a successor Collateral Agent from among the Lenders. Effective immediately upon its resignation, (a) the retiring Collateral Agent shall be discharged from its duties and obligations under the Loan Documents (other than its duties and obligations under Section 12.8 of the Agreement), (b) the Lenders shall assume and perform all of the duties of Collateral Agent until a successor Collateral Agent shall have accepted a valid appointment hereunder, (c) the retiring Collateral Agent and its Related Persons shall no longer have the benefit of any provision of any Loan Document other than with respect to any actions taken or omitted to be taken while such retiring Collateral Agent was, or because such Collateral Agent had been, validly acting as Collateral Agent under the Loan Documents, and (iv) subject to its rights under Section 2(b) of this Exhibit B, the retiring Collateral Agent shall take such action as may be reasonably necessary to assign to the successor Collateral Agent its rights as Collateral Agent under the Loan Documents. Effective immediately upon its acceptance of a valid appointment as Collateral Agent, a successor Collateral Agent shall succeed to, and become vested with, all the rights, powers, privileges and duties of the retiring Collateral Agent under the Loan Documents.

8. Release of Guarantors and Collateral. Each Lender hereby consents to the release and hereby directs Collateral Agent to release (or in the case of clause (b)(ii) below, release or subordinate) the following:

(a) any Guarantor if all of the stock of such Guarantor owned by Borrower or another Guarantor is sold or transferred in a transaction permitted under the Loan Documents (including pursuant to a valid waiver or consent), to the extent that, after giving effect to such transaction, such Subsidiary would not be required to guaranty any Obligations pursuant to any Loan Document; and

(b) any Lien held by Collateral Agent for the benefit of the Secured Parties against (i) any Collateral that is sold or otherwise disposed of by Borrower or any Guarantor in a transaction permitted by the Loan Documents (including pursuant to a valid waiver or consent), (ii) any Collateral subject to a Lien that is expressly permitted under clause (c) of the definition of the term “Permitted Lien” and (iii) all of the Collateral and Borrower and Guarantors upon the occurrence of the Termination Date.

9. Setoff and Sharing of Payments. In addition to any rights now or hereafter granted under any applicable Requirement of Law and not by way of limitation of any such rights, upon the occurrence and during the continuance of any Event of Default and subject to Section 10(d) of this Exhibit B, each Lender is hereby authorized at any time or from time to time upon the direction of Collateral Agent, without notice to Borrower or any other Person, any such notice being hereby expressly waived, to setoff and to appropriate and to apply any and all balances held by it at any of its offices for the account of Borrower or any other Loan Party (regardless of whether such balances are then due to Borrower or any other Loan Party) and any other properties or assets of the Borrower or any Loan Party at any time held or owing by that Lender to or for the credit or for the account of Borrower or any other Loan Party against and on account of any of the Obligations that are not paid when due. Any Lender exercising a right of setoff, or otherwise receiving any payment on account of the Obligations in excess of its Pro Rata Share thereof, shall purchase for cash (and the other Lenders shall sell) such participations in each such other Lender’s Pro Rata Share of the Obligations as would be necessary to cause such Lender to share the amount so offset or otherwise received with each other Lender in accordance with their respective Pro Rata Shares of the Obligations. Each Loan Party agrees, to the fullest extent permitted by law, that (a) any Lender may exercise its right to setoff in accordance with this Section 9 or Section 12.9 of the Agreement with respect to amounts in excess of its Pro Rata Share of the Obligations and may purchase participations in accordance with the preceding sentence and (b) any Lender so purchasing a participation in the Term Loans made or other Obligations held by other Lenders may exercise all rights of offset, bankers’ liens, counterclaims or similar rights with respect to such participation as fully as if such Lender were a direct holder of the Term Loans and the other Obligations in the amount of such participation. Notwithstanding the foregoing, if all or any portion of the offset amount or payment otherwise received is thereafter recovered from the Lender that has exercised the right of offset, the purchase of participations by that Lender shall be rescinded and the purchase price restored without interest.

10. Advances; Payments; Non-Funding Lenders; Actions in Concert.

(a) Advances; Payments. If Collateral Agent receives any payment with respect to a Term Loan for the account of the Lenders on or prior to 2:00 p.m. (New York time) on any Business Day, Collateral Agent shall pay to each applicable Lender such Lender’s Pro Rata Share of such payment on such Business Day. If Collateral Agent receives any payment with respect to a Term Loan for the account of Lenders after 2:00 p.m. (New York time) on any Business Day, Collateral Agent shall pay to each applicable Lender such Lender’s Pro Rata Share of such payment on the next Business Day.

