Exhibit 2.1

ASSET PURCHASE AGREEMENT

This Asset Purchase Agreement (this “Agreement”) dated July 7, 2025, by and between XTANT MEDICAL HOLDINGS, INC., a Delaware corporation (the “Xtant”), SURGALIGN SPV, INC., a Delaware corporation, (“Surgalign” and together with Xtant, the “Company Group”), and COMPANION SPINE, LLC, a Delaware limited liability company, or its Affiliate designee (“Buyer”). The Company Group and Buyer are referred to in this Agreement individually as a “Party” and collectively as the “Parties.”

WHEREAS, the Company Group and its Affiliates are engaged in the Coflex Business in the United States (the “Acquired Business”), and hold the Fourth Dimension Spine Assets;

WHEREAS, the Parties are simultaneously herewith entering into an equity purchase agreement (the “International Purchase Agreement”) for the purchase of the equity of PARADIGM SPINE GMBH, a German Gesellschaft mit beschränkter Haftung, which, together with its Affiliates, is engaged in the Coflex Business outside of the United States as well as the design, manufacture, development, commercialization, or distribution of the “Hybrid Performance System™ 2.0” spinal fixation systems and dynamic stabilization systems (the “OUS Coflex Business”); and

WHEREAS, the Company Group wishes to sell and assign to Buyer, and Buyer wishes to purchase and assume from the Company Group, on the terms and subject to the conditions set forth in this Agreement, certain assets and liabilities of the Company Group used in the operation of, or related to, the Acquired Business.

NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

ARTICLE I
DEFINITIONS

The following terms have the meanings specified or referred to in this Article I:

“$” means the lawful currency of the United States.

“Acquired Assets” has the meaning set forth in Section 2.1.

“Acquired Business” has the meaning set forth in Recitals.

“Acquired Contracts” has the meaning set forth in Section 2.1(c).

“Acquired Intellectual Property” has the meaning set forth in Section 2.1(a).

“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, investigations, notice of violation, proceeding, litigation, citation, summons or subpoena of any nature, civil, criminal, administrative, regulatory or otherwise, whether at Law or in equity.

“Additional Financing Periods” has the meaning set forth in Section 6.10(c).

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

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

“Alternative Transaction” has the meaning set forth in Section 6.6(a).

“Assignment and Assumption Agreement” has the meaning set forth in Section 3.4(c).

“Assumed Liabilities” has the meaning set forth in Section 2.3.

“Belgrade Facility” has the meaning set forth in Section 3.3(b).

“Bills of Sale” has the meaning set forth in Section 3.4(b).

“Business Contracts” has the meaning set forth in Section 4.8(a).

“Business Day” means any day except Saturday, Sunday or any other day on which commercial banks located in New York, New York, are authorized or required by Law to be closed for business.

“Business Employees” has the meaning set forth in Section 4.18(a).

“Business Permits” has the meaning set forth in Section 4.16.

“Buyer” has the meaning set forth in the preamble.

“Buyer Fundamental Representations” has the meaning set forth in Section 7.3(a).

“Buyer Indemnitees” has the meaning set forth in Section 9.2.

“Cap” has the meaning set forth in Section 9.4(a).

“Claim Resolution Period” has the meaning set forth in Section 9.6.

“Claim Review Period” has the meaning set forth in Section 9.6.

“Closing” has the meaning set forth in Section 3.1.

“Closing Cash Payment” has the meaning set forth in Section 3.2(a)(ii).

“Closing Date” has the meaning set forth in Section 3.1.

“Closing Inventory Adjustment Amount” means the dollar amount, if any, by which the Target Inventory Valuation exceeds the Closing Inventory Valuation.

“Closing Inventory Valuation” has the meaning set forth in Section 3.3(c).

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

“Coflex Business” means the design, manufacture, development, commercialization, or distribution of the “Coflex” and “Cofix” spinal fixation systems and dynamic stabilization systems.

“Company Group” has the meaning set forth in the preamble.

“Company Group Fundamental Representations” has the meaning set forth in Section 7.2(a).

“Company Group Indemnitees” has the meaning set forth in Section 9.3.

“Company Group’s Knowledge” or any other similar knowledge qualification, means the actual knowledge of Sean Browne, Scott Neils, Mark Schallenberger, Robert Housler, Maddie Gonyea, and Rebecca Lennemann including knowledge that would be obtained upon reasonable inquiry into the fact or matter represented or warranted.

“Confidential Information” has the meaning set forth in Section 6.9(c).

“Consigned Inventory Facilities” has the meaning set forth in Section 3.3(b).

“Contracts” means all contracts, leases, deeds, mortgages, licenses, instruments, notes, commitments, undertakings, indentures, purchase order, work order, statement of work, commitment, assignment, certificate, option, joint ventures and all other agreements, commitments and binding arrangements, whether written or oral, to which a Person is a party or is otherwise bound.

“Copyrights” means all copyrights, copyright registrations and copyright applications, copyrightable works and all other corresponding rights.

“Deductible” has the meaning set forth in Section 9.4(a).

“Direct Claim” has the meaning set forth in Section 9.6.

“Disclosure Schedules” means the Disclosure Schedules delivered by the Company Group concurrently with the execution and delivery of this Agreement.

“Encumbrance” means any charge, claim, community property interest, pledge, condition, equitable interest, lien (statutory or other), option, security interest, mortgage, easement, encroachment, right of way, right of first refusal, limitation on transfer, use or assignment, or restriction of any kind, including any restriction on use, voting, transfer, receipt of income or exercise of any other attribute of ownership.

“Enforceability Exceptions” has the meaning set forth in Section 4.2.

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

“ERISA Affiliate” means any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company Group or any Affiliate of the Company Group as of such date, each as defined under Section 414 of the Code.

“Event” means any individual or set of existences, events, developments, omissions, situations, occurrences, circumstances, facts or takings.

“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

“Excluded Assets” has the meaning set forth in Section 2.2.

“Excluded Liabilities” has the meaning set forth in Section 2.4.

“Financial Statements” has the meaning set forth in Section 4.4(a).

“Financing” has the meaning set forth in Section 6.10(a).

“First Additional Financing Period” has the meaning set forth in Section 6.10(c).

“First Subsequent Deposit” has the meaning set forth in Section 6.10(c).

“Fourth Dimension Spine Acquisition” has the meaning set forth in Section 2.1(m).

“Fourth Dimension Spine Assets” has the meaning set forth in Section 2.1(m).

“Fourth Dimension Spine Systems” has the meaning set forth in Section 2.1(m).

“Fraud” means an intentional misrepresentation with respect to the representations and warranties expressly set forth in Article IV (with respect to the Company Group) or Article V (with respect to Buyer) that constitutes common law fraud (excluding constructive fraud) under the laws of the State of Delaware.

“Fundamental Representations” has the meaning set forth in Section 7.3(a).

“GAAP” means generally accepted accounting principles as in effect in the United States from time to time.

“Governmental Authority” means any federal, state, provincial, municipal, local or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority, or any arbitrator, court or tribunal of competent jurisdiction.

“Governmental Order” means any order, writ, judgment, injunction, decree, stipulation, determination or award entered by or with any Governmental Authority.

“Indemnified Party” has the meaning set forth in Section 9.5(a).

“Indemnifying Party” has the meaning set forth in Section 9.5(a).

“Initial Financing Period” has the meaning set forth in Section 6.10(c).

“Intellectual Property” means all of the following anywhere in the world and all legal rights, title or interest in, under or in respect of the following arising under Law, whether or not filed, perfected, registered or recorded and whether now or later existing, filed, issued or acquired, including all renewals, (a) Patents, (b) Copyrights, (c) Trademarks, (d) Software, (e) all mask works, mask work registrations and mask work applications and all other corresponding rights, (f) all inventions (whether patentable or unpatentable and whether or not reduced to practice), know how, technology, technical data, (g) Trade Secrets, (h) all databases and data collections, (i) all other proprietary rights (including moral rights, rights related to social media accounts or information (including likes, subscribers or members), rights of personality, identity or privacy), (j) all copies and tangible embodiments of any of the foregoing (in whatever form or medium) and (k) rights to sue for past, present, and future infringement of the foregoing rights.

“Intellectual Property Assignment Agreement” has the meaning set forth in Section 3.4(d).

“Intellectual Property License Agreement” means a Contract granting or obtaining any right to use or practice any rights under any Intellectual Property to which the Company Group or any of its Affiliates is a party or otherwise bound (whether as grantor or grantee or recipient of such right or otherwise) and which exclusively relates to the Acquired Business.

“Interim Period” has the meaning set forth in the Section 6.1.

“International Purchase Agreement” has the meaning set forth in the Recitals.

“Inventory” has the meaning set forth in Section 2.1(e).

“Inventory Statement” has the meaning set forth in Section 3.3(a).

“Latest Financial Date” has the meaning set forth in Section 4.4(a).

“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement or rule of law of any Governmental Authority.

“Liabilities” means any liability, obligation, indebtedness, debt, deficiency, interest, Tax, penalty, fine, claim, demand, judgment, cause of action, or other loss (including loss of benefit or relief), cost or expense of any kind or nature whatsoever, whether known or unknown, suspected or unsuspected, asserted or unasserted, absolute or contingent, accrued or unaccrued, liquidated or unliquidated, whether or not foreseeable, and whether due or become due and regardless of when asserted.

“Litigation” has the meaning set forth in Section 4.17.

“Lookback Date” has the meaning set forth in Section 4.14.

“Losses” means any and all losses, claims, Liabilities, damages, fines, penalties, deficiencies, obligations, and costs and expenses of any kind or nature whatsoever, including, without limitation: (a) actual attorneys’, accountants’, consultants’, and other professionals’ fees; (b) costs and expenses incurred in connection with the investigation, defense, prosecution, resolution, or settlement of any actual or threatened Action, claim, demand, audit, or proceeding; and (c) costs and expenses incurred in enforcing any right to indemnification under this Agreement; provided, however, that the term “Losses” shall exclude any punitive or exemplary damages except to the extent actually awarded in a timely adjudicated or finally settled Third Party Claim.

“Material Adverse Effect” means any event, occurrence, fact, condition or change that is, or could reasonably be expected to become, individually or in the aggregate, materially adverse to (a) the Acquired Business and its results of operations, condition (financial or otherwise) or the Acquired Assets, or (b) the ability of the Company Group to consummate the transactions contemplated hereby on a timely basis; provided, however, that none of the following shall be taken into account in determining whether there has been a Material Adverse Effect: any adverse event, occurrence, fact, condition or change (whether short-term or long-term) arising from or relating to (i) general business or economic conditions, including such conditions related to the Acquired Business, (ii) national or international political or social conditions, including the engagement by the United States in hostilities, whether or not pursuant to the declaration of a national emergency or war, the occurrence of any military or terrorist attack upon the United States, or any of its territories, possessions, or diplomatic or consular offices or upon any military installation, equipment or personnel of the United States, or the announcement, proposal, adoption, implementation, or enforcement of any tariffs, trade sanctions, or similar actions by any Governmental Authority (or the public or market reaction thereto or the adverse effects resulting therefrom, including without limitation changes in customer or supplier behavior, increases in costs or reductions in demand), (iii) national or international emergency resulting from a pandemic or similar naturally occurring diseases or event, (iv) financial, banking, or securities markets (including any disruption thereof and any decline in the price of any security or any market index), (v) any changes in GAAP, (vi) changes in any Law or other binding directives issued by any Governmental Authority, (vii) acts of God, earthquakes, floods, hurricanes, tornadoes, or natural disasters, (viii) compliance with the requirements of this Agreement or the Transaction Documents, (ix) any action or omission which has been expressly requested or expressly approved by Buyer in writing, (x) changes, effects or circumstances arising out of the announcement or disclosure of the execution of this Agreement or the International Purchase Agreement or the announcement or disclosure of the transactions contemplated hereby or by the International Purchase Agreement, including losses or threatened losses of, and any adverse change in the relationship with, employees, customers, vendors, distributors, resellers, financing sources, licensors, licensees or other commercial relations of the Company Group or (xi) the failure of Buyer to timely approve a request by Xtant under Section 6.1(b) if the request is for an action that that the Company Group would take with respect to the Acquired Business in the Ordinary Course of Business; provided, further, however, that the exceptions in (i) – (vi) directly above shall only apply to the extent such event, occurrence, fact, condition or change does not, individually or in the aggregate, have a materially and adversely disproportionate impact on the Acquired Business or Acquired Assets, taken as a whole, compared to other Persons or businesses that operate in the same or similarly situated industries as the Acquired Business.

“Material Customers” has the meaning set forth in Section 4.9(a).

“Material Distributors” has the meaning set forth in Section 4.9(c).

“Material Suppliers” has the meaning set forth in Section 4.9(b).

“Missing Inventory” has the meaning set forth in Section 3.3(b).

“Non-Party Affiliates” has the meaning set forth in Section 10.11.

“Note” has the meaning set forth in Section 3.2(b)(iii).

“Offered Employees” has the meaning set forth in Section 6.13(a).

“Order” means any (a) order, judgment, injunction, edict, decree, ruling, pronouncement, determination, decision, opinion, verdict, sentence, subpoena, writ or award issued, made, entered, rendered or otherwise put into effect by or under the authority of any court, administrative agency or other Governmental Authority or any arbitrator or arbitration panel or (b) Contract with any Governmental Authority entered into in connection with any Proceeding.

“Ordinary Course of Business” means the ordinary course of business consistent in nature, scope and magnitude with the past practices of such Person in the operation of its business.

“Owned Intellectual Property” means any Intellectual Property that is owned by, or purported to be owned, by the Company Group or any of its Affiliates which exclusively relates to the Acquired Business.

“Patents” means all classes or types of patents including utility patents, utility models, design patents, invention certificates, reexaminations, reissues, extensions and renewals; and all applications (including provisional and nonprovisional applications), invention disclosures, originals, continuations, divisionals, continuations-in-part, and all rights or priority, anywhere in the world.

“Party” has the meaning set forth in the preamble.

“Payoff Letters” has the meaning set forth in Section 3.4(g).

“Permits” means all permits, licenses, franchises, approvals, consents, authorizations, registrations, exemptions, accreditations, certificates, variances and similar rights, including all applications therefor and all renewals, extensions, or modifications thereof and additions thereto.

“Permitted Encumbrances” has the meaning set forth in Section 3.4(h).

“Person” means an individual, corporation, limited liability company, general or limited partnership, association, trust, unincorporated organization, Governmental Authority, other entity or group (as defined in the Exchange Act).

“Post-Closing Inventory Count” has the meaning set forth in Section 3.3(b).

“Privacy Policies” means all Laws and policies relating to personal, personally-identifiable, sensitive or regulated information or the operation or security of any information technology assets

“Proceedings” means any action, arbitration, audit, hearing, investigation, litigation or suit (whether civil, criminal, administrative, or judicial, whether formal or informal, whether public or private) commenced, brought, conducted or heard by or before, any Governmental Authority or arbitrator.

“Purchase Price” has the meaning set forth in Section 3.2(a).

“Representatives” means, with respect to any Person, any director, officer, employee, accountant, auditor, legal counsel, financial advisor, consultant, financing source or other advisor, agent or representative of such Person or any of its Affiliates or other Person acting on behalf of such Person or any of its Affiliates.

“Required Consents” has the meaning set forth in Section 6.4.

“Requirement” has the meaning set forth in Section 3.8.

“Restricted Asset” has the meaning set forth in Section 3.8.

“Second Additional Financing Period” has the meaning set forth in Section 6.10(c).

“Second Subsequent Deposit” has the meaning set forth in Section 6.10(c).

“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

“Software” means computer software, programs, and data embodied in any digitized form, all versions, updates, corrections, enhancements, replacements and modifications thereof, and all related documentation, manuals, source codes and object codes, program files, data files, computer related data, field and data definitions and relationships, data definition specifications, data models, program and system logic, interfaces, program modules, routines, sub-routines, algorithms, program architecture, design concepts, system designs, program structure, sequence and organization, screen displays and report layouts, and all other material and documentation related to the said computer software, programs, and data, whether in machine-readable form, programming language or any other language or symbols, and whether stored, encoded recorded or written on disk, tape, film, memory, device, paper or other media of any nature or kind whatsoever.

“Solvent” means, with respect to any Person, that, as of any date of determination, on a consolidated basis, if applicable: (i) the fair value of such Person’s assets will exceeds all of its liabilities (including contingent liabilities) as of such date; (ii) such Person will not have, as of such date, an unreasonably small amount of capital for the business in which it is engaged, and (iii) such Person will be able to pay its debts as they become absolute and mature, in the ordinary course of business.

“Subsequent Deposits” has the meaning set forth in Section 6.10(c).

“Surgalign” has the meaning set forth in the preamble.

“Tangible Personal Property” has the meaning set forth in Section 2.1(d).

“Target Inventory Valuation” means the target value of the Inventory as of the Closing Date equal to (i) $450,000 minus (ii) the value of any Inventory of the Company Group that is purchased by Buyer, or any Affiliate of Buyer, between the date of this Agreement and the Closing Date, which value excludes any obsolete (with a remaining shelf life of less than six months), unsellable, damaged or expired items.

“Tax Return” means any return, declaration, report, claim for refund, information return or statement or other document relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof.

“Taxes” means all federal, state, local, foreign and other income, gross receipts, sales, use, production, ad valorem, transfer, franchise, registration, profits, license, lease, service, service use, withholding, payroll, employment, unemployment, estimated, excise, severance, environmental, stamp, occupation, premium, property (real or personal), real property gains, windfall profits, customs, duties or other taxes, fees, assessments or charges of any kind whatsoever, together with any interest, additions or penalties with respect thereto and any interest in respect of such additions or penalties.

“Taxing Authority” means the Internal Revenue Service and any other Governmental Authority having authority with respect to the determination, assessment, collection, enforcement or administration of any Tax and their respective successors, if any.

“Terminating Party” has the meaning set forth in Section 8.2(a).

“Termination Date” means (i) if Buyer has not exercised the First Additional Financing Period pursuant to Section 6.10(c), the expiration of the ten (10) Business Day period following the end of the Initial Financing Period, (ii) if Buyer has exercised the First Additional Financing Period but has not exercised the Second Additional Financing Period, in each case, pursuant to Section 6.10(c), the expiration of the ten (10) Business Day period following the end of the First Additional Financing Period, or (iii) if Buyer has exercised the Second Additional Financing Period pursuant to Section 6.10(c), the expiration of the ten (10) Business Day period following the end of the Second Additional Financing Period; provided, however, that in no event will the Termination Date be later than December 31, 2025.

“Third Party Claim” has the meaning set forth in Section 9.5(a).

“Third Party Intellectual Property” all items of Intellectual Property that are not Owned Intellectual Property which are used the Company Group in the conduct of the Acquired Business and that exclusively relate to the Acquired Business.

“Trade Secrets” means trade secrets, confidential or proprietary business information, manufacturing and production processes and techniques, algorithms, ratios, safety, data, product specifications, research and development information, records, reports, formulae, technology, plans, drawings, blueprints, programs, software, source code, financial, marketing and business data, pricing and cost information, business and marketing plans, advertising and promotional materials, customer, distributor, reseller and supplier lists and information, correspondence, records, and other documentation, and other proprietary information of every kind, in each case, to the extent it is not in the public domain.

“Trademarks” means all trade dress and trade names, logos, internet addresses and domain names, trademarks and service marks and related registrations and applications, including any intent to use applications, supplemental registrations and any renewals or extensions, all other indicia of commercial source or origin and all goodwill associated with any of the foregoing.

“Transaction Documents” means this Agreement, the Bills of Sale, the Assignment and Assumption Agreement, the Intellectual Property Assignment Agreement, the Transition Services Agreement, the Note, and any other agreement, instrument, certificate, or document executed and delivered by the parties in connection with the transactions contemplated hereby.

“Transferred Employee” has the meaning set forth in Section 6.13(a).

“Transition Services Agreement” has the meaning set forth in Section 3.4(e).

“Xtant” has the meaning set forth in the preamble.

ARTICLE II

ASSETS AND LIABILITIES

2.1 Acquired Assets. At Closing, the Company Group shall sell and deliver to Buyer, and Buyer shall purchase and accept from the Company Group, as applicable, all of the Company Group’s right, title, and interest in and to the following tangible and intangible assets (other than the Excluded Assets), in each case, free and clear of any Encumbrances (collectively, the “Acquired Assets”):

(a) all Owned Intellectual Property and all Third Party Intellectual Property (collectively, the “Acquired Intellectual Property”), including, but not limited to, all of the Owned Intellectual Property and Third Party Intellectual Property listed on Schedule 2.1(a);

(b) all research and development work product, including but not limited to, test protocols, reports, samples, and prototypes and design files, in each case, that are exclusively related to the Acquired Business or products sold in the conduct of the Acquired Business;

(c) (i) the Contracts pertaining to the sale or distribution of any products that are exclusively related to the Acquired Business since January 1, 2024, all of which are listed on Schedule 2.1(c)(i), and (ii) with respect to Contracts for the sale or distribution of any products sold in the conduct of both the Acquired Business since January 1, 2024 and any other existing business line of the Company Group not constituting the Acquired Business, all of which are listed on Schedule 2.1(c)(ii), only the portions of such Contracts that are exclusively related to the Acquired Business (the Contracts, or portions thereof, referenced in clauses (i) and (ii) of the foregoing, collectively, the “Acquired Contracts”);

(d) all equipment and other tangible personal property (excluding Inventory) held by the Company Group or its Affiliates with respect thereto, in each case, that are primarily related to the Acquired Business (the “Tangible Personal Property”), including, but not limited to, the Tangible Personal Property set forth on Schedule 2.1 (d);

(e) all inventory, finished goods, raw materials, work in progress, packaging, supplies, parts, and other inventories, in each case, that are primarily related to the Acquired Business, including but not limited to all implants and instruments that are primarily related to the Acquired Business (the “Inventory”);

(f) to the extent transferable, all third-party warranties and indemnities, in each case, that are primarily related to the Acquired Business or the Acquired Assets;

(g) to the extent transferable, all clinical publications, Copyrights, original study data, patient files, in each case, that are primarily related to the Acquired Business;

(h) to the extent transferable, all Permits owned, held or possessed by the Company Group which are exclusively related to Acquired Business, including but not limited to, all of the Permits listed on Schedule 2.1(h);

(i) to the extent transferable, all registrations, certifications, related history files, quality audits, and records of adverse events and serious adverse events, in each, that are exclusively related to the Acquired Business;

(j) originals, or where not available, copies, of all books and records, including books of account, ledgers and general, financial and accounting records, machinery and equipment maintenance files, customer lists, customer purchasing histories, price lists, distribution lists, supplier lists, production data, quality control records and procedures, customer complaints and inquiry files, research and development files, records and data, sales material and records, strategic plans, internal financial statements and marketing and promotional surveys, material and research, in each case, that are exclusively related to the Acquired Business or the Acquired Assets;

(k) all claims, causes of action, choses in action, rights of recovery and rights, whether choate or inchoate, known or unknown, contingent or noncontingent, of the Company Group and under any and all assignable or transferable warranties, in each case, to the extent arising from the operation of the Acquired Business following the Closing and that are exclusively related to the Acquired Business, the Acquired Assets or Assumed Liabilities;

(l) all insurance proceeds, or the rights thereto, to the extent attributable to any damage, loss, casualty, destruction, or other impairment of any Acquired Assets occurring prior to the Closing;

(m) all assets formerly held by Fourth Dimension Spine, LLC, a Delaware limited liability company, and acquired by the Company Group from Surgalign Spine Technologies, Inc. and/or Paradigm Spine, LLC (the “Fourth Dimension Spine Acquisition”), including without limitation such assets held by the Company Group related to the Orthobiome Pediatric Scoliosis System, the GSP Rib-Based System, the Diagnostic Blood Test System (such systems, collectively, the “Fourth Dimension Spine Systems”), and all related intellectual property, design history files, clinical data, drawings, plans, technical documentation, and other tangible or intangible assets, if any (such foregoing assets, as acquired by the Company Group pursuant to the Fourth Dimension Spine Acquisition, and currently held by the Company Group, collectively, the “Fourth Dimension Spine Assets”); and

(n) all goodwill relating to the Acquired Business or the Acquired Assets and the going concern value of the Acquired Business.

2.2 Excluded Assets. All assets of the Company Group that are not Acquired Assets, shall each be retained by the Company Group (collectively, the “Excluded Assets”). The Excluded Assets, include, but are not limited to, the following assets:

(a) all assets of the Company Group and its Affiliates not used, held for use in, or which do not relate to the Acquired Business or that do not meet the applicable standard set forth in the subsections of Section 2.1;

(b) any cash, cash equivalents, bank accounts, accounts receivable, or inter-company receivables;

(c) all Contracts, or portions thereof, that are not Acquired Contracts;

(d) all rights of the Company Group under this Agreement;

(e) all records relating to the organization and maintenance of the Company Group and its Affiliates as legal entities;

(f) the Company Group’s and its Affiliates’ financial and Tax records;

(g) all corporate seals, organizational documents, minute books, stock books, Tax Returns, books of account, or other records related to the corporate organization of the Company Group, and any other books and records the Company Group is prohibited from disclosing or transferring under applicable Law;

(h) all insurance policies of the Company Group;

(i) all Tax assets (including Tax refunds and prepayments); and

(j) all Employee Benefit Plans of the Company Group and assets attributable thereto.