(b) Return of Payments.

(i) If Collateral Agent pays an amount to a Lender under this Agreement in the belief or expectation that a related payment has been or will be received by Collateral Agent from, or on behalf of, Borrower or any other Loan Party and such related payment is not received by Collateral Agent, then Collateral Agent will be entitled to recover such amount (including interest accruing on such amount at the rate otherwise applicable to such Obligation) from such Lender on demand without setoff, counterclaim or deduction of any kind.

(ii) If Collateral Agent determines at any time that any amount received by Collateral Agent under any Loan Document must be returned to Borrower or any other Loan Party or paid to any other Person pursuant to any insolvency law or otherwise, then, notwithstanding any other term or condition of any Loan Document, Collateral Agent will not be required to distribute any portion thereof to any Lender. In addition, each Lender will repay to Collateral Agent on demand any portion of such amount that Collateral Agent has distributed to such Lender, together with interest at such rate, if any, as Collateral Agent is required to pay to Borrower or any other Loan Party or such other Person, without setoff, counterclaim or deduction of any kind and Collateral Agent will be entitled to set off against future distributions to such Lender any such amounts (with interest) that are not repaid on demand.

(i) Unless Collateral Agent shall have received notice from a Lender prior to the date of any Term Loan that such Lender will not make available to Collateral Agent such Lender’s Pro Rata Share of such Term Loan, Collateral Agent may assume that such Lender will make such amount available to it on the date of such Term Loan, and Collateral Agent may (but shall not be obligated to), in reliance upon such assumption, make available a corresponding amount for the account of Borrower on such date. If and to the extent that such Lender shall not have made such amount available to Collateral Agent, such Lender and Borrower severally agree to repay to Collateral Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the day such amount is made available to Borrower until the day such amount is repaid to Collateral Agent, at a rate per annum equal to the interest rate applicable to the Obligation that would have been created when Collateral Agent made available such amount to Borrower had such Lender made a corresponding payment available. If such Lender shall repay such corresponding amount to Collateral Agent, the amount so repaid shall constitute such Lender’s portion of such Term Loan for purposes of this Agreement.

(ii) To the extent that any Lender has failed to fund any Term Loan or any other payments required to be made by it under the Loan Documents after any such Term Loan is required to be made or such payment is due (a “Non-Funding Lender”), Collateral Agent shall be entitled to set off the funding short-fall against that Non-Funding Lender’s Pro Rata Share of all payments received from or on behalf of Borrower thereunder. The failure of any Non‑Funding Lender to make any Term Loan or any payment required by it hereunder shall not relieve any other Lender (each such other Lender, an “Other Lender”) of its obligations to make such Term Loan, but neither any Other Lender nor Collateral Agent shall be responsible for the failure of any Non-Funding Lender to make such Term Loan or make any other payment required hereunder. Notwithstanding anything set forth herein to the contrary, a Non-Funding Lender shall not have any voting or consent rights under or with respect to any Loan Document or constitute a “Lender” (or be included in the calculation of “Required Lenders” hereunder) for any voting or consent rights under or with respect to any Loan Document. At Borrower’s request, Collateral Agent or a Person reasonably acceptable to Collateral Agent shall have the right with Collateral Agent’s consent and in Collateral Agent’s sole discretion (but Collateral Agent or any such Person shall have no obligation) to purchase from any Non-Funding Lender, and each Lender agrees that if it becomes a Non-Funding Lender it shall, at Collateral Agent’s request, sell and assign to Collateral Agent or such Person, all of the Term Loan Commitment (if any), and all of the outstanding Term Loan of that Non-Funding Lender for an amount equal to the aggregate outstanding principal balance of the Term Loan held by such Non-Funding Lender and all accrued and unpaid interest with respect thereto through the date of sale, such purchase and sale to be consummated pursuant to an executed assignment agreement in form and substance reasonably satisfactory to, and acknowledged by, Collateral Agent.

(d) Actions in Concert. Anything in this Agreement to the contrary notwithstanding, each Lender hereby agrees with each other Lender that no Lender shall take any action to protect or enforce its rights arising out of any Loan Document (including exercising any rights of setoff) without first obtaining the prior written consent of Collateral Agent or, the Required Lenders, it being the intent of Lenders that any such action to protect or enforce rights under any Loan Document shall be taken in concert and at the direction or with the consent of Collateral Agent or, the Required Lenders.

11. Erroneous Payments.

(a) Each Lender hereby agrees that (i) if the Collateral Agent notifies such Lender that the Collateral Agent has determined in its sole discretion that any funds received by such Lender from the Collateral Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to the Collateral Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to the Collateral Agent in same day funds at the greater of the federal funds rate and a rate determined by the Collateral Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Collateral Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of the Collateral Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.

(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from the Collateral Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by the Collateral Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Collateral Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify the Collateral Agent of such occurrence and, upon demand from the Collateral Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to the Collateral Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to the Collateral Agent in same day funds at the greater of the federal funds rate and a rate determined by the Collateral Agent in accordance with banking industry rules on interbank compensation from time to time in effect.

(c) Each Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Collateral Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Loan Parties.

(d) This Section 11 shall not apply to the disbursement of any proceeds of a Loan to or at the express direction of the Borrower, and no Erroneous Payment shall constitute, create, increase or otherwise alter any Obligations of the Loan Parties under the Loan Documents or otherwise. An Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Loan Parties; provided that this Section 11 shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Loan Parties relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Collateral Agent.

(e) Each party’s obligations under this Section 11 shall survive the resignation or replacement of the Collateral Agent, the termination of the Term Loan Commitments or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.

EXHIBIT C

Loan Payment Request Form

Fax To: (212) 993-1698

Date: _____________________

Loan Payment:

VAPOTHERM, INC.

From Account #________________________________ To Account #__________________________________________________

(Deposit Account #) (Loan Account #)

Principal $____________________________________ and/or Interest $________________________________________________

Authorized Signature: Phone Number:

Print Name/Title:

Loan Advance:

Complete Outgoing Wire Request section below if all or a portion of the funds from this loan advance are for an outgoing wire.

From Account #________________________________ To Account #__________________________________________________

(Loan Account #) (Deposit Account #)

Amount of Advance $___________________________

All of each Loan Party’s representations and warranties in the Loan and Security Agreement are true and correct in all material respects on the date of the request for an advance; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true and correct all material respects as of such date:

Authorized Signature: Phone Number:

Print Name/Title:

Outgoing Wire Request:

Complete only if all or a portion of funds from the loan advance above is to be wired.

Beneficiary Name: _____________________________ Amount of Wire: $

Beneficiary Bank: _____________________________ Account Number:

City and State:

Beneficiary Bank Transit (ABA) #: Beneficiary Bank Code (Swift, Sort, Chip, etc.):

(For International Wire Only)

Intermediary Bank: Transit (ABA) #:

For Further Credit to:

Special Instruction:

By signing below, I (we) acknowledge and agree that my (our) funds transfer request shall be processed in accordance with and subject to the terms and conditions set forth in the agreements(s) covering funds transfer service(s), which agreements(s) were previously received and executed by me (us).

Authorized Signature: ___________________________ 2^nd Signature (if required): _______________________________________

Print Name/Title: ______________________________ Print Name/Title: ______________________________________________

Telephone #: Telephone #:

EXHIBIT D

Compliance Certificate

TO:	SLR INVESTMENT CORP., as Collateral Agent and Lender

FROM:	VAPOTHERM, INC.

The undersigned authorized officer (“Officer”) of VAPOTHERM, INC. (“Borrower”), in his capacity as an authorized officer of the Borrower and not in his individual capacity, hereby certifies that in accordance with the terms and conditions of the Loan and Security Agreement dated as of February 18, 2022 by and among Borrower, the Guarantors, Collateral Agent, and the Lenders from time to time party thereto (the “Loan Agreement;” capitalized terms used but not otherwise defined herein shall have the meanings given them in the Loan Agreement),

(a) There are no existing defaults or Events of Default, except as noted below;

(b) Except as noted below, all representations and warranties of Borrower stated in the Loan Documents are true and correct in all material respects on this date; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true and correct in all material respects as of such date.

(c) Borrower, and each of Borrower’s Subsidiaries, has timely filed all required Tax returns and reports, Borrower, and each of Borrower’s Subsidiaries, has timely paid all foreign, federal, state, and material local, Taxes, owed by Borrower, or Subsidiary, except as otherwise permitted pursuant to the terms of Section 5.8 of the Loan Agreement;

(d) Except as noted below, no Liens have been levied or claims made against Borrower or any of its Subsidiaries relating to unpaid employee payroll or benefits of which Borrower has not previously provided written notification to Collateral Agent and the Lenders; and

(e) Attached is an updated Perfection Certificate.¹

Attached are the required documents, if any, supporting our certification(s). The Officer, on behalf of Borrower, further certifies that the attached financial statements are prepared in accordance with Generally Accepted Accounting Principles (GAAP) and are consistently applied from one period to the next except as explained in an accompanying letter or footnotes and except, in the case of unaudited financial statements, for the absence of footnotes and subject to year‑end audit adjustments as to the interim financial statements.