2.3 Assumed Liabilities. Subject to the terms and conditions of this Agreement, at the Closing, Buyer shall assume only those Liabilities of the Company Group that arise out of or relate to the operation of the Acquired Business or the ownership or use of the Acquired Assets after the Closing Date (the “Assumed Liabilities”), including: (i) Liabilities of any Business Employees who are hired by Buyer (but excluding Labilities for wages, salaries, severance, bonuses, accrued paid time off, or other compensation or benefits relating to any current or former employee or independent contractor of Company Group that are attributable to any period on or prior to the Closing Date); (ii) Liabilities arising from products sold in connection with the operation of the Acquired Business after the Closing; (iii) Liabilities arising from the infringement or misappropriation of any third-party Intellectual Property occurring after the Closing Date; and (iv) Liabilities under the Acquired Contracts, but only to the extent such Liabilities (a) arise in the Ordinary Course of Business, (b) are required to be performed after the Closing Date, (c) do not relate to or arise from any breach, default, failure to perform, improper performance, or other violation by the Company Group on or prior to the Closing Date and (d) relate solely to the Acquired Assets.

2.4 Excluded Liabilities. Notwithstanding anything to the contrary in this Agreement, Buyer shall not assume, and shall have no responsibility for, any Liabilities of the Company Group or its Affiliates which are not expressly set forth in Section 2.3 (collectively, the “Excluded Liabilities”). Without limiting the forgoing, the Excluded Liabilities include, without limitation, (i) any trade accounts payable or indebtedness of the Company Group, (ii) any wages, salaries, severance, bonuses, accrued paid time off, benefits, or other compensation obligations relating to any current or former employee or independent contractor of the Company Group, (iii) any Taxes of the Company Group and (iv) Liabilities under the Acquired Contracts that relate to, or arise in connection with, any Excluded Asset.

ARTICLE III

CLOSING AND CONSIDERATION

3.1 Closing. Subject to the terms and conditions of this Agreement, the consummation of the transactions contemplated by this Agreement (the “Closing”) shall take place remotely by electronic exchange of documents and signatures, no later than two Business Days after all of the conditions to Closing set forth in Article VII have been satisfied or waived (other than conditions which, by their nature, are to be satisfied on the Closing Date), or at such other time place, or in such other manner, as the Company Group and Buyer may mutually agree upon in writing; provided that in no event shall the Closing be required to occur prior to the expiration of the Initial Financing Period, or in the event that any Additional Financing Period is timely triggered by Buyer pursuant to Section 6.10(c), prior to the expiration of such Additional Financing Period, in each case, unless Buyer notifies the Company Group of its desire to effectuate the Closing in advance of such date (in which case the Closing shall occur on such earlier date, subject to the satisfaction or waiver by the applicable Party of all applicable conditions contained in Article VII). The date on which the Closing occurs is the “Closing Date.” The Closing shall be deemed effective as of 11:59 p.m. Eastern Time on the Closing Date for all purposes. All proceedings to be taken and all documents to be executed and delivered at the Closing will be deemed to have been taken and executed simultaneously and no proceedings will be deemed to have been taken nor documents executed and delivered until all have been taken, executed and delivered. For the avoidance of doubt the Closing shall take place simultaneously with the closing of the transactions contemplated by the International Purchase Agreement. Accordingly, the Parties have included the condition to Closing set forth in Section 7.1(b).

3.2 Consideration.

(a) Upon the terms and subject to the conditions of this Agreement, as consideration in full for the acquisition of the Acquired Assets from the Company Group and for the covenants set forth in Article VI, Buyer will assume the Assumed Liabilities and pay the Company Group, in total, $17,500,000 (the “Purchase Price”), which shall be allocated between Xtant and Surgalign as set forth on Schedule 3.2(a), based on the Acquired Assets sold by each to Buyer. The Purchase Price shall be payable as follows:

(i) Concurrently with the execution and delivery of this Agreement, Buyer shall pay an amount equal to $2,500,000 (the “Deposit”), by wire transfer of immediately available funds to the account or accounts designated in writing by the Company Group. The Deposit shall be held in accordance with Section 3.2(c) below.

(ii) At the Closing, Buyer shall pay to the Company Group an amount equal to the Purchase Price, less (i) the Deposit, (ii) the Subsequent Deposits, but only if the Subsequent Deposits are paid to the Company Group in accordance with Section 6.10(c), (iii) the aggregate amount set forth in the Payoff Letters that are required to be paid under the terms hereof to the holders of the applicable indebtedness, and (iv) $8,200,000, representing the principal amount of the Note (such net amount, the “Closing Cash Payment”).

(b) At the Closing, Buyer shall:

(i) pay the Closing Cash Payment to the Company Group, by wire transfer of immediately available funds to the account or accounts designated in writing by the Company Group;

(ii) pay, on behalf of the Company Group and for purposes of satisfying the Company Group’s outstanding indebtedness described in the Payoff Letters, by wire transfer of immediately available funds, directly to the Company Group’s lenders, the amounts specified in the Payoff Letters; and

(iii) deliver a promissory note, payable to the Company Group by Buyer, with a principal balance of $8,200,000.00, in substantially in the form attached hereto as Exhibit A, which, for the avoidance of doubt, shall mature on December 31, 2025 (the “Note”).

(c) The Deposit and Subsequent Deposits (to the extent paid to the Company Group pursuant to Section 6.10(c)) shall be non-refundable, except in the event this Agreement is terminated by Buyer pursuant to Section 8.1(c), in which case the Deposit and Subsequent Deposits shall be paid by the Company Group to Buyer by wire transfer of immediately available funds to the account designated in writing by the Buyer within 5 Business Days following such termination. The Parties hereby acknowledge and agree that, except in the case of a termination pursuant to Section 8.1(c) (requiring refund of the Deposit and any Subsequent Deposits to Buyer), in the event of any breach of this Agreement by Buyer or any termination of this Agreement for any reason (other than pursuant to Section 8.1(c)), the Deposit and any Subsequent Deposits shall be retained by the Company Group as liquidated damages and not as a penalty, which shall constitute the Company Group’s sole and exclusive remedy for any and all claims arising out of or relating to any such breach or termination, this Agreement, the transactions contemplated hereby, or any other Transaction Document, except in the case of Fraud or a breach by Buyer after the termination of this Agreement of any provision of this Agreement that survives termination as provided in Section 8.2(b), and the Company Group shall have no other remedy or recourse, whether at law or in equity, including any right to seek monetary damages, equitable relief, or specific performance.

3.3 Inventory Adjustment.

(a) On the Closing Date, the Company Group shall deliver to Buyer a spreadsheet setting forth in good faith all Inventory to be delivered to Buyer pursuant to Section 2.1(e), including each item of such Inventory and its corresponding book value and location (the “Inventory Statement”).

(b) As soon as practicable following the Closing Date, but in any event no later than 10 days after the Closing Date (subject to a one-time extension of up to 10 days at Buyer’s election), Buyer may, at its sole discretion, elect to cause the Company Group and Buyer to (i) conduct a joint physical count of the Inventory located at the Company Group’s facility at 664 Cruiser Lane, Belgrade, MT 59714 (the “Belgrade Facility”) for the purpose of confirming the quantity and location of the Inventory set forth on the Inventory Statement, and (ii) conduct a joint physical count of consigned Inventory at facilities holding an aggregate book value (as set forth on the Inventory Statement) of not less than $5,000 of such consigned Inventory (such facilities, the “Consigned Inventory Facilities”). If Buyer so elects, the Parties shall conduct such physical count in good faith and in cooperation with each other (the “Post-Closing Inventory Count”), and each Party shall bear its own costs and expenses incurred in connection with the Post-Closing Inventory Count, unless otherwise agreed in writing. As used herein “Missing Inventory” means any Inventory that is (A) purported to be located at: (i) the Belgrade Facility, or (ii) any Consigned Inventory Facility of a customer of the Company Group that sold products of the Acquired Business from and after January 1, 2024 until the date hereof and in each case of (i) and (ii) where a physical count was done, and (B) is reflected in the Inventory Statement but is not physically located during the Post-Closing Inventory Count.

(c) If Buyer elects to conduct the Post-Closing Inventory Count, then, within 3 days following the date thereof, the Parties shall confer in good faith and mutually agree upon, if any: (i) the Missing Inventory, the value of which (as set forth in the Inventory Statement) shall be deducted from the aggregate value of all Inventory set forth in the Inventory Statement (such aggregate value, the “Closing Inventory Valuation”), and (ii) the resulting calculation of the Closing Inventory Adjustment Amount. For the avoidance of doubt, the Closing Inventory Valuation shall be determined after excluding any obsolete (with a remaining shelf life of less than six months), unsellable, damaged or expired items. Notwithstanding anything contained herein to the contrary, the Parties hereby agree that the Closing Inventory Adjustment Amount shall in no event exceed an amount equal to $450,000 minus the book value (as set forth on the Inventory Statement) of all Inventory that is physically accounted for during the Post-Closing Inventory Count.

(d) The Closing Inventory Adjustment Amount, if any, shall constitute an adjustment to the Purchase Price. On the date the Closing Inventory Adjustment Amount is finally determined pursuant to Section 3.3(c): (i)(A) if the Note has an outstanding principal balance, plus any accrued but unpaid interest (the “Note Balance”) and (B) the Closing Inventory Adjustment Amount is greater than the Note Balance, then (1) the Note Balance shall be deemed to be paid in full, (2) the Note shall terminate and be of no future force or effect and (3) the Company Group shall pay, by wire transfer of immediately available funds, to the account or accounts designated in writing by Buyer, the amount by which the Closing Inventory Adjustment Amount is greater than the Note Balance, (ii) if the Note Balance is greater than the Closing Inventory Adjustment Amount, then (1) the principal amount of the Note Balance shall be reduced by the amount of the Closing Inventory Adjustment Amount and (2) the Note shall otherwise remain outstanding in accordance with its terms, and (iii) if the Note Balance is equal to or less than $0.00 or if the Note has terminated in accordance with its terms, then the Company Group shall pay, by wire transfer of immediately available funds, to the account or accounts designated in writing by Buyer, an amount equal to the Closing Inventory Adjustment Amount.

(e) The Parties acknowledge and agree that the procedures set forth in this Section 3.3 shall constitute the sole and exclusive mechanism for resolving any and all disputes or claims between the Parties with respect to the valuation of Inventory as of the Closing, and no Party shall have any other rights or remedies (whether at law, in equity, under contract, or otherwise) with respect to any such matters, except for claims arising from Fraud. For the avoidance of doubt, the Parties hereby acknowledge and agree that in the event Buyer does not elect to conduct the Post-Closing Inventory Count pursuant to Section 3.3(b), the Closing Inventory Valuation shall be determined solely based on the Inventory Statement.

3.4 Company Group Closing Deliverables Unless otherwise waived by Buyer, at the Closing, the Company Group shall deliver (or cause to be delivered) the following documents, each in form and substance reasonably satisfactory to Buyer:

(a) any certificates of title necessary to effect or record the transfer of any Tangible Assets for which ownership is evidenced by a certificate of title, duly executed by each member of the Company Group;

(b) (i) with respect to the tangible Acquired Assets not constituting Tangible Personal Property or Inventory, a bill of sale conveying such Acquired Assets to Buyer, in substantially the form attached hereto as Exhibit B, duly executed by Xtant, and (ii) with respect to the Tangible Personal Property and Inventory, a bill of sale conveying such Acquired Assets to Buyer, in substantially the form attached hereto as Exhibit B, duly executed by Surgalign (collectively, the “Bills of Sale”);

(c) an assignment and assumption agreement evidencing the assignment to, and assumption by, Buyer of the Assumed Liabilities, in substantially the form attached hereto as Exhibit C (the “Assignment and Assumption Agreement”), duly executed by each member of the Company Group;

(d) an intellectual property assignment agreement conveying all of Company’s right, title and interest in and to the Acquired Intellectual Property to Buyer, in substantially the form attached hereto as Exhibit D (the “Intellectual Property Assignment Agreement”), duly executed by each member of the Company Group;

(e) a transition services agreement setting forth the terms under which the Xtant will provide certain transition services to Buyer following the Closing, in substantially the form attached hereto as Exhibit E (the “Transition Services Agreement”), duly executed by Xtant;

(f) a copy of the resolutions duly adopted by the board of directors of each member of the Company Group authorizing and approving the execution, delivery, and performance of this Agreement and the Transaction Documents to which such member of the Company Group is or will be a party, and the consummation of the transactions contemplated hereby and thereby;

(g) payoff letters providing for, upon payment of the outstanding debt (or portions thereof) of the Company to its secured lenders at or prior to Closing, the termination of all security interests held by such secured lenders with respect to the Acquired Assets and providing for delivery of uniform commercial code termination statements and releases of Encumbrances in favor of secured lenders on the Acquired Assets (the “Payoff Letters”);

(h) uniform commercial code termination statements or other releases reasonably satisfactory to Buyer to evidence the release of any and all Encumbrances on the Acquired Assets, other than the Encumbrances set forth on Schedule 3.4(h) (the “Permitted Encumbrances”);

(i) subject to Section 3.8 and Section 6.4, evidence reasonably satisfactory to Buyer that the Company Group has obtained the Required Consents;

(j) an IRS Form W-9, duly executed and completed by each member of the Company Group; and

(k) A consolidated, unaudited estimated balance sheet of the Company Group as of the Closing Date, prepared in good faith, solely to the extent relating to the Acquired Business.

3.5 Closing Deliveries by Buyer. At the Closing, Buyer shall deliver (or cause to be delivered) the following documents, each in form and substance reasonably satisfactory to the Company Group:

(a) the Note, duly executed by Buyer;

(b) the Bills of Sale, duly executed by Buyer,

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

(d) the Intellectual Property Assignment Agreement, duly executed by Buyer;

(e) the Transition Services Agreement, duly executed by Buyer; and

(f) a copy of the resolutions duly adopted by Buyer’s board of managers authorizing and approving the execution, delivery, and performance of this Agreement and the Transaction Documents to which Buyer is or will be a party, and the consummation of the transactions contemplated hereby and thereby.

3.6 Withholding. Buyer shall be entitled to deduct or withhold any and all Taxes from any amount payable pursuant to this Agreement such amounts as are required to be deducted and withheld under the Code or other provision of applicable Law as set forth on a schedule provided by Buyer to the Company Group not later than ten (10) days prior to the Closing, which schedule shall contain a written explanation substantiating the requirement to deduct or withhold, as reasonably agreed to by the Company Group, and Buyer shall use commercially reasonable efforts to cooperate with the Company Group or other recipient of any payment hereunder to minimize or eliminate any such withholding to the maximum extent permitted by Law, including by collecting any necessary Tax forms for avoiding such withholding, including IRS Form W-9, an applicable IRS Form W-8 or similar information, from the Company Group and such other recipient. Any amount that is so deducted and withheld and remitted to the applicable Taxing Authority shall be treated as having been otherwise paid to the Company Group for all purposes of this Agreement.

3.7 Allocation of Purchase Price. Each of the Parties agrees that the Purchase Price (which for purposes of this Section 3.7 shall include any Assumed Liabilities required to be treated as part of the Purchase Price for U.S. federal income tax purposes), as may be adjusted pursuant to this Agreement, shall be allocated among the Acquired Assets and the covenants set forth in Article VI in accordance with Schedule 3.7, as required by Section 1060 of the Code, and the Treasury Regulations promulgated thereunder. In addition, Buyer and the Company Group hereby undertake to file timely Form 8594 pursuant to the Treasury Regulations promulgated under Section 1060(b) of the Code. Buyer and the Company Group shall file timely any amendments required to such Form 8594 as a result of a subsequent increase or decrease of the Purchase Price pursuant to this Agreement. Each of the Parties shall adhere to the allocation set forth in Schedule 3.7 (as may be adjusted hereunder) for all purposes relevant to the calculation of Taxes, and shall report the transactions contemplated herein in a manner consistent with such allocation. Except as required by Law, each of the Parties shall not take any position on their respective Tax Returns that is inconsistent with the allocation set forth in Schedule 3.7 (as may be adjusted hereunder); provided, however, that nothing herein shall prevent a party from sending a proposed deficiency or adjustment to any Governmental Authority and no Party will be required to challenge or litigate any proposed deficiency or adjustment by a Governmental Authority. Any party receiving a written notice from a Governmental Authority challenging the allocation in Schedule 3.7 shall provide a copy of such notice to the other parties within ten (10) Business Days of its receipt.

3.8 Restricted Assets. To the extent that the assignment by the Company Group to Buyer of any Acquired Asset would not be effective without the consent or approval of a third party, or otherwise requires Buyer to own, hold or possesses a Permit (each, a “Requirement”) which Requirement is not obtained by the Closing Date (each such Acquired Asset, a “Restricted Asset”), then neither this Agreement nor any other Transaction Document shall be deemed to constitute an assignment or attempted assignment of such Restricted Asset if such assignment or attempted assignment would (i) constitute a breach or other contravention of the rights of such third party and such breach or other contravention would have a Material Adverse Effect as to the rights and obligations of Buyer in such Restricted Asset; or (ii) be ineffective with respect to any party to any such Restricted Asset, provided, however, that, subject to the satisfaction or waiver of the other conditions contained in Article VII (other than any such condition related to obtaining or maintaining any Requirement), the Closing shall occur notwithstanding the fact that such Requirements were not obtained without any adjustment to the Purchase Price. For a period of six (6) months following the Closing Date, without additional consideration, the Company Group shall take commercially reasonable actions in order to obtain for Buyer the benefits, including promptly paying to Buyer all monies received by the Company Group in connection with such Restricted Asset to the extent related to a time period after the Closing, and to assist Buyer in assuming the obligations of such Restricted Asset. For a period of six (6) months following the Closing Date, Buyer and the Company Group will use commercially reasonable efforts, and will cooperate with each other, to try to obtain each Requirement for the sale, assignment, assumption, transfer, conveyance and delivery of the Restricted Assets other than for the Acquired Contracts; provided, however, that neither Buyer nor the Company Group will be required to pay any consideration therefor. In the event a Requirement for the sale, assignment, assumption, transfer, conveyance and delivery of a Restricted Asset is obtained after the Closing Date, the Company Group shall promptly assign, transfer, convey and deliver such Restricted Asset to Buyer, and Buyer shall assume the obligations under such Restricted Asset assigned to Buyer from and after the date of assignment to Buyer pursuant to a special-purpose assignment and assumption agreement substantially similar in terms to those of the Assignment and Assumption Agreement (which special purpose agreement the Parties shall prepare, execute and deliver in good faith at the time of such transfer, all at no additional cost to Buyer). Notwithstanding the foregoing, the Parties hereby acknowledge and agree that with respect to any Restricted Asset that is a Contract to which a member of the Company Group is a party (other than any Contract for which a Closing Required Consent is required hereunder) with any independent agent, distributor, customer, health care provider, and/or group purchasing organization, the Parties shall have fulfilled the Requirement applicable to such Restricted Asset by taking the actions set forth on Schedule 3.8.

ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY GROUP

Except as set forth in the correspondingly numbered Section (and subsection where applicable) of the Disclosure Schedules, the Company Group hereby represents and warrants to Buyer that the statements contained in this Article IV are true and correct as of the date hereof and the Closing Date.

4.1 Organization; Good Standing. Each member of the Company Group is a corporation duly incorporated, validly existing, and in good standing under the laws of the State of Delaware. Each member of the Company Group has all necessary corporate power and authority to own, lease, and operate its assets and to conduct its business as currently conducted, including the Acquired Business. Each member of the Company Group is duly qualified and in good standing as a foreign corporation in each jurisdiction where such qualification is required by reason of its business operations or the ownership or use of its assets.

4.2 Authorization and Effect. Each member of the Company Group has all necessary corporate power and authority to execute and deliver this Agreement and each other Transaction Document to which it is a party, to perform its obligations hereunder and thereunder, and to consummate the transactions contemplated hereby and thereby. The execution, delivery, and performance by each member of the Company Group of this Agreement and such other Transaction Documents have been duly authorized by all requisite corporate action and, to the extend required, all stockholder action. This Agreement and each such Transaction Document, when executed and delivered by the Company Group (assuming due authorization, execution, and delivery by the other parties thereto), constitute the legal, valid, and binding obligations of each member of the Company Group, enforceable against it in accordance with their respective terms, subject to applicable insolvency, bankruptcy, reorganization, moratorium or other similar applicable Law affecting creditors’ rights generally (the “Enforceability Exceptions”).

4.3 Non-Contravention; Consents. The execution, delivery, and performance by the Company Group of this Agreement and the other Transaction Documents to which it is a party, and the consummation of the transactions contemplated hereby and thereby, do not and will not: (i) conflict with or violate the certificate of incorporation, bylaws, or other organizational documents of any member of the Company Group; (ii) violate any applicable Law or Governmental Order; (iii) except as disclosed in Schedule 4.3 of the Disclosure Schedules, require any consent or notice, or result in a breach, default, acceleration, termination, or modification under any Acquired Contract or Permit set forth on Schedule 2.1(h); or (iv) result in the creation of any Encumbrance on the Acquired Assets. No consent, approval, order, or filing with any Governmental Authority is required in connection with the execution, delivery, or performance of this Agreement or any other Transaction Document to which the any member of the Company Group is a party, or the consummation of the transactions contemplated hereby and thereby.

4.4 Financial Statements.

(a) Copies of the following financial statements are attached to Schedule 4.4(a) of the Disclosure Schedules: (i) the unaudited statement of Acquired Assets as of December 31, 2024, (ii) the unaudited statements of revenues and direct expenses of the Company Group solely to the extent related to the Acquired Business for the fiscal year ended December 31, 2024, and (iii) the unaudited statement of Acquired Assets as of March 31, 2025 (the “Latest Financial Date”) and the unaudited statements of revenues and direct expenses of the Company Group solely to the extent related to the Acquired Business for the three month period ending on the Latest Financial Date. The financial data referred to in in this Section 4.4(a) (collectively referred to as the “Financial Statements”) fairly present in all material respects (A) the financial position, condition, assets and liabilities of the Acquired Business as of the dates therein specified and (B) the results of operations of the Acquired Business for the periods indicated therein.

(b) The Financial Statements were derived from the books and records of the Company Group and were prepared in accordance with GAAP, consistently applied for the periods covered.

(c) Neither the Acquired Business nor the Company Group, to the extent related to the Acquired Assets, has any material Liabilities except (i) Liabilities reflected in the Financial Statements or that are not required under GAAP to be shown on the face of the balance sheet as of the Latest Financial Date, or (ii) Liabilities that have arisen after the Latest Financial Date in the Ordinary Course of Business.

(d) The Company Group, solely with respect to the Acquired Business, does not maintain any “off-balance-sheet arrangement” within the meaning of Item 303 of Regulation S-K of the Securities Act.

4.5 Proceedings; Orders. There are no pending or, to the Company Group’s Knowledge, threatened Proceedings or Orders against the Company Group or any of their Affiliates that relate to, arise out of, or could reasonably be expected to affect the Acquired Business, the Acquired Assets, or the transactions contemplated hereby. To the Company Group’s Knowledge, no circumstances exist that would reasonably be expected to give rise to any such Proceeding or Order.

4.6 Compliance with Laws. The Company Group is in material compliance with all Privacy Policies and Laws applicable to the conduct of the Acquired Business and the ownership of the Acquired Assets.

4.7 Absence of Certain Changes Events or Conditions. Since December 31, 2024, the Company Group has operated the Acquired Business in the Ordinary Course of Business, except for actions taken by the Company Group in preparation of the transactions contemplated by this Agreement or any other Transaction Document, and there has been no and there has not been, solely with respect to the Acquired Business, any of the following:

(a) a Material Adverse Effect;

(b) any material change by the Company Group in its accounting methods, principles or practices relating to the Acquired Business, except as required by GAAP or as disclosed in the notes to the Financial Statements;

(c) the termination of employment by the Company Group of employees of the Company Group primarily employed in the Acquired Business, other than in the Ordinary Course of Business;

(d) any waiver by the Company Group of any material rights related to the Acquired Business or the Acquired Assets; or

(e) any other transaction, agreement or commitment entered into which materially and adversely affects the Acquired Business or the Acquired Assets, except, in each case, in the Ordinary Course of Business or as disclosed in the notes to the Financial Statements.

4.8 Business Contracts

(a) Schedule 4.8(a) of the Disclosure Schedules lists each of the following material contracts (whether written or oral and including all amendments and supplements thereto) (x) by which any of the Acquired Assets are bound or otherwise obligated, or (y) to which any member of Company Group is a party or by which any member of the Company Group is bound, in each case, which relate primarily to the Acquired Business or the Acquired Assets, (collectively and including the Acquired Contracts, the “Business Contracts”):

(i) any Contract with any Material Customer;

(ii) any Contract with a Material Supplier;

(iii) any Contract with a Material Distributor;

(iv) any Intellectual Property License Agreement;

(v) any Contract for the licensing of any products or services of the Company Group;

(vi) any Contract that evidences or secures any Encumbrance on the Acquired Assets;

(vii) any capital or operating leases or conditional sales agreements relating primarily to Acquired Assets;

(viii) any Contract pursuant to which any member of the Company Group or any of its Affiliates is entitled or obligated to acquire any assets from, or sell any assets to, a third Person, which are, or if so acquired or disposed, would constitute Acquired Assets;

(ix) any Contract that relates to the development, joint development, or co-ownership of any Owned Intellectual Property;

(x) any Contract that includes any noncompetition, nonsolicitation or similar restriction on any member of the Company Group with respect to the Acquired Business or that similarly restricts, limits, or restricts the use, sale, enforcement or ownership of any of the Acquired Assets;

(xi) any employment, consulting, noncompetition, or separation agreement relating to the Business Employees;

(xii) any collective bargaining, union or labor agreements or arrangements covering any of the Business Employees;

(xiii) any agreements with or for the benefit of any director, manager, officer or Business Employee, or any Affiliate or immediate family member thereof; and

(xiv) all other Contracts that are material to the operation of the Acquired Business or the ownership of the Acquired Assets, in each case, that are not of the nature of the Contracts covered by clauses (i)-(xiii) above (e.g., this subsection (xiv) does not cover any distribution Contract, regardless of whether it is a Contract with a “Material Distributor”).

(b) The Company Group has delivered to Buyer a true and complete copy of each written Business Contract and a true written summary of each oral Business Contract. Each Acquired Contract is valid, binding and in full force and effect and enforceable in accordance with its terms, except as such enforceability may be limited by the Enforceability Exceptions. Each member of the Company Group has performed, in all material respects, all of its obligations under each Acquired Contract to which it is a party and that are required to be performed by such member of the Company Group. There exists no material breach or default (or event that with notice or lapse of time would constitute a material breach or default) on the part of any member of the Company Group under any Acquired Contract, and there has been no termination or notice of default or, to the Company Group’s Knowledge, any threatened termination under any such Acquired Contract.

4.9 Customers; Suppliers; Distributors.

(a) Set forth on Schedule 4.9(a) of the Disclosure Schedules is a complete list of the Xtant’s ten (10) largest customers of the Acquired Business on a revenue basis for the calendar year ended December 31, 2024 (the “Material Customers”), which list indicates the amount of revenues attributable to each such Material Customer for each such period. Since December 31, 2024 (a) no Material Customer has notified Xtant in writing or, to the Knowledge of the Company Group, provided an oral notice or threat of such Material Customer’s intention to terminate, or materially alter its relationship with Xtant, and (b) there has been no material dispute with a Material Customer (other than in the Ordinary Course of Business).

(b) Set forth on Schedule 4.9(b) of the Disclosure Schedules is a complete list of the Xtant’s ten (10) largest suppliers of the Acquired Business each as measured by dollar value for the year ended December 31, 2024 (the “Material Suppliers”), which list indicates the dollar value attributable to each such Material Supplier for each such period. Since December 31, 2024 (a) no Material Supplier has notified the Xtant in writing or, to the Knowledge of the Company Group, provided an oral notice or threat of such Material Supplier’s intention to terminate, or materially alter its relationship with the Xtant, and (b) there has been no material dispute with a Material Supplier (other than in the Ordinary Course of Business).

(c) Set forth on Schedule 4.9(c) of the Disclosure Schedules is a complete list of the fifty (50) largest distributors for the Acquired Business, each as measured by dollar value for the year ended December 31, 2024 (the “Material Distributors”) which list indicates the dollar value attributable to each such Material Distributor for each such period. Since December 31, 2024 (a) no Material Distributor has notified the Xtant in writing or, to the Knowledge of the Company Group, provided an oral notice or threat of such Material Distributor’s intention to terminate, or materially alter its relationship with the Xtant, and (b) there has been no material dispute with a Material Distributor (other than in the Ordinary Course of Business).

4.10 Title and Condition of Acquired Assets.

(a) Except as set forth on Schedule 4.10(a) of the Disclosure Schedules, each member of the Company Group has good, valid, and marketable title to the Acquired Assets owned by it, free and clear of all Encumbrances (other than Permitted Encumbrances), and will transfer good, valid, and marketable title to Buyer at the Closing.

(b) The Acquired Intellectual Property and the Permits included in the Acquired Assets include all of the Intellectual Property and Permits reasonably necessary to market and sell the products sold by the Company Group in the United States in connection with its operation of the Acquired Business in the manner currently conducted, excluding Intellectual Property that is not related to the Coflex and Cofix products.

(c) The Tangible Personal Property is (a) free of known defects and deficiencies and in good operating condition and repair (ordinary wear and tear excepted); and (b) adequate for the conduct of the Acquired Business in the manner in which the Tangible Personal Property is currently being used.

4.11 Coflex Business. Except as set forth on Schedule 4.11 of the Disclosure Schedules, the Acquired Business, the OUS Coflex Business and the Fourth Dimension Spine Assets, together, constitute all of the Company Group’s, and their Affiliates, right, title, and interest, financial or otherwise, in the Coflex Business and the Fourth Dimension Spine Assets, and following the consummation of the transactions contemplated by this Agreement and consummation of the transactions contemplated by the International Purchase Agreement, neither the Company Group, nor their Affiliates, shall own any interest (financial or otherwise) in, operate, or control any portion of the Coflex Business or, subject to Section 6.17, the Fourth Dimension Spine Assets.

4.12 Inventory. Surgalign has good, valid, and marketable title to all of the Inventory, free and clear of all Encumbrances (other than Permitted Encumbrances), and will transfer good, valid, and marketable title to Buyer at the Closing. The Inventory has been reasonably reflected on the Financial Statements in accordance with GAAP. All Inventory is either (i) in the possession of the Company Group or (ii) held on consignment by customers, sales representatives, or distributors of the Acquired Business in the Ordinary Course of Business, in which case such Inventory is listed on Schedule 4.12(a) of the Disclosure Schedules. All Inventory is free and clear of Encumbrances, other than Permitted Encumbrances.

4.13 Sufficiency of Assets. The Acquired Assets include (a) except as set forth on Schedule 4.13(a) of the Disclosure Schedules, all of the assets (whether tangible or intangible) and rights of each member of the Company Group, or any of their Affiliates, that were used exclusively in the conduct of the Acquired Business and (b) the rights that are reasonably necessary to market and sell the products sold by the Company Group in connection with its operation of the Acquired Business as currently conducted without infringing upon, or otherwise violating or misappropriating, the rights of third parties. Except as set forth on Schedule 4.13(b) of the Disclosure Schedules, all of the Acquired Assets are free and clear of Encumbrances, rights of first refusal, options, restrictive easements or any other similar restrictions.

4.14 Products and Product Liability. Except as disclosed in Schedule 4.14 of the Disclosure Schedules, there are no Proceedings pending, or, to the Knowledge of the Company Group, threatened, against or relating to the Company Group with respect to the Acquired Business (a) arising from complaints, allegations or Proceedings relating to any injury to person or property or as a result of ownership, possession, provision or use of any of the products that were manufactured, distributed, labeled, packaged, marketed or sold in the conduct of the Acquired Business or (b) relating to any alleged hazard or alleged defect in design, manufacture, materials or workmanship, including any failure to warn or alleged breach of express or implied warranty or representation, relating to such products, nor have there been any such Proceedings since February 28, 2023 (the “Lookback Date”).

4.15 Intellectual Property.

(a) Schedule 4.15(a) of the Disclosure Schedules sets forth the (i) Owned Intellectual Property and (ii) Third Party Intellectual Property. Except as disclosed in Schedule 4.15(a) of the Disclosure Schedules, all Owned Intellectual Property and, to the Knowledge of the Company Group, all Third Party Intellectual Property is subsisting, valid and enforceable, and all Owned Intellectual Property and, to the Knowledge of the Company Group, all Third Party Intellectual Property that are applications to registered are pending and in good standing.

(b) Except as set forth on Schedule 4.15(b) of the Disclosure Schedules, each member of the Company Group (i) owns (with valid right, title, and interest in), and has a valid right to use, free and clear of all Encumbrances (other than Permitted Encumbrances), the Owned Intellectual Property used in the portion of the Acquired Business conducted by such member of the Company Group, and (ii) has a valid right to use all of the Third Party Intellectual Property in the Acquired Business as currently conducted.

(c) The Company Group has used the Third Party Intellectual Property that is the subject of an Intellectual Property License Agreement in accordance with, and has not breached any of, the terms of the applicable Intellectual Property License Agreement.

(d) The Company Group has not abandoned, forfeited, or otherwise relinquished any Intellectual Property that would, if not abandoned, forfeited, or otherwise relinquished, constitute Owned Intellectual Property. Neither the Company Group, nor any of its Affiliates, has assigned or transferred ownership of, or granted an exclusive license of or exclusive right to use, or authorized the retention of any exclusive rights to use or joint ownership of, any Owned Intellectual Property to any other Person.

(e) To the Knowledge of the Company Group, the conduct of the Acquired Business as currently conducted does not infringe upon or misappropriate (either directly or indirectly, such as through contributory infringement or inducement to infringe) any Intellectual Property rights of any other Person. There are no active or, to the Company Group’s Knowledge, threatened Proceedings regarding the same, and neither the Company Group nor any of its Affiliates has received any written notice or assertion of any such infringement or misappropriation.

(f) To the Knowledge of the Company Group, no third party is misappropriating, infringing, diluting or violating any Owned Intellectual Property or other Intellectual Property owned or used by any member of the Company Group in the Acquired Business, and no Proceedings or other adversarial claims have been brought or threatened against any third party by any member of the Company Group.

(g) The Company Group and its Affiliates have taken commercially reasonable measures consistent with industry standard practice to protect the confidentiality, integrity and security of the Acquired Intellectual Property, including requiring employees and other parties having access thereto to execute written nondisclosure agreements, and ensure the acquisition of the ownership of Intellectual Property created by any employee or other party through written invention assignment agreements. None of the Trade Secrets included in the Acquired Intellectual Property have been disclosed or authorized to be disclosed to any third party other than pursuant to a nondisclosure agreement. To the Knowledge of the Company Group, no employee is in breach of any employee nondisclosure or invention assignment agreement, and, to the Knowledge of the Company Group, no third party to any nondisclosure agreement with the Company Group or any of its Affiliates is in breach, violation or default of such agreement.

(h) Neither the Company Group nor any of its Affiliates has accepted or received any funding (including tax incentives or relief), facilities or resources from any Governmental Authority used in the development of any Owned Intellectual Property, and no Governmental Authority, university, college, other educational institution, multi-national, bi-national or international organization or research center has any claim or right (including license rights) to any Owned Intellectual Property.

(i) Except for the Intellectual Property included in the Acquired Assets, there is no Intellectual Property owned by any third party or any member of the Company Group that would be infringed by the marketing and sale of the products sold in the operation of the Acquired Business, as currently conducted.

4.16 Permits. The Company Group owns, holds or possesses all of the Permits which are necessary or appropriate for the conduct of the Acquired Business or the ownership of the Acquired Assets (the “Business Permits”), each of which is set forth on Schedule 4.16 of the Disclosure Schedules. Except as disclosed in Schedule 4.16 of the Disclosure Schedules, (i) each of the Business Permits is valid and in full force and effect and (ii) subject to Section 3.8 and Section 6.4, each Business Permit is an Acquired Asset and will be conveyed, transferred, and assigned to Buyer at the Closing.

4.17 Litigation. Except as set forth on Schedule 4.17 of the Disclosure Schedules, there are currently no pending or, to the Company Group’s Knowledge, threatened lawsuits, administrative proceedings or reviews, or formal or informal complaints or investigations or inquiries (including, grand jury subpoenas) (collectively, “Litigation”) by any Person against the Company Group relating to or concerning the Acquired Business or to which any of the Acquired Assets may be subject, nor is the Company Group subject to, or bound by, any currently existing Order arising from any Litigation that relates to the Acquired Business or the Acquired Assets.

4.18 Employment Matters.

(a) Schedule 4.18 of the Disclosure Schedules includes a complete list of (i) all current employees of the Company Group primarily engaged in the Acquired Business (the “Business Employees”), and (ii) all current independent contractors or other third parties engaged or retained by the Company Group primarily for providing services for the benefit of the Acquired Business, including such individual’s (i) name, (ii) title or position, (iii) hire date, (iv) current base compensation or rate, (v) bonus or incentive compensation, (vi) exempt/nonexempt status (with respect to Business Employees), and (vii) the specific member of the Company Group that employs or engages such Person.

(b) (i) the Company Group has not been and is not now a party to any collective bargaining, union or labor agreements, contracts or other arrangements with any group of Business Employees, labor union or employee representative (to the extent such labor union or employee representative represents the Business Employees); (ii) since the Lookback Date, there has not been, and there is not presently pending or existing, and to the Company Group’s Knowledge, there is not threatened, any strike, material labor trouble, or work stoppage of the Business Employees; (iii) to the Company Group’s Knowledge no event has occurred since the Lookback Date or circumstance exists that could reasonably be expected to provide the basis for any strike, work stoppage or other labor dispute of the Business Employees; (iv) there is no pending or, to the Company Group’s Knowledge, threatened proceeding relating to the alleged violation of any legal requirement pertaining to labor relations or employment matters, including any charge or complaint filed with the National Labor Relations Board or any comparable Governmental Authority, against or affecting the Company Group with respect to the Business Employees; (v) no application or petition for an election of or for certification of a collective bargaining agent with respect to the Business Employees is pending; (vi) no grievance or arbitration proceeding exists with respect to the Business Employees that, if determined adversely to the Acquired Business, would be reasonably likely to have a Material Adverse Effect upon the conduct of the Acquired Business; (vii) there is no lockout of any Business Employees by the Company Group and no such action is contemplated by the Company Group; and (viii) to the Company Group’s Knowledge there has been no charge of discrimination, harassment, or retaliation filed against or threatened against the Company Group with respect to the Business Employees with the Equal Employment Opportunity Commission or similar Governmental Body.

(c) The Company Group is currently, and since the Lookback Date has been, in compliance, in all material respects, with all Laws applicable to the Acquired Business relating to the employment of the Business Employees, including those related to labor management relations, wages, hours, exempt status classification, collective bargaining, equal employment opportunities, discrimination, sexual harassment, civil rights, affirmative action, plant closings and mass layoffs, workplace safety and health, employment-related immigration and authorization to work in the United States, and the payment and withholding of taxes and other sums as required by the appropriate Governmental Authority.

(d) During the ninety (90) day period preceding the date hereof, no Business Employee (nor any individual that would have constituted a Business Employee during such ninety (90) day period) has suffered an “employment loss” (as defined in the federal Worker Adjustment and Retraining Notification Act).

(e) The Company Group has no formal plan or commitment, whether legally binding or not, to increase the compensation payable or to become payable to the Business Employees, except for customary increases in salaries or wages in the Ordinary Course of Business.

4.19 Employee Benefit Plans.

(a) The term “Employee Benefit Plans” means: (a) any “employee benefit plan” within the meaning of Section 3(3) of ERISA and (b) all material plans or policies providing for fringe benefits and each other bonus, incentive compensation, deferred compensation, profit sharing, stock, units, membership interest, ownership interest, severance, retirement, health, life, accidental death and dismemberment, disability, group insurance, employment, stock option, stock purchase, stock appreciation right, phantom stock, performance share, supplemental unemployment, layoff, consulting, or any other similar plan, agreement, policy or understanding (whether written or oral, qualified or nonqualified, currently effective or terminated), in each case for the benefit of any Business Employee or present or former consultant or director of the Company Group who is or was primarily engaged in the Acquired Business, or any dependent thereof. Except as required by applicable Law, the Company Group has no formal plan or commitment, whether legally binding or not, to create any additional Employee Benefit Plan or modify or change any existing Employee Benefit Plan prior to the Closing Date that would affect any Business Employee, or any dependent or beneficiary thereof.

(b) Neither the Company Group nor any of its Affiliates or any ERISA Affiliate has, since the Lookback Date, maintained, established, sponsored, participated in, contributed to, or is obligated to contribute to, or otherwise incurred any obligation or Liability (including, any contingent liability) under any “multiemployer plan” (as defined in Section 3(37) of ERISA) or to any “pension plan” (as defined in Section 3(2) of ERISA) subject to Title IV of ERISA or section 412 of the Code, in each case with respect to the Business Employees and for which Buyer could have Liability as a result of the transactions contemplated by this Agreement. Neither the Company Group nor any of its Affiliates or any ERISA Affiliate has any actual or potential withdrawal liability (including, any contingent liability) for any “complete withdrawal” or “partial withdrawal” (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) from any multiemployer plan with respect to the Business Employees.

(c) No Employee Benefit Plan provides for or promises, or has, since the Lookback Date, provided for or promised, retiree medical, disability or life insurance benefits to any Person other than as required under section 4980B of the Code or similar applicable state law.

(d) (i) All required contributions through Closing with respect to the Employee Benefit Plans have been made or properly accrued, in all material respects, (ii) all required Tax filings as to each Employee Benefit Plan have been made, and all required notices and disclosures to the extent applicable have been filed or distributed in accordance with the applicable requirements of ERISA and the Code, and (iii) each Employee Plan is, and has been operated since the Lookback Date, in compliance in all material respects with its terms and applicable Law, including ERISA and the Code, except, in each case, for such failures which would not, individually or in the aggregate, reasonably be expected to result in Liability to Buyer or any of its Affiliates at or following the Closing.

(e) The consummation of the transactions contemplated by this Agreement alone, or in combination with any other event (where such event would not alone have an effect described in this sentence), will not: (i) result in any material liability or obligation under any Employee Benefit Plan for which Buyer will be responsible, including any such liability for severance pay, separation pay or withdrawal liability, (ii) accelerate the time of payment or vesting or increase the amount of compensation or benefits due to any Business Employee, director, or other service provider of the Acquired Business (in each case whether current or former) or their spouses or beneficiaries, or (iii) increase the amount payable to any Business Employee under or result in any other material obligation for which Buyer will be responsible pursuant to any Employee Benefit Plan.

(f) the Company Group has no obligation to make any severance or termination payment to any Business Employee in excess of any amount payable under applicable Law.

4.20 Taxes.

(a) Each Tax Return required to be filed by the Company Group with respect to the Acquired Business and the Acquired Assets prior to the date hereof has been accurately prepared and duly and timely filed (giving effect to any valid extensions) in accordance with applicable Law. All such Tax Returns are true and complete in all material respects.

(b) All Taxes (whether or not shown on any Tax Return) with respect to the Acquired Business and the Acquired Assets that are due and payable by the Company Group have been timely paid.

(c) The Company Group is not delinquent in the payment of any Tax with respect to the Acquired Business or the Acquired Assets. There are no Tax deficiencies outstanding, assessed, or, to the Knowledge of the Company Group, proposed against any member of the Company Group. The Company Group has not executed any waiver or extension of any statute of limitations on the assessment or collection of any Tax, in each case with respect to the Acquired Business or the Acquired Assets.

(d) No Tax audit, action, exam, suit, proceeding, investigation or claim is now pending or, to the Company Group’s Knowledge, is threatened against any member of the Company Group, and to the Company Group’s Knowledge, no issue or question has been raised (and is currently pending) by any Governmental Authority with respect to any Taxes or the Tax Returns of any member of the Company Group.

(e) No written claim has ever been made by a Governmental Authority in a jurisdiction in which the Company Group does not file a particular Tax Return or pay a particular Tax with respect to the Acquired Business or the Acquired Assets that indicates that the Company Group is or may be required to file such Tax Return or pay such Tax.

(f) The Company Group has withheld or collected the full amount of any and all Taxes required to be withheld or collected by it with respect to the Acquired Business or the Acquired Assets and has paid the same to the proper Taxing Authority in accordance with applicable Law. The Company Group has collected and/or maintained properly completed exemption certificates and supporting documents in the manner required by applicable Laws to support the reduction of, or exemption from, any Tax (including Taxes required to be withheld, deducted and/or collected by the Company Group) with respect to the Acquired Business and the Acquired Assets.

(g) Except with respect to statutory Encumbrance for Taxes not yet due and payable, there are no Encumbrances for unpaid Taxes on the Acquired Assets and no claim for unpaid Taxes has been made in writing by any Taxing Authority that could give rise to any such Encumbrance.

(h) None of the Acquired Assets are (i) subject to any Tax partnership agreement or provisions requiring a partnership income Tax Return to be filed under Subchapter K of Chapter 1 of Subtitle A of the Code, or (ii) treated as an equity interest in any Person for Tax purposes.

(i) The Company Group is not subject to Tax with respect to the Acquired Business or the Acquired Assets in any jurisdiction outside the United States by virtue of (i) having a permanent establishment or other place of business or (ii) having a source of income in that jurisdiction.

(j) The Company Group has not participated in or been the promoter of a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2).

(k) The Company Group has complied in all material respects with respect to all escheat and abandoned or unclaimed property Laws that are applicable to the Acquired Business or the Acquired Assets.

4.21 Real Property.

(a) The Company Group does not own any real property that is used in the conduct of the Acquired Business.

(b) Neither the Company Group nor any of its Affiliates own, use, hold for use, lease sublease, license, or occupy any real estate primarily in connection with the Acquired Business.

4.22 Conflicts of Interest

. No director, manager, or officer of the Company Group (a) owns, directly or indirectly, an interest in any Person that is a competitor, customer or supplier of the Company Group in respect of the Acquired Business or that otherwise has material business dealings with the Company Group in respect of the Acquired Business; or (b) is a party to, or otherwise has any direct or indirect interest opposed to the Company Group under, any Business Contract.

4.23 Brokerage. No broker, finder, or advisor is entitled to any fee or commission in connection with the transactions contemplated by this Agreement based on any arrangement made by or on behalf of the Company Group or its Affiliates.

4.24 Solvency. The Company Group is now Solvent and will not be rendered insolvent by any of the transactions contemplated by this Agreement. No transfer of the Acquired Assets is being made and no obligation is being incurred in connection with the transactions contemplated by this Agreement with the intent to hinder, delay or defraud either present or future creditors of the Company Group.

4.25 Books and Records. The books of account and other records of the Company Group which are primarily related to the Acquired Business, all of which have been made available to Buyer, are complete and correct in all material respects, represent actual, bona fide transactions related to the Acquired Business, and have been maintained in accordance with sound business practices.

4.26 No Other Representations

. Except for the representations and warranties expressly set forth in this Article IV, neither the Company Group nor any of its Affiliates, nor any of their respective directors, officers, employees, agents, or representatives, makes or shall be deemed to have made any other representation or warranty, express or implied, at law or in equity, with respect to the Company Group, the Acquired Assets, the Acquired Business, or the transactions contemplated hereby, and any such other representations or warranties are hereby expressly disclaimed.

ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BUYER

Buyer hereby represents and warrants to the Company Group as follows.

5.1 Organization; Good Standing. Buyer is a limited liability company duly formed, validly existing, and in good standing under the laws of its jurisdiction of formation. Buyer has all requisite limited liability company power and authority to own, lease, and operate its assets and to conduct its business as currently conducted.

5.2 Authorization and Enforceability. Buyer has all necessary limited liability company power and authority to execute and deliver this Agreement and each other Transaction Document to which it is a party, to perform its obligations hereunder and thereunder, and to consummate the transactions contemplated hereby and thereby. The execution, delivery, and performance by Buyer of this Agreement and such other Transaction Documents have been duly authorized by all requisite action on the part of Buyer. This Agreement and each such Transaction Document, when executed and delivered by Buyer (assuming due authorization, execution, and delivery by the other parties thereto), constitute the legal, valid, and binding obligations of Buyer, enforceable against Buyer in accordance with their respective terms, subject to the Enforceability Exceptions.

5.3 Brokerage. No broker, finder, or other financial advisor is entitled to any fee or commission in connection with the transactions contemplated by this Agreement based upon any arrangement or agreement made by or on behalf of Buyer or its Affiliates.

5.4 Litigation. There is currently no pending or, to Buyer’s Knowledge, threatened Litigation by any Person against Buyer, which if determined adversely to Buyer, would reasonably be expected to have a Material Adverse Effect, nor is Buyer subject to or bound by any currently existing Order that would reasonably be expected to have a Material Adverse Effect.

5.5 Solvency. Buyer is now Solvent and will not be rendered insolvent by the consummation of the transactions contemplated by this Agreement or the other Transaction Documents.

5.6 Sufficient Funds. At Closing, Buyer will have immediately available funds sufficient for Buyer to pay the Closing Cash Payment, and any other amounts required to be paid in connection with the consummation of the transactions contemplated by this Agreement.

5.7 Financial Statements. Copies of the following financial statements of Buyer have been provided to the Company Group: (i) the unaudited balance sheet and statement of income for the year ended December 31, 2024, and (ii) the unaudited balance sheet and statement of income for the four (4) month period ended April 30, 2025. The financial data referred to in this Section 5.7 fairly presents in all material respects (A) the financial position, condition, assets and liabilities of Buyer as of the dates therein specified, and (B) the results of operations of Buyer for the periods indicated therein. Such financial data was derived from the books and records of Buyer and has been prepared in accordance with GAAP.

5.8 No Other Representations. Except for the representations and warranties expressly set forth in this Article V, neither Buyer nor any of its Affiliates, nor any of their respective managers, officers, employees, agents, or representatives, makes or shall be deemed to have made any other representation or warranty, express or implied, at law or in equity, with respect to Buyer or the transactions contemplated hereby, and any such other representations or warranties are hereby expressly disclaimed.

ARTICLE VI
COVENANTS

6.1 Conduct of Business. From the date of this Agreement until the Closing (the “Interim Period”), and except (i) as otherwise consented to or approved in writing by an authorized officer or agent of Buyer, (ii) as required by any Law or Order, (iii) as required by this Agreement or as permitted under Schedule 6.1 of the Disclosure Schedules, the Company Group shall, with respect to the Acquired Business, use its commercially reasonable efforts to:

(a) operate the Acquired Business in the Ordinary Course of Business;

(b) maintain the Acquired Business, including all of the Acquired Assets, in operating condition in a manner consistent with past practices, ordinary wear and tear excepted, in the Ordinary Course of Business;

(c) perform in all material respects and in the Ordinary Course of Business its obligations under the Acquired Contracts required to be performed by the Company Group during the Interim Period;

(d) keep in full force and effect all present insurance policies or substantially equivalent policies to the extent pertaining to the Acquired Business or the Acquired Assets;

(e) keep in full force and effect, without amendment, all material rights relating to the Acquired Business;

(f) maintain all books and records of the Company Group or its Affiliates relating to the Acquired Business in the Ordinary Course of Business; and

(g) maintain and preserve its business organization intact and maintain its relationships and goodwill with vendors, suppliers, customers and others having business relationships with the Acquired Business or the Acquired Assets in the Ordinary Course of Business.