Please indicate compliance status since the last Compliance Certificate by circling Yes, No, or N/A under “Complies” column.

	Reporting Covenant	Requirement	Actual	Complies
1)	Financial statements	Monthly within 30 days		Yes	No	N/A
2)	Annual (CPA Audited) statements	Within 90 days after FYE		Yes	No	N/A
3)	Annual Financial Projections/Budget (prepared on a monthly basis)	Annually (within earlier 10 days of approval or February 28), and when revised		Yes	No	N/A
4)	8‑K, 10‑K and 10‑Q Filings	Within 5 days of filing		Yes	No	N/A
5)	Compliance Certificate	Monthly within 30 days		Yes	No	N/A
6)	Total amount of Borrower’s and Guarantor’s cash and Cash Equivalents at the last day of the measurement period		$________			N/A
7)	Total amount of Borrower’s Subsidiaries’ (other than Guarantors) cash and Cash Equivalents at the last day of the measurement period		$________			N/A

_____________________________

1 To be delivered with the financial statements for hte third month of any calendar quarter.

Deposit and Securities Accounts

(Please list all accounts; attach separate sheet if additional space needed)

	Institution Name	Account Number	New Account?		Account Control Agreement in place?
1)			Yes	No	Yes	No
2)			Yes	No	Yes	No
3)			Yes	No	Yes	No
4)			Yes	No	Yes	No

Financial Covenants

Minimum Net Product Revenue:

Minimum Net Product Revenue

(period ending __________)

(A) Actual Net Product

Revenue $___________

(B) Minimum Net Product Revenue per

Section 7.13(a) $____________

Complies with

Minimum Net

Product Revenue (Is

(A) greater than or

equal to (B))?

Yes (in compliance) No (not in compliance) (N/A)

Minimum Liquidity:

Minimum Liquidity

Covenant

Qualified Cash

A/P not paid within 90

days from invoice date

Complies with

Minimum Liquidity

Requirement (Is (A)

minus (B) greater than

$5 million)?

Yes (in compliance) No (not in compliance) (N/A)

Other Matters

1)	Have there been any changes in Key Persons since the last Compliance Certificate?	Yes	No

2)	Have there been any transfers/sales/disposals/retirement of Collateral or IP prohibited by the Loan Agreement?	Yes	No

3)	Have there been any new or pending claims or causes of action against Borrower that involve more than Five Hundred Thousand Dollars ($500,000.00)?	Yes	No

4)	Have there been any amendments of or other changes to the respective Operating Documents of Borrower or any Guarantor? If yes, provide copies of any such amendments or changes with this Compliance Certificate.	Yes	No

5)	Has Borrower or any Subsidiary entered into or amended any Material Agreement? If yes, please explain and provide a copy of the Material Agreement(s) and/or amendment(s).	Yes	No

6)	Has Borrower provided the Collateral Agent with all notices required to be delivered under Sections 6.2(a) and 6.2(b) of the Loan Agreement?	Yes	No

Exceptions

Please explain any exceptions with respect to the certification above: (If no exceptions exist, state “No exceptions.” Attach separate sheet if additional space needed.)

VAPOTHERM, INC.

By:

Name:

Title:

Date:

COLLATERAL AGENT USE ONLY

Received by:	Date:

Verified by:	Date:

Compliance Status: Yes No

Exhibit E

CORPORATE BORROWING CERTIFICATE

Borrower:	VAPOTHERM, INC.	Date: February 18, 2022
Lender:	SLR INVESTMENT CORP., as Collateral Agent and Lender

I hereby certify as follows, as of the date set forth above:

1. I am the Secretary, Assistant Secretary or other officer of Borrower. My title is as set forth below.

2. Borrower’s exact legal name is set forth above. Borrower is a corporation existing under the laws of the State of Delaware.

3. Attached hereto as Exhibit A and Exhibit B, respectively, are true, correct and complete copies of (i) Borrower’s Certificate of Incorporation (including amendments), as filed with the Secretary of State of the state in which Borrower is incorporated as set forth in paragraph 2 above; and (ii) Borrower’s Bylaws. Neither such Certificate of Incorporation nor such Bylaws have been amended, annulled, rescinded, revoked or supplemented, and such Certificate of Incorporation and such Bylaws remain in full force and effect as of the date hereof.