6.2 Negative Covenants. Without limiting the generality of Section 6.1, during the Interim Period, and except as (i) otherwise consented to or approved in writing by an authorized officer or agent of Buyer (which consent shall not be unreasonably withheld, conditioned, or delayed), (ii) required by any Law or Order, or (iii) otherwise required by this Agreement, the Company Group shall not, with respect to the Acquired Business:

(a) amend or terminate any of the Acquired Contracts, or enter into any new contract or commitment related to the Acquired Business, except in the Ordinary Course of Business;

(b) make any material change in personnel or increase compensation payable or to become payable or make any bonus payment to or otherwise enter into one or more bonus agreements with any Business Employee, except in the Ordinary Course of Business;

(c) create, assume or permit to exist any new Encumbrance (other than Permitted Encumbrances) upon any of the Acquired Assets, except in the Ordinary Course of Business;

(d) acquire (whether by purchase or lease) or sell, assign, lease, or otherwise transfer or dispose of any Acquired Asset, except in the Ordinary Course of Business, which exception, for the avoidance of doubt, will include the acquisition, sale or other disposition of Inventory in the Ordinary Course of Business;

(e) enter into any compromise or settlement of any Litigation, Order, proceeding or governmental investigation relating to the Acquired Assets or the Acquired Business in excess of $100,000; or

(f) take any action or fail to take any reasonable action within its control, as a result of which any of the changes or events listed in Section 4.7 would reasonably be likely to occur.

6.3 Access to Information. From and after the date hereof until the earlier of the Closing Date or the termination of this Agreement in accordance with its terms, upon reasonable notice, and subject to any restrictions contained in any confidentiality agreements to which the Company Group or any of its Affiliates is subject (in which case the Company Group shall use commercially reasonable efforts to make substitute access arrangements), the Company Group shall, and shall cause its Affiliates to, provide to Buyer and its Representatives reasonable access to all books and records (including the ability to make copies thereof), employees, facilities and properties of or related to the Acquired Business or the Acquired Assets (in a manner so as to not interfere unreasonably with the normal business operations of the Company Group and its Affiliates) and, during such period, the Company Group shall furnish promptly to Buyer all information concerning the Acquired Business or Acquired Assets as Buyer may reasonably request. Notwithstanding the foregoing, the Company Group shall not be required to disclose any information to Buyer if such disclosure would (y) jeopardize any attorney-client or other privilege or (z) contravene any applicable Law.

6.4 Efforts; Required Consents. Subject to the terms and conditions herein, Buyer and the Company Group shall, prior to the Closing, use their commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable to consummate and make effective as promptly as practicable the transactions contemplated by this Agreement (including the satisfaction of the Closing conditions set forth in Article VII), including with respect to the Company Group obtaining and maintaining the consents from third parties identified on Schedule 6.4 (the “Required Consents”). For the avoidance of doubt, if Buyer elects to waive the receipt of any Required Consent prior to the Closing, then the Parties shall proceed with the Closing (provided that all other conditions to Closing set forth in Article VII have been satisfied or waived, as the case may be), and such Acquired Asset applicable to such Required Consent shall be treated as a Restricted Asset in accordance with Section 3.8.

6.5 Assistance with Filing. Prior to the Closing and for a period of six (6) months after the Closing Date, the Company Group, as applicable, will use commercially reasonable efforts to furnish Buyer with all information concerning the Company Group, the Acquired Business, or the Acquired Assets that is reasonably required for inclusion in any application or filing made by Buyer with any Governmental Authority in connection with the transactions contemplated by this Agreement or the Transaction Documents. Nothing in this Section 6.5 shall require the Company Group to create or develop new reports or information, or provide reports or furnish information, other than in the form in which such reports or information currently exists.

6.6 Exclusivity.

(a) From the date of this Agreement until the earlier of the Closing Date or the termination of this Agreement in accordance with its terms, the Company Group shall not, and shall not permit any of its Affiliates or any of the Company Group’s or such Affiliate’s directors, officers, employees, stockholders, Affiliates or representatives to, directly or indirectly, (i) initiate, solicit, or knowingly facilitate or encourage any inquiries or the making of any proposal or offer from any Person or group of Persons that may constitute, or would reasonably be expected to lead to, the acquisition of all or any significant part of the Acquired Business or the Acquired Assets (other than sales in the Ordinary Course of Business) or any other transaction that would preclude the transactions contemplated by this Agreement (each, an “Alternative Transaction”), it being understood that that the acquisition of the Company Group’s outstanding equity securities will not be considered an Alternative Transaction so long as the Company Group remains bound by this Agreement in accordance with its terms, (ii) engage in, enter into, continue or otherwise participate in any discussions or negotiations with any Person or group of Persons (other than Buyer) with respect to, or provide any non-public information or data concerning, the Acquired Business or the Acquired Assets to any Person or group of Persons (other than Buyer) relating to any proposal, indication of interest, inquiry, request or offer that constitutes, or would reasonably be expected to result in, an Alternative Transaction, or (iii) approve, endorse, recommend or enter into any acquisition agreement, purchase agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement relating to an Alternative Transaction. The Company Group shall promptly notify Buyer if any Person makes any proposal, offer or inquiry with respect to an Alternative Transaction.

(b) From and after the date of this Agreement until the earlier of the Closing Date or the termination of this Agreement in accordance with its terms, the Company Group will, and will cause its Affiliates and Representatives to, (i) immediately cease and cause to be terminated any existing communications, discussions, negotiations and other activities with any Person or its Representatives (other than Buyer and its Representatives) with respect to any Alternative Transaction, or any inquiry, proposal, offer or indication of interest that could reasonably be expected to lead to any Alternative Transaction; (ii) immediately terminate and discontinue any access of any Person and its Representatives (other than Buyer and its Representatives and the Company Group and its Representatives) to any data room (virtual, physical or otherwise) or similar information-sharing platform containing any of the Company Group’s confidential information with respect to any Alternative Transaction; and (iii) immediately request, and use reasonable best efforts to cause, the prompt return or destruction of any confidential information previously furnished or made available to such Persons and their Representatives through such platform or in connection with a possible Alternative Transaction.

(c) The Company Group will promptly inform its Affiliates and Representatives of the restrictions set forth in this Section 6.6. Any breach or violation of the restrictions set forth in this Section 6.6 by any Affiliate or by any Representative of the Company Group, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of the Company Group or otherwise, will be deemed to be a breach or violation of this Section 6.6 by the Company Group.

6.7 Notifications; Stockholder Litigation.

(a) From and after the date of this Agreement until the earlier of the Closing Date or the termination of this Agreement in accordance with its terms, the Company Group shall deliver to Buyer prompt notice of any matter, event, circumstance, change or effect arising after the date hereof if, and only if, to the Knowledge of the Company Group, such matter, event, circumstance, change or effect has caused, or would reasonably be expected to cause, any of the conditions set forth in Section 7.2(a) or Section 7.2(b) not to be satisfied as of the Closing; provided, that no such notification shall impact Buyer’s right to assert a failure of the conditions set forth in Section 7.2(a) or Section 7.2(b). From and after the date of this Agreement until the earlier of the Closing Date or the termination of this Agreement in accordance with its terms, Buyer shall deliver to the Company Group prompt notice of any matter, event, circumstance, change or effect arising after the date hereof if, and only if, to the Buyer’s knowledge, such matter, event, circumstance, change or effect has caused, or would reasonably be expected to cause, any of the conditions set forth in Section 7.3(a) or Section 7.3(b) not to be satisfied as of the Closing; provided, that no such notification shall impact the Company Group’s right to assert a failure of the conditions set forth in Section 7.3(a) or Section 7.3(b).

(b) The Company Group will promptly advise Buyer orally and in writing of any Proceeding, whether commenced prior to or after the date of this Agreement, brought against the Company Group or its directors or officers relating to this Agreement or the transactions contemplated by this Agreement and will keep Buyer fully informed regarding any such Proceeding, including discussions and developments in respect of settlement thereof.

6.8 No Public Disclosure. No press release or public announcement related to this Agreement, the Transaction Documents or the transactions contemplated hereby or thereby, shall be issued or made by any Party (nor will any Party permit any of its advisors or Affiliates to do any thereof) without the prior written approval of Buyer and the Company Group, (a) unless, in the reasonable opinion of counsel, such communication is required by applicable Law, in which case the Company Group and Buyer shall be afforded a reasonable opportunity to review and comment on such press release, announcement or communication prior to its issuance, distribution or publication, and (b) except for disclosure made in connection with the enforcement of any right or remedy relating to this Agreement, the Transaction Documents or the transactions contemplated hereby or thereby. Nothing herein shall prevent (i) any Party from at any time furnishing any information to any Governmental Entity or from making any disclosures required or that a Party deems appropriate under the Exchange Act (including furnishing or filing this Agreement or any information contained herein in any filings made under the Exchange Act), or under the rules and regulations of any national securities exchange on which such Party’s (or such Party’s Affiliate’s) shares of capital stock are listed, or (ii) Buyer or its Affiliates or Representatives from disclosing information regarding this Agreement and the transactions contemplated hereby to the any source of the Financing, including, but not limited to, financial institutions, investors and limited partners. Nothing herein shall prevent the Company Group from (i) filing this Agreement as an exhibit to Current Report on Form 8-K with the U.S. Securities and Exchange Commission after the execution of this Agreement or (ii) making a press release or public announcement, and making any disclosures required or that the Company Group deems appropriate under the Exchange Act, which may include filing a Current Report on Form 8-K with the U.S. Securities and Exchange Commission, to announce and disclose any termination of this Agreement, the reason(s) for the termination, and the terms of such termination; provided, however, that in the event the Company Group makes any such press release, public announcement or disclosure pursuant to this clause (ii), Buyer shall be afforded a reasonable opportunity to review and comment on such press release, announcement or disclosure, and the Company Group shall consider in good faith any such comments, in each case, prior to making such press release, announcement or disclosure.

6.9 Restrictive Covenants.

(a) The Company Group hereby covenants and agrees that during the three-year period beginning on the Closing Date, the Company Group shall not, and shall cause its Affiliates not to, directly or indirectly, engage in any business that is directly competitive with the Coflex Business anywhere in the world or the Fourth Dimension Spine Systems anywhere in the United States, or own any interest in, operate, control, have a financial interest which provides any control of, or participate with or in, any Person producing, designing, providing, soliciting orders for, selling, distributing, consulting to, or marketing or re-marketing products or services, that are directly competitive with the Coflex Business or the Fourth Dimension Spine Systems; provided, that nothing in this Section 6.9(a) shall prohibit the Company Group or any its Affiliates from (i) owning or holding less than five percent of the outstanding shares of any class of stock that is regularly traded on a recognized U.S. or non-U.S. securities exchange or over-the-counter market, (ii) engaging in any of its existing businesses, it being acknowledged by Buyer that the existing businesses of the Company Group and its Affiliates (other than the Acquired Business and the holding of the Fourth Dimension Spine Assets) are not engaged in any activity that is directly competitive with the Coflex Business or the Fourth Dimension Spine Systems, (iii) acquiring any Person, so long as such acquired Person did not derive more than 10% of its revenues in most recently completed fiscal year from the sale of products that are directly competitive with the Coflex Business or the Fourth Dimension Spine Systems as of the Closing Date, (iv) owning any and all of the Excluded Assets or fulfilling their obligations under any Contract (whether now existing or subsequently entered into) included in the Excluded Assets and which are reasonably necessary in conducting any of the activities referenced in the immediately preceding clauses (i)-(iii).

(b) The Company Group hereby covenants and agrees that during the two-year period beginning on the Closing Date, the Company Group shall not, and shall cause its Affiliates not to, directly or indirectly, hire, recruit, solicit, contact, or approach for employment, hiring, or engagement (whether as an employee, consultant, agent, independent contractor, or otherwise), or encourage to leave his or her employment or consulting relationship with Buyer or any of its Affiliates, any Business Employee who accepts an offer of employment with Buyer or otherwise seek or attempt to influence or alter any such Person’s relationship with Buyer or any of its Affiliates; provided, that nothing in this Section 6.9(b) shall prohibit the Company Group or any of its Affiliates from any: (i) general solicitation for employment (including in any newspaper or magazine, over the internet, or by any search or employment agency), if not specifically directed towards any such Person; (ii) hiring of any such Person where the initial contact with such individual regarding such hiring arose from any such general solicitation; or (iii) soliciting for employment or hiring any individual who at the time of such solicitation and hiring has not been employed by Buyer or any Affiliate of Buyer for at least six months prior to such solicitation.

(c) The Company Group recognizes and acknowledges that, as of the Closing Date, it will have knowledge of confidential or other proprietary information relative to the activities of Buyer as such activities relate to the Coflex Business, including information relating to financial statements or other financial information, clients, customers, potential clients or customers, employees, suppliers, equipment, designs, discoveries, drawings, programs, strategies, analyses, profit margins, pricing information, Contracts, sales and marketing information or materials, methods of operation, plans, processes, research, systems, techniques, Intellectual Property, products, technologies, materials, innovations, improvements, technical know-how, developments, strategies, ideas, prospects, tangible or intangible work product or other proprietary information, in each case related to the Coflex Business (“Confidential Information”). In light of the foregoing, during the three-year period beginning on the Closing Date, the Company Group shall, and shall cause its Affiliates, directors, officers, employees and Representatives to, maintain the confidentiality of, and refrain from using or disclosing for any purposes, whether directly or indirectly, to any Person, all Confidential Information that exclusively relates to the Coflex Business. Nothing in this Section 6.9(c) shall prohibit (i) the disclosure of any Confidential Information that is required by applicable Law, or (ii) the disclosure of Confidential Information after any such information is in the public domain through no act on the part of the Company Group or any of its Affiliates, directors, officers, employees or representatives.

(d) The Company Group acknowledges and agrees that the length of time, scope, and geographic coverage of the covenants set forth in this Section 6.9 are fair and reasonable given the benefits the Company Group has received under this Agreement. The Company Group further agrees that it will not challenge the reasonableness of the time and scope in any Action, regardless of who initiates such Action. The Company Group further acknowledges and agrees that the covenants set forth in this Section 6.9 are necessary for the protection of Buyer’s legitimate business interests and that Buyer would not have entered into this Agreement unless the Company Group had agreed for it and its respective Affiliates to be irrevocably bound by the covenants contained in this Section 6.9, that irreparable injury will result to Buyer if the Company Group or any of its respective Affiliates breach any of the terms of this Section 6.9, and that in the event of an actual or threatened breach by the Company Group or any of its respective Affiliates of any of the provisions contained in this Section 6.9, Buyer would have no adequate remedy at Law. The Company Group accordingly waives, on behalf of itself and its respective Affiliates, the defense of adequacy of a remedy at Law, and agrees that in the event of any actual or threatened breach by it or any of its Affiliates of any of the provisions contained in this Section 6.9, Buyer shall be entitled to injunctive and other equitable relief without (i) the posting of any bond or other security, (ii) the necessity of showing actual damages, and (iii) the necessity of showing that monetary damages are an inadequate remedy. Nothing contained in this Section 6.9 shall be construed as prohibiting Buyer from pursuing any other remedies available to it for such breach or threatened breach, including the recovery of any damages that it is able to prove. The Company Group shall be liable for any breach by any of its Affiliates of this Section 6.9.

(e) This Section 6.9 shall be deemed to consist of a series of separate and independent covenants and shall be worldwide (except as otherwise provided in Section 6.9(a)) in geographic scope. The Parties expressly agree that the character, duration and scope of this Section 6.9 are reasonable and necessary for the protection of Buyer’s legitimate interests in the goodwill of the Acquired Business in light of the circumstances as they exist on the date hereof and the consideration for the covenants contained in this Section 6.9 is included in the consideration payable pursuant to Section 3.2. Should a determination nonetheless be made by a court of competent jurisdiction at a later date that the character, duration or geographical scope of this Section 6.9 is void, unenforceable, or unreasonable in light of the circumstances as they then exist, then it is the intention and the agreement of the Company Group (on behalf of itself and its Affiliates) that this Section 6.9 shall be construed by the court in such a manner as to impose only those restrictions (including with any such modification as may be required to make a restriction valid and enforceable) on the conduct of the Company Group and its Affiliates that are valid, enforceable, and reasonable in light of the circumstances as they then exist and as are necessary to assure Buyer of the intended benefit of this Section 6.9. If, in any Action, a court shall refuse to enforce all of the separate covenants deemed included in this Section 6.9 because, taken together, they are more extensive than necessary to assure Buyer of the intended benefit of this Section 6.9, it is expressly understood and agreed among the Parties that those of such covenants that, if eliminated, would permit the remaining separate covenants to be enforced in such Action shall, for the purpose of such Action, be deemed eliminated from the provisions of this Section 6.9 and the Parties shall negotiate in good faith to replace such void or unenforceable covenant with a valid provision which, as far as possible, has the same commercial effect as the provision which it replaces.

6.10 Buyer’s Financing.

(a) During the Interim Period, Buyer shall use commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary or advisable to obtain financing, on terms acceptable to Buyer for the purposes of funding the consummation of the transactions contemplated by this Agreement on the Closing Date (the “Financing”). Buyer will promptly inform the Company Group when it has obtained an unconditional commitment to provide the Financing (except for conditions that, by their nature, will only be satisfied at the time the Financing is provided) and, upon request of Company Group, provide evidence of such commitment.

(b) Prior to the Closing Date, the Company Group shall use commercially reasonable efforts to provide to Buyer, at Buyer’s sole cost and expense, such reasonable cooperation in connection with the arrangement of the Financing as is reasonably necessary and customary for financings and reasonably requested in writing by Buyer. Nothing in this Section 6.10(b) shall require such cooperation to the extent it would (i) cause any condition to Closing set forth in Article VII to fail to be satisfied or otherwise cause any breach of this Agreement, (ii) require the Company Group to take any action that will conflict with or violate any Laws prior to the Closing Date, (iii) result in the Company Group otherwise incurring any Liability or undertaking any obligation in connection with the Financing, (iv) result in any officer or director of the Company Group incurring any personal liability with respect to any matters relating to the Financing, or (v) require the Company Group to create or develop new reports or information or provide reports or furnish information other than in the form in which the reports or information currently exists.

(c) Buyer shall use commercially reasonable efforts to obtain the Financing within sixty (60) days from the date hereof (the “Initial Financing Period”). In the event Buyer has not obtained the Financing within the Initial Financing Period, Buyer may elect to extend the Financing period for up to one additional sixty (60) day period (the “First Additional Financing Period”). To exercise the First Additional Financing Period, Buyer must, no later than one Business Day prior to the expiration of the Initial Financing Period: (i) deliver written notice to the Company Group that it is exercising its right to extend the Initial Financing Period, and (ii) pay to the Company Group an amount equal to $2,500,000 (the “First Subsequent Deposit”) by wire transfer of immediately available funds to the account or accounts designated in writing by the Company Group. If Buyer has not obtained the Financing by the expiration of the First Additional Financing Period, Buyer may elect to extend the Financing period for up to one additional thirty (30) day period beginning on the date of the expiration of the First Additional Financing Period (the “Second Additional Financing Period”, and together with the First Additional Financing Period, the “Additional Financing Periods”). To exercise the Second Additional Financing Period, Buyer must, no later than one Business Day prior to the expiration of the First Additional Financing Period: (i) deliver written notice to the Company Group that it is exercising its right to further extend the First Additional Financing Period, and (ii) pay an additional amount equal to $2,500,000 (the “Second Subsequent Deposit” and together with the First Subsequent Deposit, the “Subsequent Deposits”) by wire transfer of immediately available funds to the account or accounts designated in writing by the Company Group. The Subsequent Deposits shall be held in accordance with Section 3.2(c). Buyer shall have the sole and absolute right to extend the Initial Financing Period and the First Additional Financing Period (if any) in accordance with this Section 6.10(c); provided, however, Buyer’s obligation to consummate the transactions contemplated by this Agreement is not conditioned upon Buyer obtaining the Financing. Buyer’s failure to obtain the Financing in accordance with the terms of this Agreement, including within the Initial Financing Period and any Additional Financing Period, as applicable, shall constitute a breach of this Agreement by Buyer; provided, further, that in the event of any breach of this Agreement by Buyer, the Company Group’s sole and exclusive remedy shall be to terminate this Agreement in accordance with Section 8.1 and Section 8.2 and, upon such termination, retain the Deposit and any Subsequent Deposits as liquidated damages and not as a penalty, except in the case of Fraud by the Company Group or termination by Buyer pursuant to Section 8.1(c) (requiring the Deposit and any Subsequent Deposits to be refunded to Buyer). The Parties acknowledge and agree that such liquidated damages are a reasonable estimate of the Company Group’s anticipated damages and shall be in full satisfaction of any liability of Buyer under this Agreement in connection with such breach and termination. If Buyer does not timely deliver the notices under Section 6.10(c) above and make the payments required by Section 6.10(c), then there will not be any First Additional Financing Period or Second Additional Financing Period, as applicable.

(d) After the Closing, Buyer will use its commercially reasonable efforts to obtain, as soon as reasonably practicable, financing, whether debt or equity financing, sufficient to either (1) pay in full all amounts due under the Note or (2) pay off its existing indebtedness (expect for the Note) and, in the case of (2), such financing to be on terms that do not require the Company Group to be a party to any agreement under which its rights under the Note are subordinate to any third party and allow for the Company Group to obtain a first position lien on the Acquired Assets as security for the Note.

6.11 Tax Matters. The Company Group and Buyer will use commercially reasonable efforts to (a) provide each other with such assistance as may reasonably be requested by any of them in connection with the preparation of any Tax Return, or any audit or other examination by any taxing authority or judicial or administrative proceedings relating to Liability for Taxes, (b) retain and provide each other with any records or other information that may be relevant to such Tax Return, audit or examination, proceeding or determination, and (c) provide each other with any final determination of any such audit or examination, proceeding or determination that affects any amount required to be shown on any Tax Return of the other for any period.

6.12 Bulk Sales Law. Buyer and the Company Group hereby waive compliance with any applicable bulk sales laws, including Article 6 of the New York Uniform Commercial Code, in connection with the transactions contemplated by this Agreement. The Company Group shall be solely responsible for any Liability arising out of the failure to comply with such laws.

6.13 Employee Matters.

(a) Following the date hereof but prior to Closing, the Company Group shall use its commercially reasonable efforts to make available to Buyer the Business Employees for screening with respect to potential employment by Buyer following the Closing, and shall deliver to Buyer all information reasonably requested by Buyer concerning such Business Employees to the extent permitted under all applicable Laws. At least 10 days prior to the Closing, Buyer shall deliver to the Company Group a schedule setting forth the Business Employees that shall be offered employment with Buyer following the Closing (such employees set forth therein, the “Offered Employees”) and, Buyer shall offer employment to the Offered Employees with such employment to take effect as of the first day following the Closing Date. An Offered Employee who accepts such offer and successfully completes Buyer’s standard pre-employment screening shall become an employee of Buyer on the first day following the Closing Date (such an employee is hereinafter referred to as a “Transferred Employee”). Effective as of the first Business Day of the calendar month following the calendar month in which the Closing Date occurs, each Transferred Employee shall commence to participate in Buyer’s employee benefit plans on the same or substantially similar basis as Buyer’s other similarly situated employees. For the period from the Closing Date through the calendar date immediately preceding the first Business Day of the calendar month following the calendar month in which the Closing Date occurs, the Transferred Employees shall continue to participate in the medical, dental, and vision benefit plans of the Company Group set forth on Schedule 6.13(a) on the same terms and conditions as in effect as of immediately prior to the Closing Date (other than the requirement that the Transferred Employee be an employee of the Company Group) to the extent permitted by such benefit plans and applicable Law; provided, however, the Company Group covenants and agrees to take the commercially reasonable steps required to cause such benefit plans to continue such coverage for the Transferred Employees. Buyer will reimburse the Company Group for a pro rata portion of the Company Group’s monthly cost of the benefit plans set forth on Schedule 6.13(a) related to coverage for the Transferred Employees for the period from the Closing Date through the calendar date immediately preceding the first Business Day of the calendar month following the calendar month in which the Closing Date occurs.

(b) Buyer (or any legal successor) will have sole discretion over the promotion, retention, termination and other terms and conditions of the employment of the Transferred Employees after the Closing Date.

(c) Except as otherwise required pursuant to applicable Law, Buyer will only be responsible for making COBRA continuation coverage under Section 4980B of the Code available to the Transferred Employees and their dependents where the qualifying event as defined in Section 4980B of the Code occurs after the Closing Date.

(d) At Closing, the Company Group shall terminate all Transferred Employees and, with respect to such termination, shall be responsible for any and all salary, wages, benefits, severance obligations and other obligations owed to such Transferred Employees (including cashing out the accrued vacation and paid time-off of all Transferred Employees) no later than promptly following their termination of employment with the Company Group.

(e) Buyer shall not be obligated to recognize a Transferred Employee’s service with the Company Group for the purpose of accruing benefits under any defined benefit pension plan, if any, but shall recognize such service for the purpose of determining eligibility for and vesting under any defined contribution retirement plan maintained by Buyer and for computing entitlement to vacations, severance and sick pay, if any, under any plan, policy or arrangement of Buyer, to the extent permitted under applicable Law; provided, however, that any severance and/or vacation benefits payable upon a Transferred Employee’s termination will be based on the Transferred Employee’s actual years of service with Buyer beginning on the Closing Date.

(f) This Section 6.13 is an agreement solely between the Company Group and Buyer. Nothing in this Section 6.13, whether express or implied, shall be considered to be a contract between the Company Group or Buyer, on the one hand, and any other Person, on the other hand, or shall confer upon any employee of the Company Group, any employee of Buyer, any Transferred Employee or any other Person, any rights or remedies that such Person did not already have, including, (i) any right to employment or recall; (ii) any right to continued employment of any specified Person; or (iii) any right to claim any particular compensation, benefit or aggregation of benefits of any kind or nature whatsoever. Further, nothing in this Section 6.13 shall be deemed or construed to be an amendment or other modification of any Employee Benefit Plan or Buyer’s employee benefit plan.

6.14 Cooperation and Further Assurances. After the Closing, (a) each of the Parties shall, and shall cause its Affiliates to, execute and deliver such additional documents, instruments, conveyances and assurances and take such further reasonable actions as may be required to carry out the provisions hereof and give effect to the transactions contemplated by this Agreement and (b) the Company Group will execute and deliver to Buyer such further instruments of conveyance and transfer as Buyer may reasonably request in order to fully convey and transfer the Acquired Assets to Buyer and for aiding, assisting, collecting and reducing to possession any of the Acquired Assets and exercising rights with respect thereto, including but not limited to, fully and effectively transfer, assign, and vest in Buyer (or its designated Affiliate) all right, title, and interest in and to the Acquired Intellectual Property, including the recordation of such transfers with the United States Patent and Trademark Office, the United States Copyright Office, and any other relevant Governmental Authorities or registration bodies.

6.15 Release. Effective as of the Closing, (a) the Company Group, on behalf of itself and its Affiliates, and each of its successors and assigns, hereby irrevocably and unconditionally releases and forever discharges Buyer and its Affiliates, and each of their respective past, present, and future officers, directors, managers, members, equityholders, employees, agents, Representatives, successors, and assigns (collectively, the “Buyer Released Parties”), and (b) Buyer, on behalf of itself and its Affiliates, and each of their respective successors and assigns, hereby irrevocably and unconditionally releases and forever discharges the Company Group and its Affiliates, and each of their respective past, present, and future officers, directors, managers, members, equityholders, employees, agents, representatives, successors, and assigns (collectively, the “Company Released Parties”), from any and all rights, actions, causes of action, claims, demands, liabilities, damages, judgments, and obligations of any kind or nature whatsoever, whether direct or indirect, known or unknown, accrued or unaccrued, suspected or unsuspected, liquidated or unliquidated, or due to become due, fixed, matured, or contingent, and whether arising at law or in equity, that any such releasing party ever had, now has, or may hereafter have against the applicable Buyer Released Party or Company Released Party, as applicable, in each case based upon facts, circumstances, or occurrences solely to the extent that the same relate to the operation of the Acquired Business or the Acquired Assets. Notwithstanding the foregoing, nothing in this Section 6.15 shall release, waive, or limit any claims or rights of either party (i) under this Agreement or any Transaction Document, or (ii) relating to Fraud.

6.16 Post-Closing Warranty Claims. Following the Closing, Buyer shall use commercially reasonable efforts to process, administer, and perform warranty claims relating to the Acquired Assets that arise after the Closing Date but relate to sales prior to the Closing, at the sole cost and expense of the Company Group, notwithstanding that such warranty claims constitute Excluded Liabilities. The Company Group shall reimburse Buyer for any out-of-pocket costs, expenses, or payments incurred by Buyer in connection with such warranty claims within five (5) Business Days following written demand therefor, which demand shall include reasonable supporting documentation. If the Note remains outstanding at the time any such reimbursement is due, such reimbursement shall be made by setoff against amounts then owed by Buyer under the Note. If the Note is no longer outstanding, Buyer shall not be required to incur or advance any such costs, expenses, or payments if, in Buyer’s reasonable discretion, the estimated aggregate amount of such out-of-pocket costs with respect to any single warranty claim is likely to exceed $25,000, unless the Company Group agrees to advance such costs, expenses, or payments. The Parties shall cooperate in good faith with respect to the handling and resolution of any such warranty claims, and Buyer shall keep the Company Group reasonably informed of the status of such claims upon request.

6.17 Fourth Dimension Spine Assets. During the Interim Period and for one year following the Closing Date, the Company Group shall use, and shall cause its Subsidiaries and Affiliates to use, commercially reasonable efforts to identify and locate all tangible and intangible (if any) assets which constitute the Fourth Dimension Spine Assets. To the extent any such Fourth Dimension Spine Assets are identified by the Company Group or any of their Affiliates following the Closing Date, the Company Group shall transfer, assign, convey and deliver, or cause its Affiliates to transfer, assign, convey and deliver, such Fourth Dimension Spine Assets to Buyer for no additional consideration and shall execute and deliver to Buyer such further instruments of conveyance and transfer as Buyer may request in order to fully convey and transfer such Fourth Dimension Spine Assets to Buyer.

ARTICLE VII

CONDITIONS PRECEDENT

7.1 Mutual Conditions of the Obligations the Parties. The respective obligations of each of Buyer and the Company Group to effect the transactions contemplated by this Agreement are subject to the satisfaction or waiver (if permissible under applicable Law) at or prior to the Closing of each of the following conditions:

(a) no statute, rule, regulation, executive Order, decree, temporary restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction or other Governmental Entity or other legal restraint or prohibition preventing the consummation of the transactions contemplated by this Agreement shall be pending or in effect, and no Action to challenge the consummation of the transactions contemplated by this Agreement shall be pending; and

(b) The consummation of the transactions contemplated by the International Purchase Agreement shall have occurred, such that, for the avoidance of doubt, the closing thereof and the Closing of this Agreement shall occur simultaneously.

7.2 Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement are subject to the satisfaction, or waiver (if permissible under applicable Law) by Buyer, at or prior to the Closing of the following additional conditions:

(a) (i) each of the representations and warranties of the Company Group set forth in Section 4.1 (Organization; Good Standing), Section 4.2 (Authorization and Effect), Section 4.3 (Non-Contravention), Section 4.10(a) (Title of Acquired Assets), Section 4.11 (Coflex Business) Section 4.19 (Employee Benefit Plans), Section 4.20 (Taxes) and Section 4.24 (Solvency) (collectively, the “Company Group Fundamental Representations”) 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 for such representations and warranties that are made solely as of an earlier date, in which case such representations and warranties will be true and correct in all respects as of such other date), except: (A) with respect to the Company Group Fundamental Representation set forth in Section 4.11, where the failure of such Company Group Fundamental Representation to be true and correct as of the aforementioned periods would not have more than a de minimis effect on the Acquired Business, and (B) with respect to the Company Group Fundamental Representations set forth in Section 4.19 and Section 4.20, where the failure of such Company Group Representation to be true and correct as of the aforementioned periods would not have a Material Adverse Effect, and (ii) each of the other representations and warranties of the Company Group set forth in this Agreement shall be true and correct in all respects (without giving effect to any limitation indicated by the words “Material Adverse Effect,” “in all material respects,” “in any material respect,” “material,” or “materially”) as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except for such representations and warranties that are made solely as of an earlier date, in which case such representations and warranties will be true and correct in all respects as of such other date), except where the failure of such other representations and warranties to be true and correct as of the aforementioned periods, individually or in the aggregate, has not had and would not be reasonably expected to have a Material Adverse Effect;

(b) the Company Group must have performed or complied in all material respects with all covenants, obligations and agreements required to be performed by it or complied with by it under this Agreement at or prior to the Closing;

(c) there shall not have been any change, condition, event or development since the date of this Agreement that, individually or in the aggregate, has caused or would reasonably be expected to cause a Material Adverse Effect;

(d) Buyer shall have received the items to be delivered by the Company Group pursuant to Section 3.4;

(e) Buyer shall have obtained Permits listed on Schedule 7.2(e); and

(f) The Company Group shall have delivered to Buyer a certificate, dated as of the Closing Date, executed by a duly authorized officer of each member of the Company Group, certifying the satisfactions of the conditions set forth in Section 7.2(a), Section 7.2(b), and Section 7.2(c).

7.3 Conditions to Obligations of the Company Group. The obligations of the Company Group to effect the transactions contemplated by this Agreement are subject to the satisfaction, or waiver (if permissible under applicable Law) by the Company Group, at or prior to the Closing of the following additional conditions:

(a) (i) each of the representations and warranties of Buyer set forth in Section 5.1 (Organization; Good Standing), Section 5.2 (Authorization and Enforceability), Section 5.5 (Solvency), and Section 5.6 (Sufficient Funds) (collectively, the “Buyer Fundamental Representations”, and together with the Company Group Fundamental Representations, the “Fundamental Representations”) 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 for such representations and warranties that are made solely as of an earlier date, in which case such representations and warranties will be true and correct in all respects as of such other date), and (ii) each of the other representations and warranties of Buyer set forth in this Agreement shall be true and correct in all respects (without giving effect to any limitation indicated by the words “Material Adverse Effect,” “in all material respects,” “in any material respect,” “material,” or “materially”) as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except for such representations and warranties that are made solely as of an earlier date, in which case such representations and warranties will be true and correct in all respects as of such other date), except where the failure of such other representations and warranties to be true and correct as of the aforementioned periods, individually or in the aggregate, has not had and would not be reasonably expected to have a material adverse effect on Buyer’s ability to consummate the transactions contemplated by this Agreement;

(b) Buyer must have performed or complied in all material respects with all covenants, obligations and agreements required to be performed by it or complied with by it under this Agreement at or prior to the Closing;

(c) the Company Group shall have received the items to be delivered by Buyer pursuant to Section 3.5 and the payments by Buyer required under Section 3.2 shall be made at Closing; and

(d) Buyer shall have delivered to the Company Group a certificate, dated as of the Closing Date, executed by a duly authorized officer of Buyer, certifying the satisfaction of the conditions set forth in Section 7.3(a) and Section 7.3(b).

ARTICLE VIII

TERMINATION

8.1 Termination. This Agreement may be terminated, and the transactions contemplated hereby may be abandoned at any time prior to the Closing:

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

(b) by Buyer, on the one hand, or the Company Group, on the other hand, if the Closing shall not have occurred on or prior to the Termination Date; provided, however, that a Party’s right to terminate this Agreement pursuant to this Section 8.1(b) shall not be available to such terminating Party if the primary cause of the failure to consummate the Closing is a breach by such terminating Party of its representations, warranties, obligations or covenants under this Agreement; provided, further, however, that this provision may be waived by Buyer if the International Purchase Agreement is terminated by Buyer pursuant to Section 8.1(c) thereof, or by the Seller (as defined in the International Purchase Agreement) if the International Purchase Agreement is terminated by the Seller pursuant to Section 8.1(d) thereof;

(c) by Buyer, if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company Group contained in this Agreement, or any such representation or warranty shall be untrue, such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied and, in either such case, such breach or condition is not curable or, if curable, is not cured prior to the earlier of (i) 30 days after written notice thereof is given by Buyer to the Company Group or (ii) the Termination Date; provided, however, that Buyer shall not have the right to terminate this Agreement pursuant to this Section 8.1(c) if Buyer is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and such breach would be the primary cause of a condition set forth in Section 7.1 or Section 7.2 not to be satisfied;

(d) by the Company Group, if there shall have been a breach of any representation, warranty, covenant or agreement on the part of Buyer contained in this Agreement, or any such representation or warranty shall be untrue, such that the conditions set forth in Section 7.1 or Section 7.3 would not be satisfied and, in either such case, such breach or condition is not curable or, if curable, is not cured prior to the earlier of (i) 30 days after written notice thereof is given by the Company Group to Buyer or (ii) the Termination Date; provided, however, that the Company Group shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company Group is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and such breach would be the cause of a condition set forth in Section 7.1 or Section 7.3 not to be satisfied;

(e) by either Buyer, on the one hand, or by the Company Group, on the other hand, if any Governmental Authority shall have issued an Order or ruling or taken any other Action permanently enjoining, restraining or otherwise prohibiting the Closing and such Order or ruling or other Action shall have become final and nonpeelable;

(f) by Buyer if the International Purchase Agreement is terminated in accordance with its terms for any reason other than pursuant Section 8.1(d) thereof; or

(g) by the Company Group if the International Purchase Agreement is terminated in accordance with its terms for any reason other than pursuant to Section 8.1(c) thereof pursuant to Section thereof.

8.2 Notice and Effect of Termination.

(a) Any Party desiring to terminate this Agreement pursuant to Section 8.1 (the “Terminating Party”) shall give written notice of such termination to the other Parties to this Agreement; provided, however, that in the event the Terminating Party validly delivers a written notice of termination pursuant to the terms hereof, then the non-Terminating Party shall thereafter have no right to terminate this Agreement under any provision hereof, regardless of whether the conditions permitting such termination would otherwise be satisfied, such that, for the avoidance of doubt, once the Terminating Party has exercised its right to terminate this Agreement by delivering written notice in accordance with the applicable provisions herein, the non-Terminating Party shall have no right to terminate this Agreement, and such rights of the non-Terminating Party shall be deemed waived and of no further force or effect.

(b) In the event of the termination of this Agreement pursuant to Section 8.1, except as set forth in this Section 8.2(b), this entire Agreement shall forthwith become void (and there shall be no liability or obligation on the part of Buyer, the Company Group or its Representatives) with the exception of, (i) liability of the Company Group for any willful breach of this Agreement prior to such termination or in the case of Buyer or the Company Group, Fraud (which the Company Group and Buyer shall not be relieved from by virtue of the termination of this Agreement in accordance with its terms), (ii) Section 3.2(c), and the Company Group’s right to retain the Deposit and any Subsequent Deposits (to the extent received by the Company Group pursuant to Section 6.10(c)), (iii) the prohibition on public disclosure in Section 6.8, (iv) this Section 8.2, and (v) Article X, which will each survive the termination of this Agreement in accordance with their respective terms.

ARTICLE IX

SURVIVAL; INDEMNIFICATION

9.1 Survival. Subject to the limitations and other provisions of this Agreement, the representations and warranties of the Parties contained in this Agreement shall survive the Closing and will remain operative and in full force and effect after the execution and delivery of this Agreement and the consummation of the transactions contemplated herby for a period of 15 months after the Closing Date, except that (a) the Fundamental Representations shall survive for a period of 4 years after the Closing Date; provided however, that the representations and warranties of the Company Group in Section 4.19 (Employee Benefit Plans) and Section 4.20 (Taxes) shall survive until 30 days after the expiration of the applicable statute of limitations applicable to claims regarding the subject matter of such representations and warranties (including any extensions or waivers thereof). None of the covenants or other agreements contained in this Agreement shall survive the Closing other than those which by their terms contemplate performance after the Closing Date (including the indemnification provisions in this Article IX), and each such surviving covenant and agreement shall survive the Closing for the period contemplated by its terms or, if no period is contemplated in this Agreement, for a period of 6 years after the Closing Date. Upon termination and expiration of any representation, warranty or covenant, all indemnification obligations with respect to such representation, warranty or covenant shall likewise terminate and expire; except to the extent that, no later than the date of such expiration or termination a claim shall have been given for any breach thereof. Notwithstanding the foregoing, any claims asserted in writing to the Indemnifying Party prior to the expiration of the applicable survival period shall not thereafter be barred by the expiration of such survival period and such claims shall survive until finally resolved.

9.2 Indemnification by the Company Group. Subject to the other terms and conditions of this Article IX, the Company Group shall, jointly and severally, indemnify, defend, and hold Buyer, its Affiliates, and their respective managers, officers, directors, employees, agents, successors and assigns (collectively, the “Buyer Indemnitees”) harmless from and against, and shall pay and reimburse each of them for, any and all Losses that any Buyer Indemnitee may suffer or incur as a result of or relating to:

(a) any breach of, or any inaccuracy in, any representation or warranty made by the Company Group in this Agreement;

(b) any breach or non-fulfillment of any covenant, agreement or obligation made or to be performed by the Company Group pursuant to this Agreement or the Transaction Documents; or

(c) any Excluded Liability except for any Liability or Liabilities of any of the Company Group’s Affiliates that are being acquired by Buyer under the International Purchase Agreement (i.e., Paradigm Spine GmbH and its subsidiaries).

9.3 Indemnification by Buyer.

Subject to the other terms and conditions of this Article IX, Buyer shall indemnify, defend, and hold the Company Group, its Affiliates, and their respective managers, officers, directors, employees, agents, successors and assigns (collectively, the “Company Group Indemnitees”) harmless from and against, and shall pay and reimburse each of them for, any and all Losses that any Company Group Indemnitee may suffer or incur as a result of or relating to:

(a) any breach of, or any inaccuracy in, any representation or warranty made by Buyer in this Agreement;

(b) any breach or non-fulfillment of any covenant, agreement or obligation made or to be performed by Buyer pursuant to this Agreement or the Transaction Documents; or

(c) the failure of Buyer to pay, perform and/or discharge any Assumed Liability when due.

9.4 Limitations.

(a) Notwithstanding anything to the contrary herein, the Indemnifying Party shall not be liable to the Indemnified Party (i) for any Losses arising from Section 9.2(a) or Section 9.3(a), as the case may be, unless and until the aggregate amount of all such Losses exceeds $250,000 (the “Deductible”), in which event the Indemnified Party shall be entitled to indemnification for only such Losses in excess of the Deductible, or (ii) for any Losses in excess of an aggregate amount equal to $2,000,000 (the “Cap”).

(b) Notwithstanding the foregoing: (i) the limitations set forth in Section 9.4(a) shall not apply to any breach or of (A) any Fundamental Representations, or (B) in the case of Fraud.

(c) In no event shall the Company Group’s maximum aggregate liability to the Buyer Indemnitees with respect to Losses under Section 9.2(a) exceed the Purchase Price, except for such Losses arising out of Fraud.

(d) No Indemnifying Party shall be liable to Indemnified Party for any punitive, exemplary, or similar damages, except to the extent such damages are awarded by a Governmental Authority in connection with a Third-Party Claim.

(e) For purposes of determining whether a breach or an alleged breach has occurred and the amount of any Losses for which the Buyer Indemnitees or the Company Group Indemnitees, as the case may be, are entitled to claim indemnification, all “materiality,” “in all material respects,” “Material Adverse Effect” and qualifiers of similar import will be excluded from and given no effect in each representation and warranty and each covenant and agreement; provided, however, that such qualifiers shall not be disregarded where they are part of a defined term (e.g., “Material Customer”) or where the context otherwise requires.

(f) Notwithstanding the foregoing, the limitations set forth in this Section 9.4 shall not apply to claims based on a Party’s Fraud. Solely with respect to actions grounded in Fraud, (A) the right of a party to be indemnified and held harmless pursuant to the indemnification provisions in this Agreement shall be in addition to and cumulative of any other remedy of such party at law or in equity, and (B) no party shall, by exercising any remedy available to it under this Article IX, be deemed to have elected such remedy exclusively or to have waived any other remedy, whether at law or in equity, available to it.

(g) Payment by an Indemnifying Party pursuant to Section 9.2 or Section 9.3 in respect of any Losses shall be net of any insurance proceeds or third party indemnity or contribution payments actually received by the Indemnified Party in respect of such Losses, less any deductibles, costs and expenses incurred in connection with making any claim or pursuing or obtaining such insurance proceeds or third party indemnity or contribution payments, and related increases in insurance premiums or other chargebacks. If any such amounts described in this Section 9.4(g) are received by an Indemnified Party after being fully indemnified for the relevant Losses hereunder, such amounts will be promptly paid to the Company Group or Buyer, as applicable.

(h) For purposes of applying the Cap and Deductible and the limitation set forth in Section 9.4(c) above, all Losses indemnifiable under this Agreement and Section 9.2(a) of the International Purchase Agreement shall be aggregated and applied against the Cap, Deductible and the limitation set forth in Section 9.4(c) above. By way of example only and in no way in limitation of the foregoing, if Buyer incurs $200,000 in indemnifiable Losses under this Agreement and Buyer or its Affiliates incurs $50,000 in indemnifiable Losses under the International Purchase Agreement, such combined Losses shall be aggregated for purposes of satisfying the Deductible and counting against the Cap and the limitation set forth in Section 9.4(c) above. For the avoidance of doubt, no Indemnified Party shall be entitled to double recovery for any indemnifiable Losses even though such Losses, or any other incident, may have resulted from the breach of more than one of the representations, warranties, covenants and agreements, or any other indemnity, provided in this Agreement or the International Purchase Agreement.

(i) Notwithstanding any provision to the contrary contained in this Agreement, the Parties hereby acknowledge and agree that Buyer’s first source of recovery for any and all indemnifiable Losses for which the Company Group is liable pursuant to this Article IX shall be by offset against any amounts of principal and accrued interest, if any, remaining under the Note. Buyer shall be entitled to reduce such unpaid principal balance and accrued but unpaid interest in an amount equal to the indemnifiable Losses for which the Company Group is liable pursuant to the provisions of this Article IX. Buyer Indemnitees shall only have the right to recover directly from the Company Group if there is no outstanding principal amount or accrued but unpaid interest under the Note or to the extent the Losses for which the Company Group is liable pursuant to this Article IX exceed the then-outstanding principal amount and accrued but unpaid interest under the Note (in which event, Buyer Indemnitees may only recover directly from the Company Group in an amount equivalent to such excess).

9.5 Matters Involving Third Party Claims.

(a) Promptly after the receipt by any Company Group Indemnitee or Buyer Indemnitee (as the case may be, an “Indemnified Party”) of notice of the commencement of any action by any Person who is not a party to this Agreement (such action, a “Third Party Claim”), such Indemnified Party shall, if a claim with respect thereto is to be made against any party obligated to provide indemnification pursuant to this Article IX (the “Indemnifying Party”), give such Indemnifying Party prompt written notice (but in any event, to the extent there is a deadline to respond to such Third Party Claim under applicable Law, no later than five (5) Business Days prior to the date of such deadline) of such Third Party Claim, describing in reasonable detail the circumstances then known to such Indemnified Party and shall include copies of all material written documentation received by the Indemnified Party relating thereto (to the extent not privileged or subject to an obligation of confidentiality); provided, that the failure of the Indemnified Party to provide such notice shall not relieve the Indemnifying Party of its indemnification obligations hereunder, except to the extent that such failure to give notice shall materially and adversely prejudice any defense or claim available to the Indemnifying Party.

(b) The Indemnifying Party, within ten (10) days after receiving the Indemnified Party’s notice of the Third Party Claim, shall acknowledge in writing to the Indemnified Party whether the Indemnifying Party will assume the defense of such Third Party Claim with its own counsel and at the Indemnifying Party’s sole expense; provided, that, in order to assume the defense of such Third Party Claim, the Indemnifying Party must reasonably believe that it may be responsible for the Losses relating to such Third Party Claim (based on the facts then known) and if, at any time during the course of assuming the defense of such Third Party Claim the Indemnifying Party reasonably believes it is not responsible for such Losses, then it will notify the Indemnified Party in writing and tender defense of such claim to the Indemnified Party at such time provided that the Indemnifying Party shall not be entitled to assume or continue control of the defense of any Third Party Claim if (i) the Third Party Claim relates to or arises in connection with any criminal proceeding, (ii) the Third Party Claim solely seeks non-monetary damages, including an injunction, specific performance or equitable relief against any Indemnified Party, (iii) settlement of, or an adverse judgment with respect to, the Third Party Claim is reasonably expected to establish a precedential custom or practice materially adverse to the continuing business interests of the Indemnified Party, or (iv) the Indemnified Party has determined in good faith that there would be a conflict of interest or other materially detrimental or inappropriate matter associated with joint representation of the indemnification proceeding.

(c) If the Indemnifying Party assumes the defense of any Third Party Claim, (i) it shall not, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed), settle, compromise or offer to settle or compromise, or consent to any order or judgment with respect to the Third Party Claim, except as provided in this Section 9.5(c); (ii) the Indemnified Party shall have the right (but not the obligation) to participate in the defense of such Third Party Claim and to employ, at its own expense, counsel separate from counsel employed by the Indemnifying Party at its own cost and expense; and (iii) it shall actively and diligently defend the Third Party Claim and keep the Indemnified Party fully and timely apprised of all developments, including settlement offers, with respect to the Third Party Claim. If a firm offer is made to settle a Third Party Claim without leading to liability or the creation of a financial or other obligation on the part of the Indemnified Party and provides, in customary form, for the unconditional release of each Indemnified Party from all liabilities and obligations in connection with such Third Party Claim and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party shall give written notice to that effect to the Indemnified Party. If the Indemnified Party fails to provide such consent within ten (10) Business Days after receiving written notice of such settlement offer, the Indemnifying Party may continue to contest or defend such Third-Party Claim and, in such event, the maximum liability of the Indemnifying Party as to such Third-Party Claim shall not exceed the amount of such settlement offer.

(d) If the Indemnifying Party does not assume the defense of any Third Party Claim, or if any condition to the Indemnifying Party’s assumption of the defense of any Third Party Claim set forth above becomes unsatisfied, the Indemnified Party may defend against such claim in such manner and on such terms as it in good faith deems appropriate, provided that the Indemnified Party shall not agree to any settlement without the written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed) and shall be entitled to indemnification in respect thereof in accordance with Section 9.2 or Section 9.3, as applicable. In no event shall the Indemnified Party settle any Third Party Claim while the defense thereof is controlled by the Indemnifying Party pursuant to and in accordance with this Section 9.5(d) without the consent of the Indemnifying Party (such consent not to be unreasonably withheld, conditioned or delayed).