4. The following resolutions were duly and validly adopted by Borrower’s board of directors at a duly held meeting of such directors (or pursuant to a unanimous written consent or other authorized corporate action). Such resolutions are in full force and effect as of the date hereof and have not been in any way modified, repealed, rescinded, amended or revoked, and the Lenders may rely on them until each Lender receives written notice of revocation from Borrower.

[Balance of Page Intentionally Left Blank]

RESOLVED, that any one of the following officers or employees of Borrower, whose names, titles and signatures are below, may act on behalf of Borrower:

Name	Title	Signature	Authorized to Add or Remove Signatories
			☐
			☐
			☐
			☐

RESOLVED FURTHER, that any one of the persons designated above with a checked box beside his or her name may, from time to time, add or remove any individuals to and from the above list of persons authorized to act on behalf of Borrower.

RESOLVED FURTHER, that such individuals may, on behalf of Borrower:

Borrow Money. Borrow money from the Lenders.
Execute Loan Documents. Execute any loan documents any Lender requires.
Grant Security. Grant Collateral Agent a security interest in any of Borrower’s assets.
Negotiate Items. Negotiate or discount all drafts, trade acceptances, promissory notes, or other indebtedness in which Borrower has an interest and receive cash or otherwise use the proceeds.
Pay Fees. Pay fees under the Loan Agreement or any other Loan Document.
Further Acts. Designate other individuals to request advances, pay fees and costs and execute other documents or agreements (including documents or agreement that waive Borrower’s right to a jury trial) they believe to be necessary to effectuate such resolutions.

RESOLVED FURTHER, that all acts authorized by the above resolutions and any prior acts relating thereto are ratified.

[Balance of Page Intentionally Left Blank]

5. The persons listed above are Borrower’s officers or employees with their titles and signatures shown next to their names.

		By:
		Name:
		Title:

*** If the Secretary, Assistant Secretary or other certifying officer executing above is designated by the resolutions set forth in paragraph 4 as one of the authorized signing officers, this Certificate must also be signed by a second authorized officer or director of Borrower.

I, the __________________________ of Borrower, hereby certify as to paragraphs 1 through 5 above, as of the date set forth above.

[print title]

		By:
		Name:
		Title:

[Signature Page to Corporate Borrowing Certificate]

EXHIBIT A

Certificate of Incorporation (including amendments)

[see attached]

EXHIBIT B

Bylaws

[see attached]

EXHIBIT F

ACH LETTER

SLR INVESTMENT CORP.

500 Park Avenue, 3rd Floor

New York, NY 10022

Attention: Anthony Storino

Fax: (212) 993-1698

Email: astorino@slrcp.com

Re: Loan and Security Agreement dated as of February 18, 2022 (the “Agreement”) by and among VAPOTHERM, INC. (“Borrower”), SLR Investment Corp. (“SLR”), as collateral agent (in such capacity, “Collateral Agent”) and the Lenders listed on Schedule 1.1 thereof or otherwise a party thereto from time to time, including SLR in its capacity as a Lender (each a “Lender” and collectively, the “Lenders”). Capitalized terms used but not otherwise defined herein shall have the meanings given them under the Agreement.

In connection with the above referenced Agreement, the Borrower hereby authorizes the Collateral Agent to, at its discretion and with prior notice of at least one (1) Business Day, initiate debit entries to the Borrower’s account indicated below (i) on each payment date of all Obligations then due and owing, (ii) at any time any payment due and owing with respect to Lenders’ Expenses, and (iii) upon an Event of Default, any other Obligations outstanding, in each case pursuant to Section 2.3(e) of the Agreement. The Borrower authorizes the depository institution named below to debit to such account.

DEPOSITORY NAME

BRANCH

CITY

STATE AND ZIP CODE

TRANSIT/ABA NUMBER

ACCOUNT NUMBER

This authority will remain in full force and effect so long as any amounts are due under the Agreement.

[Signature page to follow]

VAPOTHERM, INC.