9.6 Matters Involving Direct Claims. Any claim by an Indemnified Party on account of Losses that does not result from a Third Party Claim (a “Direct Claim”) will be asserted by giving the applicable Indemnifying Party prompt written notice thereof after becoming aware of the claim, describing in reasonable detail the circumstances then known to such Indemnified Party and shall include copies of all material written documentation received by the Indemnified Party relating thereto (to the extent not privileged or subject to an obligation of confidentiality); provided, that the failure of the Indemnified Party to provide such notice shall not relieve the Indemnifying Party of its indemnification obligations hereunder, except to the extent that such failure to give notice shall materially and adversely prejudice any defense or claim available to the Indemnifying Party. The Indemnifying Party shall have twenty (20) days after receipt of such written notice to respond in writing to such Direct Claim (“Claim Review Period”), which response shall set forth whether the Indemnifying accepts or rejects any portion of such Direct Claim, and to the extent such response rejects any portion of such Direct Claim, such response shall provide reasonable detail, and provide reasonable supporting information and/or documentation (to the extent not privileged or subject to an obligation of confidentiality) supporting such rejection. If the Indemnifying Party rejects all or any portion of the Direct Claim before the expiration of the Claim Review Period, the Indemnified Party and the Indemnifying Party shall negotiate in good faith to resolve the disputed portion of the Direct Claim for a period of thirty (30) days (the “Claim Resolution Period”). If the Indemnifying Party and the Indemnified Party fail to reach an agreement with respect to any disputed portion of the Direct Claim during the Claim Resolution Period, then the Indemnified Party may commence an action in accordance with Section 10.9.

9.7 Indemnification Payments. Once any Loss is agreed to by the Indemnifying Party or is finally determined to be payable by a final, non-appealable judgment pursuant to this Article IX, the Indemnifying Party shall pay the full amount of such Loss within 15 Business Days by wire transfer of immediately available funds; provided, however, that in the event the Company Group is the Indemnifying Party and the Note remains outstanding and unpaid, Buyer shall, prior to seeking the full amount of such Loss, offset such Loss against the Note pursuant to Section 9.4(i). Subject to Section 9.4(i), if the Indemnifying Party fails to make such payment within the applicable 15 Business Day period, the unpaid amount shall accrue interest from and including the date of such agreement or final adjudication to and including the date of payment at a rate per annum equal to 10.0%, calculated on the basis of a 365-day year and the actual number of days elapsed, without compounding. Any indemnity payments made pursuant to this Agreement shall be treated by the parties for all Tax purposes as an adjustment to the Purchase Price, unless otherwise required by applicable Law.

9.8 Sole Remedies. The Parties acknowledge and agree that from and after the Closing the rights of any Indemnified Party set forth in this Article IX shall be the sole and exclusive remedies of such Indemnified Party with respect to claims arising out of any breach of the representations, warranties, covenants and agreements contained in this Agreement, provided, however, that nothing herein shall (a) limit or restrict the rights of any Party to seek claims for equitable relief (including injunctive relief or specific performance) for any breach or threatened breach of any covenant or agreement to be performed at or after the Closing, (b) limit or restrict the rights of any party to enforce its rights under any other Transaction Document, or (c) preclude any party from asserting a claim based on Fraud.

ARTICLE X

MISCELLANEOUS

10.1 Expenses. Except as otherwise expressly provided herein, all costs and expenses, including, without limitation, fees and disbursements of counsel, financial advisors and accountants, incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such costs and expenses, whether or not the Closing shall have occurred.

10.2 Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given (a) when personally delivered, (b) when transmitted (except if not a Business Day, then the next Business Day) via email to the email address set out below (provided that, no “error” message or other notification of non-delivery is generated), (c) the day following the day (except if not a Business Day then the next Business Day) on which the same has been delivered prepaid to a reputable national (U.S.) overnight air courier service or (d) the third Business Day following the day on which the same is sent by certified or registered mail, postage prepaid. Notices, demands and communications, in each case to the respective parties, shall be sent to the applicable address set forth below, unless another address has been previously specified in writing by such party:

10.3 Interpretation. For purposes of this Agreement, (a) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole; (d) the ejusdem generis principle of construction shall not apply to this Agreement and general words shall not be given a restrictive meaning by reason of their being preceded or followed by words indicating a particular class of acts, matters or things or by examples falling within the general words; and (e) any information or documentation required to be made available, provided or delivered to Buyer by the Company Group prior to the date hereof pursuant to the terms of this Agreement or any other Transaction Document shall be deemed made available, provided and delivered to Buyer if such information or documentation has been posted to any data room (virtual, physical or otherwise) or similar information-sharing platform maintained by the Parties for the purposes of effectuating the transactions contemplated hereby. Unless the context otherwise requires, references herein: (x) to Articles, Sections, Disclosure Schedules and Exhibits mean the Articles and Sections of, and Disclosure Schedules and Exhibits attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Disclosure Schedules and Exhibits referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein. The headings contained in this Agreement are inserted for convenience only and shall not be considered in interpreting or construing any of the provisions contained in this Agreement.

10.4 Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

10.5 Entire Agreement. This Agreement and the other Transaction Documents constitute the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein and therein, and supersede all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements in the body of this Agreement and those in the other Transaction Documents, the Exhibits and Disclosure Schedules (other than an exception expressly set forth as such in the Disclosure Schedules), the statements in the body of this Agreement will control.

10.6 Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns. Neither party may assign its rights or obligations hereunder without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. No assignment shall relieve the assigning party of any of its obligations hereunder. Notwithstanding the foregoing, the Company Group may assign all their rights under this Agreement to the Company Group’s, or the Company Group’s Affiliates’, lender or lenders without the prior written consent of Buyer.

10.7 No Third-party Beneficiaries. Except as provided in Article IX, this Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

10.8 Amendment and Modification; Waiver. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

10.9 Governing Law; Submission to Jurisdiction; Waiver of Jury Trial.

(a) This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of Law provision or rule (whether of the State of Delaware or any other jurisdiction).

(b) ANY LEGAL SUIT, ACTION OR PROCEEDING ARISING OUT OF OR BASED UPON THIS AGREEMENT, THE OTHER TRANSACTION DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY SHALL PROPERLY AND EXCLUSIVELY LIE IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE, AND ANY STATE APPELLATE COURT THEREFROM WITHIN THE STATE OF DELAWARE (OR, IF THE COURT OF CHANCERY OF THE STATE OF DELAWARE DECLINES TO ACCEPT JURISDICTION OVER A PARTICULAR MATTER, ANY FEDERAL COURT WITHIN THE STATE OF DELAWARE), AND EACH PARTY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING. SERVICE OF PROCESS, SUMMONS, NOTICE OR OTHER DOCUMENT BY MAIL TO SUCH PARTY’S ADDRESS SET FORTH HEREIN SHALL BE EFFECTIVE SERVICE OF PROCESS FOR ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT IN ANY SUCH COURT. THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY OBJECTION TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR ANY PROCEEDING IN SUCH COURTS AND IRREVOCABLY WAIVE AND AGREE NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

(c) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT OR THE OTHER TRANSACTION DOCUMENTS IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER TRANSACTION DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, (B) SUCH PARTY HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.9(c).

10.10 Specific Performance. The Parties agree that irreparable damage for which monetary damages, even if available, would not be an adequate remedy, would occur in the event that the Parties do not perform the provisions of this Agreement (including failing to take such actions as are required of it hereunder to consummate this Agreement) in accordance with its specified terms or otherwise breach such provisions. Prior to the valid termination of this Agreement pursuant to Article VIII, the Parties shall be entitled to seek an injunction, specific performance and other equitable relief to prevent or cure breaches of this Agreement and to enforce specifically the terms and provisions hereof, this being in addition to any other remedy to which the Parties are entitled at Law or in equity. Each of the Parties agrees that it will not oppose the granting of an injunction, specific performance and other equitable relief when expressly available pursuant to the terms of this Agreement on the basis that (i) there is adequate remedy at Law or (ii) an award of specific performance is not an appropriate remedy for any reason at Law or in equity. Any Party seeking an injunction or injunctions to prevent breaches of this Agreement when expressly available pursuant to the terms of this Agreement and to enforce specifically the terms and provisions of this Agreement when expressly available pursuant to the terms of this Agreement shall not be required to provide any bond or other security in connection with any such Order or injunction.

10.11 Non-Recourse. All claims or causes of action (whether in Contract or in tort, in Law or in equity) that may be based upon, arise out of or relate to this Agreement or the Transaction Documents, or the negotiation, execution or performance of this Agreement or the Transaction Documents (including any representation or warranty made in or in connection with this Agreement or the Transaction Documents or as an inducement to enter into this Agreement or the Transaction Documents), may be made only against the entities that are expressly identified as Parties and parties thereto, except in the event of Fraud committed by such Non-Party Affiliate. No Person who is not a named party to this Agreement or the Transaction Documents, including any past, present or future director, manager, officer, employee, incorporator, member, partner, equityholders (including stockholders and optionholders), Affiliate, agents, attorney or representative of any named party to this Agreement or the other Transaction Documents or the sources of the Financing (“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) for any obligations or Liabilities arising under, in connection with or related to this Agreement or such other Transaction Document or for any claim based on, in respect of, or by reason of this Agreement or such other Transaction Document or the negotiation execution hereof or thereof, except for in the event of Fraud; and each Party waives and releases all such Liabilities, claims and obligations against any such Non-Party Affiliates, except in the event of Fraud committed by such Non-Party Affiliate. Non-Party Affiliates are expressly intended as third-party beneficiaries of this provision of this Agreement.

10.12 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

10.13 Authority of Xtant on behalf of the Company Group. Xtant shall have full authority to act on behalf of the Company Group in connection with all matters arising under or relating to this Agreement and the Transaction Documents, including: (a) the negotiation, execution, and delivery of any documents or instruments contemplated by this Agreement or the Transaction Documents; (b) the receipt and delivery of all notices, consents, waivers, and other communications; (c) the assertion or defense of indemnification claims; (d) the resolution of any disputes or claims arising under or relating to this Agreement or the Transaction Documents; and (e) the taking of any other action that Xtant deems necessary or advisable in connection with the Agreement or the transactions contemplated hereby. All actions, decisions, and communications of Xtant shall be binding upon the Company Group.

[Signature Page to Follow.]

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

Exhibit 2.2

EQUITY PURCHASE AGREEMENT

This Equity Purchase Agreement (this “Agreement”) dated July 7, 2025, by and between XTANT MEDICAL HOLDINGS, INC., a Delaware corporation (the “Seller”), PARADIGM SPINE GMBH, a German Gesellschaft mit beschränkter Haftung (the “Company”) and COMPANION SPINE, LLC, a Delaware limited liability company (“Buyer”). The Seller, the Company and Buyer are referred to in this Agreement individually as a “Party” and collectively as the “Parties.”

WHEREAS, Seller owns 100% of the issued and outstanding shares of equity securities of the Company, which shares (“Shares”) constitute all of the outstanding equity securities of the Company;

WHEREAS, the Seller is engaged in the operation of the Coflex Business in the United States, and the Company and its Subsidiaries are engaged in the operation of the Coflex Business outside the United States, which includes the Coflex Business as well as the design, manufacture, development, commercialization, or distribution of the “Hybrid Performance System™ 2.0” spinal fixation systems, and dynamic stabilization systems (the “OUS Coflex Business”);

WHEREAS, Seller wishes to sell to Buyer, and Buyer wishes to purchase from Seller, all of the Shares, on the terms and subject to the conditions set forth in this Agreement; and

WHEREAS, simultaneously with the execution of this Agreement, Seller and Buyer are entering into in an Asset Purchase Agreement, pursuant to which, among other things, the Seller will transfer and assign to the Buyer certain assets and rights related to the Coflex Business, as operated by the Seller within the United States (the “US Purchase Agreement” and such business the “US Coflex Business”).

NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

ARTICLE I

DEFINITIONS

The following terms have the meanings specified or referred to in this Article I:

“$” means the lawful currency of the United States.

“Accounting Standards” means the historical accounting methods, principles, practices, procedures and estimation methodologies set forth on Exhibit A attached hereto.

“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, investigations, notice of violation, proceeding, litigation, citation, summons or subpoena of any nature, civil, criminal, administrative, regulatory or otherwise, whether at Law or in equity.

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

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

“Alternative Transaction” has the meaning set forth in Section 6.5(a).

“Balance Sheet” has the meaning set forth in Section 4.5(a).

“Balance Sheet Date” has the meaning set forth in Section 4.5(a).

“Business Contracts” has the meaning set forth in Section 4.12(a).

“Business Day” means any day except Saturday, Sunday or any other day on which commercial banks located in New York, New York, are authorized or required by Law to be closed for business.

“Business Permits” has the meaning set forth in Section 4.17(a).

“Buyer” has the meaning set forth in the preamble.

“Buyer Assumed Taxes” means income Taxes imposed on a member of the Company Group for any time period beginning on or after January 1, 2025, including but not limited to any income Taxes attributable to: (i) the forgiveness of the Intra-Company Payables, or (ii) the Pre-Closing Intra-Company Restructuring.

“Buyer Fundamental Representations” has the meaning set forth in Section 7.3(a).

“Buyer Indemnitees” has the meaning set forth in Section 9.2.

“Buyer Released Parties” has the meaning set forth in Section 6.13.

“Buyer Returns” has the meaning set forth in Section 6.10(d).

“Buyer’s Proposed Calculations” has the meaning set forth in Section 2.7(a).

“Cap” has the meaning set forth in Section 9.4(a).

“Cash” means, at any given time, the actual cash balances, cash equivalents and marketable securities of the Company Group (including all third-party checks deposited or held in, and drafts and electronic transfers to, any accounts of the Company Group that have not yet cleared, in each case, so long as such check, draft or electronic transfer subsequently clear), net of (i) any checks, drafts or electronic transfers issued by the Company Group that have not yet cleared, and (ii) any cash that is subject to restrictions or limitations on use, repatriation or distribution by applicable Law or Contract (including any escrow security deposits with a third party and any other deposits).

“Claim Resolution Period” has the meaning set forth in Section 9.6.

“Claim Review Period” has the meaning set forth in Section 9.6.

“Closing” has the meaning set forth in Section 2.1.

“Closing Certificate” has the meaning set forth in Section 2.4(a).

“Closing Date” has the meaning set forth in Section 2.1.

“Closing Date Cash” means Cash of the Company Group as of the Closing Date.

“Closing Indebtedness” means the aggregate amount of Indebtedness of the Company Group as of immediately prior to the Closing.

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

“Coflex Business” means the design, manufacture, development, commercialization, or distribution of “Coflex” and “Cofix” spinal fixation systems and dynamic stabilization. .

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

“Company Group” means, collectively, the Company and each of the following Subsidiaries of the Company, including RTI Surgical Australia Pty, Ltd., an Australian company, Paradigm Spine Iberia SL, a Spanish company, Paradigm Switzerland AG, a Swiss company, Paradigm Spine Austria GmbH, an Austrian company, and, following the Pre-Closing Intra-Company Restructuring:, Paradigm Spine UK Limited, a United Kingdom limited company.

“Company Group Intellectual Property” means all Intellectual Property Assets, together with all other Intellectual Property used by the Company Group or otherwise necessary to the business of the Company Group, but expressly excludes any Intellectual Property that is owned or licensed by Seller or any of its Affiliates or Subsidiaries (excluding the Company Group).

“Confidential Information” has the meaning set forth in Section 6.8(c).

“Contracts” means all contracts, leases, deeds, mortgages, licenses, instruments, notes, commitments, undertakings, indentures, purchase order, work order, statement of work, commitment, assignment, certificate, option, joint ventures and all other agreements, commitments and binding arrangements, whether written or oral, to which a Person is a party or is otherwise bound.

“Deductible” has the meaning set forth in Section 9.4(a).

“Direct Claim” has the meaning set forth in Section 9.6.

“Disclosure Schedules” means the Disclosure Schedules delivered by the Seller and the Company concurrently with the execution and delivery of this Agreement.

“Disputed Amounts” has the meaning set forth in Section 2.7(c).

“Employee Benefit Plan” means each employee benefit plan and each other employment, individual consulting or independent contractor, retirement, supplemental retirement, excess benefit, pension, profit sharing, deferred compensation, severance, termination pay, salary continuation, bonus, incentive, tax gross-up, employee loan, change in control, transaction, sale bonus, retention, profits interest, phantom equity, equity option, equity appreciation right, restricted equity, deferred equity, or other equity or equity-based incentive, life, health, welfare, disability, accident, medical, dental, vision, cafeteria, flex spending, adoption assistance, dependent assistance, employee assistance, tuition, vacation, paid time off, hospitalization, sickness, death, fringe benefit or other compensation or benefit plan, program, policy, agreement or arrangement (whether written or oral, qualified or nonqualified, funded or unfunded), in each case, (x) that any member of the Company Group sponsors, maintains, contributes to or has any obligation to make contributions to, or (y) with respect to which any member of the Company Group has or could reasonably be expected to have any current potential or contingent Liability.

“Encumbrance” means any charge, claim, community property interest, pledge, condition, equitable interest, lien (statutory or other), option, security interest, mortgage, easement, encroachment, right of way, right of first refusal, limitation on transfer, use or assignment, or restriction of any kind, including any restriction on use, voting, transfer, receipt of income or exercise of any other attribute of ownership.

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

“Enterprise Value” means $1,700,000.

“Environmental Law” means any statute, rule, regulation, ordinance, order, decree or determination of a Governmental Authority (or any similar provisions having the force and effect of Law), and all common law in any way relating to pollution, protection of the environment, public or worker health or safety, or natural resources.

“Equity Securities” means (a) in the case of a corporation, any and all shares (however designated) of capital stock of such corporation, (b) in the case of an association or business entity, any and all shares, interests, participations, rights or other equity equivalents (however designated) of or in such association or business entity, (c) in the case of a partnership or limited liability company, any and all partnership or membership interests (whether general or limited) of such partnership or limited liability company, (d) in any case, any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person, the right to designate, vote on or approve one or more members of the board of directors, board of managers or other governing body or the right to vote on, approve or consent to matters submitted to the holders of equity securities of the issuing Person for vote, approval or consent (as applicable) and (e) in any case, any right to acquire any of the foregoing (including by exchange, exercise or conversion of other securities).

“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

“Facilities” has the meaning set forth in Section 4.21(b).

“Final Purchase Price” means an amount in cash equal to (a) the Enterprise Value plus (b) the Closing Date Cash minus (c) the Closing Indebtedness, plus (d) to the extent the Net Working Capital exceeds the Target Net Working Capital, the Net Working Capital Adjustment, minus (e) to the extent the Target Net Working Capital exceeds the Net Working Capital, the Net Working Capital Adjustment, in each case, as finally determined pursuant to Section 2.7.

“Financial Statements” has the meaning set forth in Section 4.5(a).

“Financing” has the meaning set forth in Section 6.9(a).

“Fraud” means an intentional misrepresentation with respect to the representations and warranties expressly set forth in Article III (with respect to the Seller), Article IV (with respect to the Seller) or Article V (with respect to Buyer) that constitutes common law fraud (excluding constructive fraud) under the laws of the State of Delaware.

“Fundamental Representations” has the meaning set forth in Section 7.3(a).

“GAAP” means generally accepted accounting principles as in effect in the United States from time to time.

“Governmental Authority” means any federal, state, provincial, municipal, local or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority, or any arbitrator, court or tribunal of competent jurisdiction.

“Hazardous Material” shall mean any substance, waste or material that is listed or defined under, regulated by or may reasonably give rise to standards of conduct or Liability pursuant to any applicable Environmental Laws, including petroleum or petroleum by-products, asbestos, polychlorinated biphenyls, noise, odor, mold or radiation.

“Identified Employees” has the meaning set forth in Section 4.18(a).

“Indebtedness” means (without duplication) any of the following Liabilities: (a) any indebtedness of any member of the Company Group for borrowed money or issued in substitution or exchange for indebtedness of any member of the Company Group for borrowed money, whether current, secured or unsecured, (b) any indebtedness evidenced by any loan agreement, note, bond, debenture or other debt security or similar instrument, (c) all Liabilities for the deferred or unpaid purchase price of property, business, assets, securities or services with respect to which any member of the Company Group is liable, contingently or otherwise, as obligor or otherwise, including any “earnout” and “seller notes” or similar payments, in each case, calculated as the maximum amount payable under or pursuant to such Liabilities, (d) any indebtedness secured by a Encumbrance on any assets of any member of the Company Group, (e) all obligations of any member of the Company Group under letters of credit, performance, payment, bid or surety bonds, banker’s acceptances or similar obligations (in each case, solely to the extent drawn), (f) any Taxes of a member of the Company Group attributable to Pre-Closing Tax Liability Period (other than the Buyer Assumed Taxes) (g) any commitment by which any member of the Company Group assures a creditor against loss (including contingent reimbursement obligations with respect to letters of credit), (h) any indebtedness guaranteed in any manner by any member of the Company Group (including guaranties in the form of an agreement to repurchase or reimburse) to the extent a demand has been made on the guaranty, (i) any Liabilities under leases recorded as a capital or financing lease in the Financial Statements, with respect to which any member of the Company Group is liable, contingently or otherwise, as obligor, guarantor or otherwise, or with respect to which obligations any member of the Company Group assures a creditor against loss, (j) any dividends or distributions payable or declared but not yet paid with respect to any member of the Company Group which are payable to a Person not a member of the Company Group, (k) any Liabilities under currency or interest rate swaps, hedge, forward agreement or similar agreement or arrangements, (l) any Intra-Company Payables, or (m) accrued or unpaid interest through the Closing Date in respect of any of the obligations described in the foregoing clauses (a) through (m) of this definition and all premiums, penalties, charges, fees, expenses and other amounts that are or would be due (including with respect to early termination) in connection with the payment and satisfaction in full of such Liabilities and the termination of all related Encumbrances.

“Indemnified Party” has the meaning set forth in Section 9.5(a).

“Indemnifying Party” has the meaning set forth in Section 9.5(a).

“Identified Filings” has the meaning set forth in Section 6.4.

“Independent Accountant” has the meaning set forth in Section 2.7(c).

“Insolvent” means, with respect to any Person, that, as of any date of determination, on a consolidated basis, if applicable: (i) the fair value of such Person’s assets will not exceed all of its liabilities (including contingent liabilities) as of such date; (ii) such Person will have, as of such date, an unreasonably small amount of capital for the business in which it is engaged, or (iii) such Person will not be able to pay its debts as they become absolute and mature, in the ordinary course of business.

“Intellectual Property” means all of the following anywhere in the world and all legal rights, title or interest in, under or in respect of the following arising under Law, whether or not filed, perfected, registered or recorded and whether now or later existing, filed, issued or acquired, including all renewals, (a) Patents, (b) Copyrights, (c) Trademarks, (d) Software, (e) all mask works, mask work registrations and mask work applications and all other corresponding rights, (f) all inventions (whether patentable or unpatentable and whether or not reduced to practice), know how, technology, technical data, (g) Trade Secrets, (h) all databases and data collections, (i) all other proprietary rights (including moral rights, rights related to social media accounts or information (including likes, subscribers or members), rights of personality, identity or privacy), (j) all copies and tangible embodiments of any of the foregoing (in whatever form or medium) and (k) rights to sue for past, present, and future infringement of the foregoing rights.

“Intellectual Property Assets” means all Intellectual Property that is owned by any member of the Company Group.

“Intellectual Property License Agreement” means a Contract granting or obtaining any right to use or practice any rights under any Intellectual Property to which any member of the Company Group or their Affiliates is a party or otherwise bound (whether as grantor or grantee or recipient of such right or otherwise) and which relates to the OUS Coflex Business.

“Interim Period” has the meaning set forth in Section 6.1(a).

“Intra-Company Payables” means all payables owed by any members of the Company Group to Seller or any Subsidiary of the Seller that is not a member of the Company Group.

“Inventory” means all inventory, finished goods, raw materials, work in progress, packaging, supplies and parts of the Company Group, including but not limited to all implants and instruments.

“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement or rule of law of any Governmental Authority.

“Liabilities” means any liability, obligation, indebtedness, debt, deficiency, interest, Tax, penalty, fine, claim, demand, judgment, cause of action, or other loss (including loss of benefit or relief), cost or expense of any kind or nature whatsoever, whether known or unknown, suspected or unsuspected, asserted or unasserted, absolute or contingent, accrued or unaccrued, liquidated or unliquidated, whether or not foreseeable, and whether due or become due and regardless of when asserted.

“Lookback Period” has the meaning set forth in Section 4.10.

“Losses” means any and all losses, claims, Liabilities, damages, fines, penalties, deficiencies, obligations, and costs and expenses of any kind or nature whatsoever, including, without limitation: (a) actual attorneys’, accountants’, consultants’, and other professionals’ fees; (b) costs and expenses incurred in connection with the investigation, defense, prosecution, resolution, or settlement of any actual or threatened Action, claim, demand, audit, or proceeding; and (c) costs and expenses incurred in enforcing any right to indemnification under this Agreement; provided, however, that the term “Losses” shall exclude any punitive or exemplary damages except to the extent actually awarded in a timely adjudicated or finally settled Third Party Claim.