By: _________________________________________

Title: ________________________________________

Date: ________________________________________

Exhibit G

Form of Secured Promissory Note

SECURED PROMISSORY NOTE
(Term [A][B] Loan)

$____________________

Dated: [DATE]

FOR VALUE RECEIVED, the undersigned, Vapotherm, Inc., a Delaware corporation with offices located at 100 Domain Drive, Exeter, NH 03833 (“Borrower”) HEREBY PROMISES TO PAY SLR Investment Corp. (“Lender”) (or its registered assigns) the principal amount of [___________]DOLLARS ($______________) or such lesser amount as shall equal the outstanding principal balance of the Term [A][B] Loan made to Borrower by Lender, plus interest on the aggregate unpaid principal amount of such Term [A][B] Loan, at the rates and in accordance with the terms of the Loan and Security Agreement dated as of February 18, 2022 by and among Borrower, the Guarantors, Lender, SLR Investment Corp., as Collateral Agent, and the other Lenders from time to time party thereto (as amended, restated, supplemented or otherwise modified from time to time, the “Loan Agreement”). If not sooner paid, the entire principal amount and all accrued and unpaid interest hereunder shall be due and payable on the Maturity Date as set forth in the Loan Agreement. Any capitalized term not otherwise defined herein shall have the meaning attributed to such term in the Loan Agreement.

Principal, interest and all other amounts due with respect to the Term [A][B] Loan, are payable in lawful money of the United States of America to Lender as set forth in the Loan Agreement and this Secured Promissory Note (this “Note”). The principal amount of this Note and the interest rate applicable thereto, and all payments made with respect thereto, shall be recorded by Lender and, prior to any transfer hereof, endorsed on the grid attached hereto which is part of this Note.

The Loan Agreement, among other things, (a) provides for the making of a secured Term [A][B] Loan by Lender to Borrower, and (b) contains provisions for acceleration of the maturity hereof upon the happening of certain stated events.

This Note may not be prepaid except as set forth in Section 2.2(c), Section 2.2(d) or Section 6.5 of the Loan Agreement.

This Note and the obligation of Borrower to repay the unpaid principal amount of the Term [A][B] Loan, interest on the Term [A][B] Loan and all other amounts due Lender under the Loan Agreement is secured under the Loan Agreement.

Presentment for payment, demand, notice of protest and all other demands and notices of any kind in connection with the execution, delivery, performance and enforcement of this Note are hereby waived.

This Note shall be governed by, and construed and interpreted in accordance with, the laws of the State of New York.

The ownership of an interest in this Note shall be registered on a record of ownership maintained by Lender or its agent. Notwithstanding anything else in this Note to the contrary, the right to the principal of, and stated interest on, this Note may be transferred only if the transfer (a) is registered on such record of ownership and the transferee is identified as the owner of an interest in the obligation and (b) is permitted under Section 12.2 of the Loan Agreement. Borrower shall be entitled to treat the registered holder of this Note (as recorded on such record of ownership) as the owner in fact thereof for all purposes and shall not be bound to recognize any equitable or other claim to or interest in this Note on the part of any other person or entity.

[Balance of Page Intentionally Left Blank]

IN WITNESS WHEREOF, Borrower has caused this Note to be duly executed by one of its officers thereunto duly authorized on the date hereof.

		BORROWER:

		VAPOTHERM, INC.


		By
		Name:
		Title:

LOAN AND PAYMENTS OF PRINCIPAL

Date	Interest Rate	Principal Amount	Scheduled Payment Amount	Notation By

Exhibit H

Form of Warrant

[see attached]

Exhibit I

Taxes; Increased Costs.

1. Defined Terms. For purposes of this Exhibit I:

(a)“ Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

(b)“ Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (i) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (A) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (B) that are Other Connection Taxes, (ii) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Term Loan or Term Loan Commitment pursuant to a law in effect on the date on which (A) such Lender acquires such interest in the Term Loan or Term Commitment or (B) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2 or Section 4 of this Exhibit I, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (iii) Taxes attributable to such Recipient’s failure to comply with Section 7 of this Exhibit I and (iv) any withholding Taxes imposed under FATCA.

(c)“ FATCA” means Sections 1471 through 1474 of the Internal Revenue Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code, and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Internal Revenue Code.

(d)“ Foreign Lender” means a Lender that is not a U.S. Person.

(e)“ Indemnified Taxes” means (i) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (ii) to the extent not otherwise described in clause (i), Other Taxes.

(f)“ Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Term Loan or Loan Document).

(g)“ Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment.

(h)“ Recipient” means Collateral Agent or any Lender, as applicable.

(i)“ U.S. Person” means any Person that is a “United States person” as defined in Section 7701(a)(30) of the Internal Revenue Code.

(j)“ Withholding Agent” means Borrower and Collateral Agent.

2. Payments Free of Taxes. Any and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable law. If any applicable law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 2 or Section 4 of this Exhibit I) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.

3. Payment of Other Taxes by Loan Parties. The Loan Parties shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of Collateral Agent timely reimburse it for the payment of, any Other Taxes.