“Material Adverse Effect” means any event, occurrence, fact, condition or change that is, or could reasonably be expected to become, individually or in the aggregate, materially adverse to (a) the OUS Coflex Business or the results of operations, condition (financial or otherwise) of any member of the Company Group, or (b) the ability of the Company to consummate the transactions contemplated hereby on a timely basis; provided, however, that none of the following shall be taken into account in determining whether there has been a Material Adverse Effect: any adverse event, occurrence, fact, condition or change (whether short-term or long-term) arising from or relating to (i) general business or economic conditions, including such conditions related to the OUS Coflex Business, (ii) national or international political or social conditions, including the engagement by the United States in hostilities, whether or not pursuant to the declaration of a national emergency or war, the occurrence of any military or terrorist attack upon the United States, or any of its territories, possessions, or diplomatic or consular offices or upon any military installation, equipment or personnel of the United States, or the announcement, proposal, adoption, implementation, or enforcement of any tariffs, trade sanctions, or similar actions by any Governmental Authority (or the public or market reaction thereto or the adverse effects resulting therefrom, including without limitation changes in customer or supplier behavior, increases in costs or reductions in demand), (iii) national or international emergency resulting from a pandemic or similar naturally occurring diseases or event, (iv) financial, banking, or securities markets (including any disruption thereof and any decline in the price of any security or any market index), (v) any changes in GAAP, (vi) changes in any Law or other binding directives issued by any Governmental Authority, (vii) acts of God, earthquakes, floods, hurricanes, tornadoes, or natural disasters, (viii) compliance with the requirements of this Agreement or the Transaction Documents, (ix) any action or omission which has been expressly requested or expressly approved by Buyer in writing, (x) changes, effects or circumstances arising out of the announcement or disclosure of the execution of this Agreement or the Asset Purchase Agreement or the announcement or disclosure of the transactions contemplated hereby or by the Asset Purchase Agreement, including losses or threatened losses of, and any adverse change in the relationship with, employees, customers, vendors, distributors, resellers, financing sources, licensors, licensees or other commercial relations of the Company Group, (xi) the Pre-Closing Intra-Company Restructuring or (xii) the failure of Buyer to timely approve a request by Seller under Section 6.1(b) if the request is for an action that Seller would take with respect to the Company Group in the Ordinary Course of Business; provided, further, however, that the exceptions in (i) – (vi) directly above shall only apply to the extent such event, occurrence, fact, condition or change does not, individually or in the aggregate, have a materially and adversely disproportionate impact on the OUS Coflex Business, taken as a whole, compared to other Persons or businesses that operate in the same or similarly situated industries as the OUS Coflex Business.

“Material Customers” has the meaning set forth in Section 4.13(a).

“Material Distributors” has the meaning set forth in Section 4.13(c).

“Material Suppliers” has the meaning set forth in Section 4.13(b).

“Net Working Capital” means the difference between the consolidated current assets (excluding all Cash) and consolidated current liabilities (excluding all Indebtedness) of the Company Group, as of 11:59 p.m., Eastern Time, on the day prior to the Closing Date, as applied in the preparation of the Financial Statements as of, and for the fiscal year ended, December 31, 2024 in accordance with the same Accounting Standards used in the preparation of the Financial Statements as of such date. For the avoidance of doubt, Net Working Capital shall not include (i) any amount of Income Tax assets or Income Tax liabilities, or any deferred Tax assets or deferred Tax liabilities or (ii) any receivables and payables among Seller and any of its direct and indirect subsidiaries (including all members of the Company Group). An example calculation of Net Working Capital is attached as Exhibit A-1.

“Net Working Capital Adjustment” means: (a) if the Net Working Capital is greater than the Target Net Working Capital, then an amount equal to such excess, or (b) if the Target Net Working Capital is greater than the Net Working Capital, then an amount equal to such excess. For the avoidance of doubt, if the Net Working Capital is equal to the Target Net Working Capital, then the Net Working Capital Adjustment shall equal $0.

“Non-Party Affiliates” has the meaning set forth in Section 10.11.

“Note” means that certain promissory note to be issued by Buyer for the benefit of Seller and SURGALIGN SPV, INC., a Delaware corporation, with a principal balance of $8,200,000.00, in connection with the US Purchase Agreement.

“Objection Notice” has the meaning set forth in Section 2.7(b).

“Order” means any (a) order, judgment, injunction, edict, decree, ruling, pronouncement, determination, decision, opinion, verdict, sentence, subpoena, writ or award issued, made, entered, rendered or otherwise put into effect by or under the authority of any court, administrative agency or other Governmental Authority or any arbitrator or arbitration panel or (b) Contract with any Governmental Authority entered into in connection with any Proceeding.

“Ordinary Course of Business” means the ordinary course of business consistent in nature, scope and magnitude with the past practices of such Person in the operation of its business.

“Organizational Documents” means (a) the articles or certificate of incorporation, the bylaws of a corporation and any other Contract between the equityholders relating to the organization or governance of such corporation, (b) the certificate of formation or articles of organization, the operating agreement or limited liability company agreement of a limited liability company and any other Contract between the equityholders relating to the organization or governance of such limited liability company, (c) the partnership agreement and any statement of partnership of a general partnership, (d) the limited partnership agreement, the certificate of limited partnership of a limited partnership and any other Contract between the equityholders relating to the organization or governance of such limited partnership, (e) any charter or similar document adopted or filed in connection with the creation, formation, governance, or organization of a Person in any jurisdiction in the world, and the operating agreement or any other Contract relating to the organization or governance of such Person, and (f) any amendment to, supplement to, modification of, or restatement of any of the foregoing.

“OUS Coflex Business” has the meaning set forth in the recitals.

“Party” has the meaning set forth in the preamble.

“Payoff Letters” has the meaning set forth in Section 2.4(b).

“Permits” means all permits, licenses, franchises, approvals, consents, authorizations, registrations, exemptions, accreditations, certificates, variances and similar rights, including all applications therefor and all renewals, extensions, or modifications thereof and additions thereto.

“Person” means an individual, corporation, limited liability company, general or limited partnership, association, trust, unincorporated organization, Governmental Authority, other entity or group, in any jurisdiction.

“Pre-Closing Intra-Company Restructuring” has the meaning set forth in Section 6.11.

“Pre-Closing Tax Liability Period” means any taxable period ending on or before the Closing Date, and, with respect to any taxable period beginning before and ending after the Closing Date, the portion of such taxable period ending on and including the Closing Date.

“Privacy Policies” means all Laws and policies relating to personal, personally-identifiable, sensitive or regulated information or the operation or security of any information technology assets.

“Proceedings” means any action, arbitration, audit, hearing, investigation, litigation or suit (whether civil, criminal, administrative, or judicial, whether formal or informal, whether public or private) commenced, brought, conducted or heard by or before, any Governmental Authority or arbitrator.

“Registered Intellectual Property” has the meaning set forth in Section 4.16(a).

“Representatives” means, with respect to any Person, any director, officer, employee, accountant, auditor, legal counsel, financial advisor, consultant, financing source or other advisor, agent or representative of such Person or any of its Affiliates or other Person acting on behalf of such Person or any of its Affiliates.

“Seller” has the meaning set forth in the preamble.

“Seller and Company Group Fundamental Representations” has the meaning set forth in Section 7.2(a).

“Seller Indemnitees” has the meaning set forth in Section 9.3.

“Seller Returns” has the meaning set forth in Section 6.10(d).

“Seller’s Knowledge” or any other similar knowledge qualification, means the actual knowledge of Sean Browne, Scott Neils, Enrico Sangiorgio, and Camille Sommer, including knowledge that would be obtained upon reasonable inquiry into the fact or matter represented or warranted.

“Software” means computer software, programs, and data embodied in any digitized form, all versions, updates, corrections, enhancements, replacements and modifications thereof, and all related documentation, manuals, source codes and object codes, program files, data files, computer related data, field and data definitions and relationships, data definition specifications, data models, program and system logic, interfaces, program modules, routines, sub-routines, algorithms, program architecture, design concepts, system designs, program structure, sequence and organization, screen displays and report layouts, and all other material and documentation related to the said computer software, programs, and data, whether in machine-readable form, programming language or any other language or symbols, and whether stored, encoded recorded or written on disk, tape, film, memory, device, paper or other media of any nature or kind whatsoever.

“Straddle Period” has the meaning set forth in Section 6.10(c).

“Subsidiaries” means with respect to any Person, any corporation, partnership, association or other business entity of which (i) 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 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 (ii) if a partnership, association or other business entity, a majority of the partnership or other similar ownership interest thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more Subsidiaries of that Person or a combination thereof.

“Target Net Working Capital” means $5,051,000.

“Tax Contest” has the meaning set forth in Section 6.10(h).

“Tax Return” means any return, declaration, report, claim for refund, information return or statement or other document relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof.

“Taxes” means all federal, state, local, foreign and other income, gross receipts, sales, use, production, ad valorem, transfer, franchise, registration, profits, license, lease, service, service use, withholding, payroll, employment, unemployment, estimated, excise, severance, environmental, stamp, occupation, premium, property (real or personal), real property gains, windfall profits, customs, duties or other taxes, fees, assessments or charges of any kind whatsoever, together with any interest, additions or penalties with respect thereto and any interest in respect of such additions or penalties.

“Taxing Authority” means the Internal Revenue Service and any other Governmental Authority having authority with respect to the determination, assessment, collection, enforcement or administration of any Tax and their respective successors, if any.

“Terminating Party” has the meaning set forth in Section 8.2(a).

“Termination Date” means (i) if Buyer has not exercised the First Additional Financing Period (as defined in the US Purchase Agreement) pursuant to Section 6.10(c) of the US Purchase Agreement, the expiration of the ten (10) Business Day period following the end of the Initial Financing Period (as defined in the US Purchase Agreement), (ii) if Buyer has exercised the First Additional Financing Period but has not exercised the Second Additional Financing Period (as defined in the US Purchase Agreement), in each case, pursuant to Section 6.10(c) of the US Purchase Agreement, the expiration of the ten (10) Business Day period following the end of the First Additional Financing Period, or (iii) if Buyer has exercised the Second Additional Financing Period pursuant to Section 6.10(c) of the US Purchase Agreement, the expiration of the ten (10) Business Day period following the end of the Second Additional Financing Period (ass as defined in the US Purchase Agreement); provided, however, that in no event will the Termination Date be later than December 31, 2025..

“Third Party Claim” has the meaning set forth in Section 9.5.

“Trade Secrets” means trade secrets, confidential or proprietary business information, manufacturing and production processes and techniques, algorithms, ratios, safety, data, product specifications, research and development information, records, reports, formulae, technology, plans, drawings, blueprints, programs, software, source code, financial, marketing and business data, pricing and cost information, business and marketing plans, advertising and promotional materials, customer, distributor, reseller and supplier lists and information, correspondence, records, and other documentation, and other proprietary information of every kind, in each case, to the extent it is not in the public domain.

“Trademarks” means all trade dress and trade names, logos, internet addresses and domain names, trademarks and service marks and related registrations and applications, including any intent to use applications, supplemental registrations and any renewals or extensions, all other indicia of commercial source or origin and all goodwill associated with any of the foregoing.

“Transaction Documents” means this Agreement, the US Purchase Agreement, and any other agreement, instrument, certificate, or document executed and delivered in connection with the transactions contemplated hereby.

“US Coflex Business” has the meaning set forth in the recitals.

“US Purchase Agreement” has the meaning set forth in the recitals.

ARTICLE II

CLOSING AND CONSIDERATION

2.1 Closing. Subject to the terms and conditions of this Agreement, the consummation of the transactions contemplated by this Agreement (the “Closing”) shall take place remotely by electronic exchange of documents and signatures no later than two (2) Business Days after all of the conditions to Closing set forth in Article VII have been satisfied or waived by the applicable Party (other than conditions which, by their nature, are to be satisfied on the Closing Date). The date on which the Closing occurs is the “Closing Date.” The Closing shall be deemed effective as of 11:59 p.m. Eastern Time on the Closing Date for all purposes. All proceedings to be taken and all documents to be executed and delivered at the Closing will be deemed to have been taken and executed simultaneously and no proceedings will be deemed to have been taken nor documents executed and delivered until all have been taken, executed and delivered. For the avoidance of doubt, the Closing shall take place simultaneously with the closing of the transactions contemplated by the US Purchase Agreement. Accordingly, the Parties have included the condition to Closing set forth in Section 7.1(c).

2.2 Sale and Transfer of Shares. Upon the terms and subject to the conditions of this Agreement, at the Closing, the Seller shall sell, assign, transfer, convey and deliver to Buyer or its designee, and Buyer hereby agrees to purchase, or cause its designee to purchase, from Seller, all of Seller’s interests in, to and under the Shares in exchange for (i) the Estimated Purchase Price pursuant to and in accordance with Section 2.3 and (ii) if applicable, a payment in cash, without interest, to be made to the Seller in respect of the Shares following the determination of the Final Purchase Price pursuant to and in accordance with Section 2.7.

2.3 Estimated Purchase Price. The aggregate consideration to be paid by Buyer to the Seller for the Shares at the Closing (the “Estimated Purchase Price”) shall be an amount in cash equal to (a) the Enterprise Value, minus (b) the Estimated Closing Indebtedness, plus (c) to the extent the Estimated Net Working Capital exceeds the Target Net Working Capital, the Estimated Net Working Capital Adjustment, plus (d) any Estimated Closing Date Cash, minus (e) to the extent the Target Net Working Capital exceeds the Estimated Net Working Capital, the Estimated Net Working Capital Adjustment.

2.4 Closing Certificate. At least three (3) Business Days prior to the Closing Date, the Seller shall deliver to Buyer:

(a) A certificate (the “Closing Certificate”), duly certified by the Chief Executive Officer of the Seller, setting forth:

(i) the Company Group’s good faith estimates of (A) the amount of the Closing Indebtedness (the “Estimated Closing Indebtedness”), (B) the Net Working Capital (the “Estimated Net Working Capital”), (C) the Net Working Capital Adjustment (the “Estimated Net Working Capital Adjustment”), (C) the amount of the Closing Date Cash (“Estimated Closing Date Cash”), all calculated in accordance with the terms of this Agreement, and (E) the calculation of the Estimated Purchase Price (based on (A), (B), (C) and (D) above); and

(ii) wire transfer instructions for each account necessary for each payment to be made by Buyer at the Closing in accordance with the terms and conditions of this Agreement.

(b) payoff letters, in form and substance reasonably satisfactory to Buyer (the “Payoff Letters”), from each holder of Indebtedness, which confirms the aggregate outstanding amount required to be paid to fully satisfy all principal, interest, prepayment premiums, penalties, breakage costs or any other outstanding and unpaid obligations under each item of Closing Indebtedness as of the Closing (and the daily accrual of interest thereunder to be paid off as of the Closing), and which Payoff Letters shall provide for the release of all Encumbrances relating to the applicable Indebtedness on the assets or properties of any member of the Company Group and their respective Affiliates upon payment of the applicable payoff amount, and set forth arrangements, reasonably satisfactory to Buyer, for such lenders or their representatives to provide on or promptly following the Closing Date, UCC-3 termination statements, terminations of landlord waivers, terminations of account control agreements and release documents acceptable for recordation in local real property records or the United States Patent and Trademark Office, the United States Copyright Office and any other similar domestic or foreign intellectual property office, department or agency required to evidence such Encumbrance releases (if applicable).

Following delivery by the Seller of the Closing Certificate, the Company Group shall, and the Seller shall cause the Company Group to, upon reasonable prior written notice to the Company Group, provide Buyer and its Representatives with reasonable access during normal business hours, in a manner that does not unreasonably interfere with the business operations of the Company Group, to the financial books and records of the Company Group, in each case, for the purposes of allowing Buyer and its Representatives to confirm the accuracy of the calculations set forth in the Closing Certificate. The Seller shall consider in good faith any comments raised by Buyer in connection with its review of the Closing Certificate, and to the extent the Seller agrees, in its sole discretion, to any such suggested revisions, the Seller shall deliver to Buyer a revised Closing Certificate reflecting such revisions, which revised Closing Certificate shall be deemed to have been delivered at the time the Seller delivered the initial Closing Certificate.

2.5 Payments at Closing.

(a) Closing Indebtedness. At the Closing, Buyer shall pay or cause to be paid, to the holders of the Closing Indebtedness, by wire transfer of immediately available funds pursuant to the wire transfer instructions set forth in the Closing Certificate and otherwise in accordance with the Payoff Letters, the amounts (without duplication) set forth in the Closing Certificate as Closing Indebtedness and in the Payoff Letters; and

(b) Seller Closing Payment. At the Closing, Buyer shall pay or cause to be paid, to the Seller, by wire transfer of immediately available funds to the account of Seller as set forth in the Closing Certificate, the Estimated Purchase Price as set forth on the Closing Certificate.

2.6 Deliveries at Closing.

(a) Deliveries by the Seller and the Company Group. At the Closing, the Company Group and Seller shall deliver, or cause to be delivered, to Buyer.

(i) a good standing certificate (or equivalent), dated within five (5) Business Days prior to the Closing, for each member of the Company Group, in each case, from its jurisdiction of incorporation, organization, or formation, as applicable;

(ii) a certificate, in form and substance reasonably satisfactory to Buyer, dated as of the Closing Date, and executed by the Secretary of Seller certifying (A) that attached thereto are true and complete copies of all resolutions adopted by the board of directors of each of Seller and the Company authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents to which the Seller and the Company are a party and the consummation of the transactions contemplated hereunder and thereunder, and that such resolutions have not been amended or modified in any respect and remain in full force and effect as of the Closing Date, and (B) that attached thereto are true and complete copies of the Organizational Documents of each member of the Company Group;

(iii) a certificate, dated as of the Closing Date, executed by a duly authorized officer of the Seller, certifying the satisfactions of the conditions set forth in Section 7.2(a), Section 7.2(b), and Section 7.2(c);

(iv) all certificates representing the Shares, if any, together with duly executed documents of transfer and assignment, in form and substance reasonably satisfactory to Buyer, sufficient to transfer record title and full beneficial ownership of the Shares to Buyer, free and clear of all Encumbrances;

(v) evidence, reasonably satisfactory to Buyer that the Seller has completed the Pre-Closing Intra-Company Restructuring;

(vi) an IRS Form W-9, duly executed and completed by the Seller, the Company, and each member of the Company Group, as applicable;

(vii) written resignations and releases, in form and substance reasonably satisfactory to Buyer, executed by each director and officer of each member of the Company Group identified by Buyer, effective as of the Closing;

(viii) a deed, duly notarized, evidencing the transfer of the Shares in accordance with the § 15(3) of the German Act on Limited Liability Companies (GmbHG);

(ix) evidence that the Company has made a commercially reasonable effort to enter into a manufacturing agreement with Bricon GmbH, which includes the terms set forth on Schedule 2.6(a)(ix) (or as otherwise may be agreed to between the Company and Buyer); provided, however, that commercially reasonable efforts shall expressly not require Seller to pay any consideration to, or grant any concessions to, Bricon GmbH, and

(x) evidence reasonably satisfactory to Buyer that each of the Encumbrances and agreements set forth on Schedule 2.6(a)(x) has been terminated at or prior to the Closing such that neither Buyer nor any member of the Company Group, nor any of their respective Affiliates, has any Liability thereunder.

(b) Deliveries by Buyer. At the Closing, Buyer shall deliver (or cause to be delivered) the following documents, each in form and substance reasonably satisfactory to the Company:

(i) a certificate, in form and substance reasonably satisfactory to Seller, dated as of the Closing Date, and executed by the Secretary of Buyer certifying (A) that attached thereto are true and complete copies of all resolutions adopted by the board of managers of Buyer authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents to which the Buyer is a party and the consummation of the transactions contemplated hereunder and thereunder, and that such resolutions have not been amended or modified in any respect and remain in full force and effect as of the Closing Date; and

(ii) a certificate, dated as of the Closing Date, executed by a duly authorized officer of Buyer, certifying the satisfaction of the conditions set forth in Section 7.3(a) and Section 7.3(b).

2.7 Post-Closing Adjustment.

(a) Buyer shall prepare and deliver to the Seller, within sixty (60) days following the Closing Date, a statement setting forth Buyer’s good faith calculations (the “Buyer’s Proposed Calculations”) of (i)(A) the actual amount of the Closing Indebtedness, (B) the actual amount of the Closing Date Cash, (C) the actual amounts of the Net Working Capital and the Net Working Capital Adjustment, in each case, calculated in accordance with the terms of this Agreement; (ii) the Final Purchase Price using the foregoing amounts; and (iii) the amount, if any, by which the Final Purchase Price so determined using the foregoing amounts for these purposes is greater than or less than the Estimated Purchase Price. Buyer’s Proposed Calculations shall include reasonable detail of the items constituting such Closing Indebtedness, such Net Working Capital and such Net Working Capital Adjustment. Following delivery by Buyer of Buyer’s Proposed Calculations, Buyer and the Company Group shall, upon reasonable prior written notice to Buyer, provide the Seller and its Representatives with reasonable access during normal business hours, in a manner that does not interfere with the business operations of Buyer, any member of the Company Group or any of their respective Affiliates, to the financial books and records of the Company Group, in each case, solely to the extent related to the period prior to the Closing and solely for the purposes of allowing the Seller and its Representatives to confirm the accuracy of the Buyer’s Proposed Calculations.

(b) On or prior to the 45th day following Buyer’s delivery of the Buyer’s Proposed Calculations, the Seller may deliver to Buyer a written notice stating the Seller’s objections to the Buyer’s Proposed Calculations (including each disputed item or amount) and the Seller’s calculation of each disputed amount (the “Objection Notice”). The Objection Notice shall specify in reasonable detail the amount of any objection and the basis therefor. Any determination set forth in the Buyer’s Proposed Calculations that is not specifically objected to in the Objection Notice shall be deemed accepted and shall be final, conclusive and binding upon the Parties. If the Seller does not deliver to Buyer the Objection Notice within such 45-day period, then the Buyer’s Proposed Calculations shall be final, conclusive and binding upon the Parties and the Buyer’s Proposed Calculations shall constitute the basis for the determination of the Final Purchase Price.

(c) Following Buyer’s receipt of the Objection Notice, the Seller and Buyer shall attempt to negotiate in good faith to resolve any amounts disputed in the Objection Notice. In the event that the Seller and Buyer fail to agree on all of the Seller’s proposed disputed items set forth in the Objection Notice within thirty (30) days after Buyer receives the Objection Notice, the Seller and Buyer shall engage Eide Bailly LLP or, if such Person is unable or unwilling to act as the Independent Accountant hereunder, such other nationally recognized accounting firm that is mutually acceptable to Buyer and the Seller and is willing to serve in such capacity hereunder (the “Independent Accountant”), to make the final determination of any remaining amounts in dispute (the “Disputed Amounts”) in accordance with the terms of this Agreement. Buyer and the Seller shall deliver to the Independent Accountant a copy of the Buyer’s Proposed Calculation and the Objection Notice and each of Buyer and the Seller shall provide the Independent Accountant with their respective determinations of the Disputed Amounts and such other written submissions, presentations and supporting material as each of Buyer and the Seller deems necessary and appropriate. A copy of the written submissions, presentations and supporting materials provided by Buyer or the Seller, as applicable, to the Independent Accountant, shall be promptly delivered to the other Person, and no Party or its Representatives shall be permitted to engage in any ex-party communications (whether written or oral) with the Independent Accountant. The Independent Accountant shall make a determination in writing of each of the Disputed Amounts as soon as reasonably practicable after its engagement, but no later than forty five (45) days after being engaged, and such determination shall be, absent fraud or manifest error, final and binding on the Parties and shall be within the range proposed by Buyer and the Seller in the Buyer’s Proposed Calculations and the Objection Notice for each of such Disputed Amount. The scope of the disputes to be resolved by the Independent Accountant shall be limited to whether the calculation of a Disputed Amount was done in accordance with the terms hereof (including the applicable definitions of this Agreement) and whether there were mathematical errors in the calculation of any of the Disputed Amounts, and the Independent Accountant shall not to make any other determination. The Independent Accountant shall make its determination based solely on written submissions, presentations and supporting material provided by Buyer and the Seller and not pursuant to any independent review, and such determination shall be based upon the definitions of Closing Indebtedness and Net Working Capital. The Independent Accountant shall act as an expert, not an arbitrator. The fees, costs and expenses of the Independent Accountant shall be allocated between Buyer, on the one hand, and the Seller, on the other hand, based upon the percentage of the aggregate dollar value of the items set forth in the Objection Notice not awarded to Buyer and the Seller, respectively, bears to the amount actually contested by such Party. For example, if the Seller claims that the appropriate adjustments are in the aggregate $1,000 greater than the amount determined by Buyer and if the Independent Accountant ultimately resolves such items by awarding to the Seller $300 of the $1,000 contested, then the fees, costs and expenses of the Independent Accountant will be allocated 30% (i.e., 300 ÷ 1,000) to Buyer and 70% (i.e., 700 ÷ 1,000) to the Seller. During the review by the Independent Accountant, Buyer, the Seller and their respective Representatives shall make reasonably available to the Independent Accountant such information, books and records and work papers as may be reasonably required by the Independent Accountant to fulfill its obligations under this Section 2.7(c). The Independent Accountant’s determination of the Disputed Amounts shall be treated as compromise and settlement negotiations for purposes of Rule 408 of the Federal Rules of Evidence and comparable state rules of evidence, and all negotiations, submissions to the Independent Accountant, and presentations under this Section 2.7(c) shall be treated as confidential information. The Independent Accountant shall be bound by a mutually agreeable confidentiality agreement. The decision rendered pursuant to this Section 2.7(c) may be filed as a judgment in any court of competent jurisdiction. Either Party may seek specific enforcement or take other necessary legal action to enforce any decision under this Section 2.7(c). The other Party’s only defense to such a request for specific enforcement or other legal action shall be fraud by or upon the Independent Accountant or manifest error by the Independent Accountant. Absent such fraud or manifest error, such other Party shall reimburse the Party seeking enforcement for all of its expenses related to the enforcement of the Independent Accountant’s determination.

(d) Payment of Adjusted Amounts.

(i) If the Estimated Purchase Price is greater than the Final Purchase Price, then any amounts owed by the Seller to Buyer shall be first offset against any amounts of principal and accrued interest owed by Buyer to Seller under the Note (if any remaining under the Note), and if none such amounts remain outstanding under the Note, then to Buyer via wire transfer of immediately available funds to the account designated by Buyer, such amount shall be equal to the aggregate amount the Estimated Purchase Price is greater than Final Purchase Price.