4. Indemnification by Loan Parties. The Loan Parties shall indemnify each Recipient, within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under Section 2 of this Exhibit I or this Section 4) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to Borrower by a Lender (with a copy to Collateral Agent), or by Collateral Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.

5. Indemnification by the Lenders. Each Lender shall severally indemnify Collateral Agent, within 10 days after demand therefor, for (a) any Indemnified Taxes attributable to such Lender (but only to the extent that any Loan Party has not already indemnified Collateral Agent for such Indemnified Taxes and without limiting the obligation of any Loan Party to do so), (b) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 12.1 of the Agreement relating to the maintenance of a Participant Register and (c) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by Collateral Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by Collateral Agent shall be conclusive absent manifest error. Each Lender hereby authorizes Collateral Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by Collateral Agent to the Lender from any other source against any amount due to Collateral Agent under this Section 5.

6. Evidence of Payments. As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority pursuant to the provisions of this Exhibit I, the Loan Party shall deliver to Collateral Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to Collateral Agent.

7. Status of Lenders.

(a) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to Borrower and Collateral Agent, at the time or times reasonably requested by Borrower or Collateral Agent, such properly completed and executed documentation reasonably requested by Borrower or Collateral Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by Borrower or Collateral Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by Borrower or Collateral Agent as will enable Borrower or Collateral Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Sections 7(b)(i), 7(b)(ii) and 7(b)(iv) of this Exhibit I) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.

(b) Without limiting the generality of the foregoing, in the event that Borrower is a U.S. Person,

(i) any Lender that is a U.S. Person shall deliver to Borrower and Collateral Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of Borrower or Collateral Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;

(ii) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to Borrower and Collateral Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of Borrower or Collateral Agent), whichever of the following is applicable:

(A)

in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

(B)

executed copies of IRS Form W-8ECI;

(C)

in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Internal Revenue Code, (x) a certificate, in form and substance reasonably acceptable to Borrower and Collateral Agent, to the effect that such Foreign Lender (or other applicable Person) is not a “bank” within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, a “10 percent shareholder” of Borrower within the meaning of Section 871(h)(3)(B) of the Internal Revenue Code, or a “controlled foreign corporation” related to Borrower as described in Section 881(c)(3)(C) of the Internal Revenue Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E; or

(D)

to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate on behalf of each such direct and indirect partner;

(iii) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to Borrower and Collateral Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of Borrower or Collateral Agent), executed copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit Borrower or Collateral Agent to determine the withholding or deduction required to be made; and

(iv) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as applicable), such Lender shall deliver to Borrower and Collateral Agent at the time or times prescribed by law and at such time or times reasonably requested by Borrower or Collateral Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by Borrower or Collateral Agent as may be necessary for Borrower and Collateral Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount, if any, to deduct and withhold from such payment. Solely for purposes of this clause (iv), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

(v) Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify Borrower and Collateral Agent in writing of its legal inability to do so.

8. Treatment of Certain Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to the provisions of this Exhibit I (including by the payment of additional amounts pursuant to the provisions of this Exhibit I), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under the provisions of this Exhibit I with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this Section 8 (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this Section 8, in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this Section 8 the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This Section 8 shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.

9. Increased Costs. If any change in applicable law shall subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (ii) through (iv) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, and the result shall be to increase the cost to such Recipient of making, converting to, continuing or maintaining any Term Loan or of maintaining its obligation to make any such Term Loan, or to reduce the amount of any sum received or receivable by such Recipient (whether of principal, interest or any other amount), then, upon the request of such Recipient, the applicable Loan Party will pay to such Recipient such additional amount or amounts as will compensate such Recipient for such additional costs incurred or reduction suffered.

10. Survival. Each party’s obligations under the provisions of this Exhibit I shall survive the resignation or replacement of Collateral Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Term Loan Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.

ANNEX B

Conformed Copy
through Amendment No. 8

LOAN AND SECURITY AGREEMENT

1. DEFINITIONS AND OTHER TERMS

1.2 Section References. Any section, subsection, schedule or exhibit references are to this Agreement unless otherwise specified.

1.4 Definitions. The following terms are defined in the Sections or subsections referenced opposite such terms:

“Agreement”	Preamble
“Allocable Amount”	Section 13.7(b)
“Approved Lender”	Section 12.1
“Borrower”	Preamble
“Claims”	Section 12.2

“Collateral Agent”	Preamble
“Collateral Agent Report”	Exhibit B, Section 5
“Communications”	Section 10
“Connection Income Taxes”	Exhibit I, Section 1
“Default Rate”	Section 2.3(b)
“Effective Date”	Preamble
“Event of Default”	Section 8
“Excluded Accounts”	Section 6.6(a)
“Excluded Taxes”	Exhibit I, Section 1
“FATCA”	Exhibit I, Section 1
“Guarantor Payment”	Section 13.7(a)
“Indemnified Person”	Section 12.2
“Indemnified Taxes”	Section 2.5(a)
“Lender” and “Lenders”	Preamble
“Lender Transfer”	Section 12.1
“Minimum Liquidity Requirement”	Section 7.13(b)
“New Subsidiary”	Section 6.10
“Non-Funding Lender”	Exhibit B, Section 10(c)(ii)
“Open Source Licenses”	Section 5.2(f)
“Other Connection Taxes”	Exhibit I, Section 1
“Other Lender”	Exhibit B, Section 10(c)(ii)
“Other Taxes”	Exhibit I, Section 1
“Perfection Certificate” and “Perfection Certificates”	Section 5.1
“Recipient”	Exhibit I, Section 1
“Secured Promissory Note”	Section 2.6
“SLR”	Preamble
“Taxes”	Section 2.5(a)
“Term A Loan”	Section 2.2(a~~)(i~~)
“Term Loan”	Section 2.2(a~~)(ii~~)
“Term B Loan”	~~Section 2.2(a)(ii)~~
“Transfer”	Section 7.1

In addition to the terms defined elsewhere in this Agreement, the following terms have the following meanings:

“1-Month CME Term SOFR” is the 1-month CME Term SOFR reference rate as published by the CME Term SOFR Administrator on the CME Term SOFR Administrator’s Website.

“Account Debtor” is any “account debtor” as defined in the Code with such additions to such term as may hereafter be made under the Code.

“ACH Letter” is ACH debit authorization in the form of Exhibit F hereto.

“Amortization Date” is March 1, 2026; provided that if as of December 31, 2025, Borrower achieves Net Product Revenue greater than or equal to Sixty-Eight Million Dollars ($68,000,000.00), measured on a trailing six-month basis, calculated consistently with the methodology used in the Projections and subject to the reasonable verification by Collateral Agent (including supporting documentation reasonably requested by Collateral Agent), then, at Borrower’s written election to Collateral Agent on or prior to February 1, 2026, there shall be no Amortizationfor each Term A Loan, the Maturity Date ~~hereunder~~.

“Amendment No. 2 Effective Date” means September 30, 2022.

“Amendment No. 3 Effective Date” means November 22, 2022.

“Amendment No. 4 Effective Date” has the meaning assigned to such term in that certain Amendment No. 4 to Loan and Security Agreement, dated as of February 10, 2023.

“Amendment No. 7 Effective Date” means March 26, 2024.

“Amendment No. 8 Execution Date” has the meaning assigned to such term in that certain Amendment No. 8 to Loan and Security Agreement, dated as of June 17, 2024.

“Applicable Rate” means a per annum rate of interest equal to, as of ~~June 1, 2024 (1)~~the Merger Amendment No. 8 Effective Date, to for Term A Loans ~~the sum of~~an amount equal to (i) ~~2.30~~6.00%, plus, (ii) the Benchmark in effect from time to time~~, plus (b) 7% of PIK Interest and (2) for Term B Loans, the sum of (i) the Benchmark in effect from time to time, (ii) 8.30% and (iii) 0.10%~~. Notwithstanding the foregoing, upon the occurrence of a Benchmark Transition Event, Collateral Agent may, in good faith and in consultation with the Borrower amend this Agreement to replace the then-current Benchmark in a manner consistent with other loans in Collateral Agent’s portfolio so that such changes result in a substantially similar interest rate to the interest rate in effect immediately prior to the effectiveness of such Benchmark, and any such amendment shall become effective at 5:00 p.m. New York time on the third Business Day after Collateral Agent has notified Borrower of such amendment. Any determination, decision or election that may be made by Collateral Agent pursuant hereto will be conclusive and binding absent manifest error and may be made in Collateral Agent’s sole discretion and without consent from any other party.

“Benchmark” is, initially, the 1-Month CME Term SOFR plus the SOFR Adjustment; provided that the Benchmark shall not be less than 4.50% for any Term A Loan; provided further, that if a Benchmark Transition Event has occurred with respect to the 1-Month CME Term SOFR or the then-current Benchmark, then “Benchmark” is the applicable replacement rate that has replaced the immediately preceding benchmark rate pursuant to the defined term “Applicable Rate”.