(ii) If the Final Purchase Price is greater than the Estimated Purchase Price, then the Buyer shall pay or cause to be paid to Seller, via wire transfer of immediately available funds to the account designated by Seller, an amount equal to the aggregate amount the Final Purchase Price is greater than Estimated Purchase Price.

(iii) All payments made pursuant to this Section 2.7 shall be treated by all Parties for Tax purposes as adjustments to the purchase price unless otherwise required by Law.

The Parties agree that no amount shall be (or is intended to be) included, in whole or in part (either as an increase or a reduction), more than once in the calculation of the Final Purchase Price or any other calculated amount pursuant to this Agreement. All of the amounts set forth on the Closing Certificate and the Buyer’s Proposed Calculations (and the individual elements thereof, as applicable) (i) shall be determined in accordance with the definitions included in this Agreement, to the extent addressed therein, and, except as otherwise expressly contemplated by this Agreement, in accordance with the Accounting Standards, (ii) shall be prepared with the same rigor as if such accounts were being prepared as of a fiscal year-end, and (iii) shall not include any “purchase accounting” or other adjustment arising out of the consummation of the transactions contemplated by this Agreement.

2.8 Withholding. Buyer shall be entitled to deduct or withhold any and all Taxes from any amount payable pursuant to this Agreement such amounts as are required to be deducted and withheld under the Code or other provision of applicable Law as set forth on a schedule provided by Buyer to the Seller not later than ten (10) days prior to the Closing, which schedule shall contain a written explanation substantiating the requirement to deduct or withhold, as reasonably agreed to by the Seller, and Buyer shall use commercially reasonable efforts to cooperate with the Seller or other recipient of any payment hereunder to minimize or eliminate any such withholding to the maximum extent permitted by Law, including by collecting any necessary Tax forms for avoiding such withholding, including IRS Form W-9, an applicable IRS Form W-8 or similar information, from the Seller and such other recipient. Any amount that is so deducted and withheld and remitted to the applicable Taxing Authority shall be treated as having been otherwise paid to the Seller for all purposes of this Agreement.

ARTICLE III

Representations and Warranties Regarding the Seller

The Seller hereby represents and warrants to Buyer as follows:

3.1 Organization; Good Standing. The Seller is a corporation duly incorporated, validly existing, and in good standing under the laws of its jurisdiction of incorporation. The Seller has all requisite corporate power and authority to own, lease, and operate its assets and to conduct its business as currently conducted.

3.2 Authorization and Enforceability. The Seller has all necessary corporate power and authority to execute and deliver this Agreement and each other Transaction Agreement to which it is a party, to perform its obligations hereunder and thereunder, and to consummate the transactions contemplated hereby and thereby. The execution, delivery, and performance by the Company of this Agreement and the Transaction Agreements and consummation of the transactions contemplated hereby and thereby, have been, or will be (prior to the Closing Date in the case of any required stockholder action), duly authorized, approved and adopted by all requisite corporate and stockholder action, as applicable. This Agreement and each such Transaction Agreement, when executed and delivered by Seller (assuming due authorization, execution, and delivery by the other parties thereto), constitute the legal, valid, and binding obligations of Seller, enforceable against Seller in accordance with their respective terms, subject to applicable insolvency, bankruptcy, reorganization, moratorium or other similar applicable Law affecting creditors’ rights generally (the “Enforceability Exceptions”).

3.3 Non-contravention; Consents. The execution and delivery by the Seller of this Agreement and the other Transaction Documents to which it is a party, the consummation by the Seller of the transactions contemplated hereby or thereby, and compliance by the Seller of any provision in this Agreement or any other Transaction Document to which it is a party, do not and will not (whether with or without the passage of time, the giving of notice or both), (a) violate, breach, conflict with, constitute a default under, result in the acceleration of rights or obligations under, create in any Person the right to accelerate, terminate, modify or cancel, or result in the obligation to make any payment (including any change of control, severance or similar payments) under, or require any consent or notice under, any Contract to which the Seller is a party, or by which the Seller or any of its assets is bound, or any Permit that has been issued to the Seller or relating to any of its assets, in each case, except as could not be reasonably expected to materially impair the Seller’s ability to consummate the transactions contemplated by this Agreement in a timely manner (b) violate, breach or conflict with any Order or Law applicable to the Seller or any of its properties or assets or (c) result in the imposition of any Encumbrances upon any Equity Securities or assets of any member of the Company Group.

3.4 Ownership of Equity Securities. Except as set forth on Schedule 3.4 of the Disclosure Schedules, the Seller owns, of record and beneficially, and has good and valid title to, the Shares, free and clear of any Encumbrances, and, to the extent applicable, all of the Shares are fully paid and non-assessable. The Seller is not a party to (a) any option, warrant, purchase right or other Contract that could require it to sell, transfer or otherwise dispose, directly or indirectly, of any Equity Securities of any member of the Company Group or (b) any voting trust, proxy, or other Contract with respect to the voting, directly or indirectly, of any Equity Securities of any member of Company Group. Except as set forth on Schedule 3.4, after giving effect to the transactions contemplated by this Agreement, neither the Seller nor any of its Affiliates will have any direct or indirect interest in any Equity Securities of, or other interest in, any member of the Company Group, and Buyer will be the sole record and beneficial owner of, and will hold good and valid title to, all of the Equity Securities of each member of the Company Group, free and clear of all Encumbrances.

3.5 Solvency. The Seller is not now Insolvent and will not be rendered Insolvent by the consummation of the transactions contemplated by this Agreement or the other Transaction Documents. No transfer of the Shares is being made, and no obligation is being incurred, in connection with the transactions contemplated by this Agreement with the intent to hinder, delay or defraud either present or future creditors of the Seller.

3.6 Proceedings: Orders. There are no pending or, to the Seller’s Knowledge, threatened Proceedings, by any Person against the Seller which seek to restrain, alter, delay or prohibit, or to obtain damages or other relief in connection with, the transactions contemplated by this Agreement, or which would have, or could reasonably be expected to have, a Material Adverse Effect.

3.7 Broker. No broker, finder, or other financial advisor is entitled to any fee or commission in connection with the transactions contemplated by this Agreement based upon any arrangement or agreement made by or on behalf of Seller or its Affiliates.

3.8 No Other Representations. Except for the representations and warranties expressly set forth in this Article III and Article IV, the Seller, the Company, nor any of their respective directors, officers, employees, agents, or representatives, makes or shall be deemed to have made any other representation or warranty, express or implied, at law or in equity, with respect to the Seller, the Company, or the transactions contemplated by this Agreement, and any such other representations or warranties are hereby expressly disclaimed.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY GROUP

Except as set forth in the correspondingly numbered Section (and subsection where applicable) of the Disclosure Schedules, each of the Seller and the Company hereby represent and warrant to Buyer that the statements contained in this Article IV are true and correct as of the date hereof and the Closing Date.

4.1 Organization; Good Standing. Each member of the Company Group is duly incorporated or formed, as applicable, validly existing and in good standing (or the equivalent) under the laws of the jurisdiction of its incorporation or formation, as applicable. Each member of the Company Group has all requisite corporate or other organizational power and authority to own, lease and operate its properties and to carry on its business as now being conducted. Each member of the Company Group is duly qualified or licensed to do business and is in good standing (or the equivalent) in each jurisdiction in which the nature of its respective business or the ownership or leasing of its respective properties makes such qualification or licensing necessary, unless the failure to be so qualified would not cause a Material Adverse Effect on such member of the Company Group, each of which is identified on Schedule 4.1 of the Disclosure Schedules. The Seller has made available to Buyer complete and correct copies of the Organizational Documents for each member of the Company Group that reflect all material amendments made thereto at any time prior to the date of this Agreement. The minute books (containing the records of meetings of the equityholders, the board of directors (or similar governing body) and any committees of the board of directors), and the record books of each member of the Company Group are correct and complete in all material respects. No member of the Company Group is in material default under, or in material violation of any provision of, its Organizational Documents.

4.2 Authorization and Enforceability. The Company has all necessary corporate power and authority to execute and deliver this Agreement and each other Transaction Agreement to which it is a party, to perform its obligations hereunder and thereunder, and to consummate the transactions contemplated hereby and thereby. The execution, delivery, and performance by the Company of this Agreement and such other Transaction Agreements to which it is a party have been duly authorized by all requisite corporate action. This Agreement and each such Transaction Agreement, when executed and delivered by the Company (assuming due authorization, execution, and delivery by the other parties thereto), constitute the legal, valid, and binding obligations of the Company, enforceable against it in accordance with their respective terms, subject to the Enforceability Exceptions.

4.3 Non-Contravention; Consents. Except as set forth on Schedule 4.3 of the Disclosure Schedules, the execution, delivery, and performance by the Company of this Agreement and the other Transaction Documents to which it is a party, nor the consummation by transactions contemplated hereby or thereby, nor compliance by the any member of the Company Group of any provision in this Agreement or any other Transaction Document to which it is a party, do not and will not (whether with or without the passage of time, the giving of notice or both), (i) conflict with, violate, or result in the violation or default of or constitute a default under any of the provisions of any Organizational Document of any member of the Company Group or any resolutions adopted by the stockholders, board of directors or other governing body of the Company, (ii) violate, breach, conflict with, constitute a default under, result in the acceleration of rights or obligations under, create in any Person the right to accelerate, terminate, modify or cancel, or result in the obligation to make any payment (including any change of control, severance or similar payments) under, or require any consent or notice under, any Business Contract to which any member of the Company Group is a party, or by which any member of the Company Group or any of its assets is bound, or any Permit that (A) is material to the Company Group or (B) necessary to operate and conduct the business of the Company Group and, in the case of (A) and (B), that has been issued to any member of the Company Group or relating to any of its assets, (iii) violate, breach or conflict with any Order or Law applicable to any member of the Company Group or any of their respective properties or assets, (iv) result in the imposition of any Encumbrance upon any Equity Securities or assets of any member of the Company Group; or (v) result in or give rise to any material Liability, penalty, forfeiture or restriction on any member of the Company Group; or (vi) result in Buyer’s or any of its Affiliates’ or assets becoming bound by any Business Contract (other than this Agreement and the other Transaction Documents to which any of the foregoing Persons is a party).

4.4 Capitalization of the Company Group.

(a) As of the date hereof, the issued and outstanding equity securities of the Company consist of one (1) share of capital common stock, and one (1) share of capital common stock is issued and outstanding, held of record and beneficially by the Seller, free and clear of any Encumbrances.

(b) A complete and accurate list of the authorized, issued and outstanding Equity Securities of each member of the Company Group (other than the Company) is set forth on Schedule 4.4(b) of the Disclosure Schedules, and such Equity Securities are held beneficially and of record by the Persons and in the respective amounts set forth on Schedule 4.4(b) of the Disclosure Schedules, in each case, free and clear of any Encumbrances.

(c) All issued and outstanding Equity Securities of each member of the Company Group have been duly authorized and validly issued and, to the extent such concepts are applicable to such Equity Securities, are fully paid and nonassessable. None of the Equity Securities of any member of the Company Group (i) has been issued in violation of, or is subject to, any preemptive rights, rights of first refusal or other similar rights or (ii) has been issued in violation of any Laws (including applicable securities Laws) or Contracts. There are no outstanding or authorized options, warrants, rights, calls, puts, rights to subscribe, conversion rights, or other Contracts (contingent or otherwise) to which any member of the Company Group is a party or which are binding upon any member of the Company Group pursuant to which any member of the Company Group is obligated, and no member of the Company Group is subject to any other obligation (contingent or otherwise), to issue, dispose of, sell, repurchase, redeem or acquire, directly or indirectly, any Equity Securities of any member of the Company Group. No Person has any right (whether by Law or by Contract) with respect to the purchase, subscription, allotment or issuance of any Equity Securities of any member of the Company Group. There are no authorized, outstanding or promised equity appreciation, phantom equity, profit-sharing, profit participation, phantom equity, rights to compensation or other payment or similar rights, in each case, based on the price of Equity Securities of any member of the Company Group or with respect to any member of the Company Group. There are no securities or obligations convertible or exchangeable into or exercisable for, or giving any Person a right to subscribe for or acquire any, Equity Securities of any member of the Company Group. There are no bonds, debentures, notes or other Indebtedness of any member of the Company Group having the right to vote or consent on any matters on which a holder of Equity Securities of any member of the Company Group is entitled to vote. No member of the Company Group is a party to any voting trusts, proxies, or any other Contracts with respect to the voting of any of its Equity Securities.

(d) Except as set forth on Schedule 4.4(d) of the Disclosure Schedules, no member of the Company Group has any Subsidiaries.

4.5 Financial Statements.

(a) Schedule 4.5(a) of the Disclosure Schedules contains a true, correct and complete copy of (a) the unaudited consolidated balance sheet of the Company Group as of December 31, 2024, and the related consolidated statement of income for the fiscal year then-ended and (b) the unaudited consolidated balance sheet of the Company Group as of March 31, 2025 (the “Balance Sheet Date”) and the related unaudited consolidated statement of income for the three fiscal months ended March 31, 2025 (the unaudited consolidated balance sheet of the Company Group as at the Balance Sheet Date is hereinafter referred to as the “Balance Sheet”). The financial statements referenced in the preceding sentence are collectively referred to as, the “Financial Statements”. Each of the Financial Statements were derived from the books and records of the Company Group and were prepared in accordance with GAAP, consistently applied for the periods covered.

(b) The Financial Statements present fairly, in all material respects, (A) the consolidated financial position, condition, assets, liabilities, and (B) the consolidated results of the operations of the Company Group, as of the dates or for the periods specified therein.

(c) Except as set forth on Schedule 4.6 of the Disclosure Schedules, no member of the Company Group has any material Liabilities, except (i) Liabilities reflected in the Financial Statements, (ii) Liabilities that have arisen after the Balance Sheet Date in the Ordinary Course of Business or (iii) Liabilities that are not required to be shown on the face of a balance sheet prepared in accordance with under GAAP.

4.6 Books and Records. The books of account and other records of each member of the Company Group, all of which have been made available to Buyer, are complete and correct in all material respects, represent actual, bona fide transactions related to the OUS Coflex Business, and have been maintained in accordance with sound business practices.

4.7 Coflex Business. Except as set forth on Schedule 4.7 of the Disclosure Schedules, the OUS Coflex Business and the US Coflex Business, together, constitute all of Seller’s and its Affiliates, right, title, and interest, financial or otherwise, in the Coflex Business, and following the consummation of the transactions contemplated by this Agreement and the consummation of the transactions contemplated by the US Purchase Agreement, neither the Seller nor their Affiliates, shall own any interest (financial or otherwise) in, operate, or control any portion of the Coflex Business.

4.8 Inventory.

(a) Except as set forth on Schedule 4.8(a) of the Disclosure Schedules, the Company Group has good, valid, and marketable title to all of the Inventory, free and clear of all Encumbrances, and will transfer good, valid, and marketable title to Buyer at the Closing. The Inventory, subject to applicable reserves on the Company’s Financial Statements (a) has been reasonably reflected on the Financial Statements of the Company Group; (b) consists of a quality and quantity usable, merchantable and fit for the purpose for which it was purchased or manufactured; and (c) is not damaged or defective.

4.9 Proceedings; Orders. There are no pending or, to the Seller’s Knowledge, threatened Proceedings or Orders (a) against any member of the Company Group (or any of its managers, directors, officers, employees or equityholders, in their respective capacities as such) or any of their Affiliates that relate to, arise out of, or could reasonably be expected to be material to the Company Group or (b) that challenges or seeks to prevent, enjoin or otherwise delay the transactions contemplated by this Agreement. To the Seller’s Knowledge, no circumstances exist that would reasonably be expected to give rise to any such Proceeding or Order.

4.10 Compliance with Laws. Each member of the Company Group is, and for the previous two (2) years (“Lookback Period”) has been, in material compliance with (a) all Laws and all Orders to which it or its properties or assets are subject, and (b) all Privacy Policies applicable to the conduct of the OUS Coflex Business.

4.11 Absence of Certain Changes Events or Conditions. Since December 31, 2023, (a) the business of each member of the Company Group has been conducted in the Ordinary Course of Business, except for actions taken by the Company Group in preparation of the transactions contemplated by this Agreement or any other Transaction Document, and (b) no event has occurred that has had a Material Adverse Effect on the Company Group.

4.12 Business Contracts.

(a) Schedule 4.12(a) sets forth a correct and complete list each of the following Contracts to which any member of the Company Group is a party or by which any of its assets or properties is bound (whether written or oral and including all amendments and supplements thereto) (collectively, the “Business Contracts”):

(i) any Contract with any Material Customer;

(ii) any Contract with a Material Supplier;

(iii) any Contract with a Material Distributor;

(iv) any Contract for the licensing of any products or services of any member of the Company Group;

(v) any real estate leases or other similar arrangements with respect to real property;

(vi) any Contract that evidences or secures any Encumbrance or Indebtedness for which any member of the Company Group or any of their Affiliates is directly or indirectly liable;

(vii) any capital or operating leases or conditional sales agreements relating to vehicles and equipment of any member of the Company Group;

(viii) any Contract that relates to the development, joint development, or co-ownership of any Intellectual Property Assets;

(ix) any Intellectual Property License Agreement, other than “off-the-shelf” software licenses licensed under generally commercially available agreements;

(x) any Contract that includes any non-competition, non-solicitation, or similar restriction on any member of the Company Group or that similarily restricts, limits, or restricts the use, sale, enforcement or ownership of the assets of any member of the Company Group;

(xi) any employment, consulting, noncompetition, or separation agreement;

(xii) any collective bargaining, union or labor agreements or arrangements;

(xiii) any agreements with or for the benefit of any director, manager, officer or employee of any member of the Company Group, or any Affiliate or immediate family member thereof.

(xiv) all other Contracts that are material to any member of the Company Group, in each case, that are not of the nature of the Contracts covered by clauses (i)-(xiii) above (e.g. this subsection (xiv) does not cover any distribution Contract regardless of whether it is a Contract with a “Material Distributor”).

(b) The Company Group has delivered to Buyer a true and complete copy of each written Business Contract and a true written summary of each oral Business Contract (if any). Each Business Contract is valid, binding and in full force and effect and enforceable in accordance with its terms, except as such enforceability may be limited by the Enforceability Exception. Each member of the Company Group, as applicable, has performed, in all material respects, all of its obligations under each Business Contract to which it is a party and that are required to be performed by such member of the Company Group. There exists no material breach or default (or event that with notice or lapse of time would constitute a material breach or default) on the part of any member of the Company Group under any Business Contract, and there has been no termination or notice of default or, to the Seller’s Knowledge, any threatened termination under any such Business Contract.

4.13 Customers; Suppliers; Distributors.

(a) Set forth on Schedule 4.13(a) of the Disclosure Schedules is a complete list of the ten (10) largest customers of the Company Group on a revenue basis for the calendar year ended December 31, 2024 (the “Material Customers”), which list indicates the amount of revenues attributable to each such Material Customer for such period. Since December 31, 2024, (a) no Material Customer has notified any member of the company Group in writing or, to the Seller’s Knowledge, provided an oral notice or threat of such Material Customer’s intention to terminate, or materially alter its relationship with such member of the Company Group, and (b) there has been no material dispute with a Material Customer (other than in the Ordinary Course of Business).

(b) Set forth on Schedule 4.13(b) of the Disclosure Schedules is a complete list of the ten (10) largest suppliers of the Company Group each as measured by dollar value for the year ended December 31, 2024 (the “Material Suppliers”), which list indicates the dollar value attributable to each such Material Supplier for such period. Since December 31, 2024, (a) no Material Supplier has notified any member of the Company Group in writing or, to the Seller’s Knowledge, provided an oral notice or threat of such Material Supplier’s intention to terminate, or materially alter its relationship with such member of the Company Group, and (b) there has been no material dispute with a Material Supplier (other than in the Ordinary Course of Business).

(c) Set forth on Schedule 4.13(c) of the Disclosure Schedules sets a complete list of the 25 largest distributors for the Company Group, each as measured by dollar value for the year ended December 31, 2024 (the “Material Distributors”) which list indicates the dollar value attributable to each such Material Distributor for such period. Since December 31, 2024, (a) no Material Distributor has notified any member of the Company Group in writing or, to the Seller’s Knowledge, provided an oral notice or threat of such Material Distributor’s intention to terminate, or materially alter its relationship with such member of the Company Group, and (b) there has been no material dispute with a Material Distributor (other than in the Ordinary Course of Business).

4.14 Sufficiency of Assets.

(a) The assets and rights of the Company Group include all of the assets (whether tangible or intangible) and rights of each member of the Company Group that were used in the conduct of the OUS Coflex Business. All of the assets of Seller and its Affiliates (excluding members of the Company Group) that are used exclusively in the OUS Coflex Business are included in the Acquired Assets (as defined in the US Purchase Agreement).

(b) Except as set forth on Schedule 4.14(b) of the Disclosure Schedules, all of the assets (whether tangible or intangible) and rights of each member of the Company Group are free and clear of Encumbrances, right of first refusal, option, limitation on transfer or use or assignment or licensing, restrictive easement, charge or any other restriction of any kind.

4.15 Products and Product Liability. There are no Proceedings pending, or, to the Seller’s Knowledge, threatened against any member of the Company Group (a) arising from Actions relating to any injury to person or property or as a result of ownership, possession, provision or use of any of the products that were manufactured, distributed, labeled, packaged, marketed or sold in the conduct of the OUS Coflex Business or (b) relating to any alleged hazard or alleged defect in design, manufacture, materials or workmanship, including any failure to warn or alleged breach of express or implied warranty or representation, relating to such products, nor have there been any such Proceedings since the Lookback Period.

4.16 Intellectual Property.

(a) Schedule 4.16(a)(i) of the Disclosure Schedules sets forth as of the date of this Agreement, a true and complete list of all: (A) issued Patents, (B) registered copyrights, (C) registered Trademarks, (D) pending applications for any of the foregoing items, and (E) internet domain names, URLs, and social media identifiers, in each case forming a part of the Intellectual Property Assets (collectively, the “Registered Intellectual Property”), as well as the application or registration number, the jurisdiction and the record owner for each item. Schedule 4.16(a)(ii) of the Disclosure Schedules sets forth a true, correct and complete list of all Intellectual Property Assets constituting either material unregistered Trademarks, service marks, logos, or the like or material unregistered Software. All Intellectual Property Assets are valid, subsisting and enforceable, and all Registered Intellectual Property is unexpired. No registration relating to the Registered Intellectual Property (if any) is the subject of any Actions. The Company Group has duly made all filings and paid all fees necessary to maintain the Registered Intellectual Property.

(b) Except as set forth on Schedule 4.16(b) of the Disclosure Schedules, the Company Group solely and exclusively owns all Intellectual Property Assets and has the valid right to use, free and clear of all Encumbrances, all other Company Group Intellectual Property. The consummation of the transactions contemplated by this Agreement shall not result in the restriction, limitation, loss or impairment of or payment of any additional amounts with respect to, nor require the consent of any other Person in respect of, the Company Group’s right to own any Intellectual Property Assets, or use or hold for use any other Company Group Intellectual Property as owned, used or held for use in the conduct of the business as currently conducted. With respect to any Company Group Intellectual Property that is licensed by or to any member of the Company Group pursuant to an Intellectual Property License Agreement, such member of the Company Group has acted in accordance with, and have not breached any of, the material terms of such Intellectual Property License Agreement.

(c) Each member of the Company Group and its business as currently conducted, and during the Lookback Period, has not infringed on, diluted, misappropriated, or otherwise violated, and to Seller’s Knowledge, is not now infringing on, diluting, misappropriating, or otherwise violating any Intellectual Property belonging to any Person, and no claim or Action, for which any member of the Company Group has received written notice, has been asserted or is currently pending or, to Seller’s Knowledge, threatened alleging such infringement, dilution, misappropriation, or violation, or otherwise alleging any challenge against Company Group Intellectual Property as to validity, enforceability, use, or ownership. To Seller’s Knowledge, no Person is infringing, diluting, misappropriating, or otherwise violating any Intellectual Property Assets, and no Proceedings or other adversarial claims have been brought or, to Seller’s Knowledge, threatened against any third party by any member of the Company Group.

(d) Each member of the Company Group has taken commercially reasonable actions to protect and enforce the Intellectual Property Assets, including to maintain the confidentiality of the Trade Secrets forming a part of the Company Group Intellectual Property and such actions are reasonable in the industry in which such member of the Company Group operates. No such Trade Secrets have been disclosed or authorized to be disclosed to any Person, other than in the Ordinary Course of Business pursuant to a written confidentiality and non-disclosure Contract, including with respect to each Person that has had or currently has access to any such Trade Secrets. To the Seller’s Knowledge, no Person is in material breach of any Contract referenced in this Section 4.16(d). All Persons who have contributed to, developed or conceived any material Intellectual Property for any member of the Company Group have done so pursuant to a valid and enforceable Contract that presently and irrevocably assigns to the applicable member of the Company Group exclusive ownership of each such Person’s contribution, development or conception and all Intellectual Property rights embodied therein. No Intellectual Property Assets were developed with the use of funds provided by a governmental or educational institution. No present or former employee, partner, officer or director of any member of the Company Group, or agent, outside contractor or consultant of any member of the Company Group, holds any right, title or interest, directly or indirectly, in whole or in part, in or to any Company Group Intellectual Property, and no such Person will, after giving effect to the transactions contemplated by this Agreement, own or retain any ownership rights in or to, have the right to receive any royalty or other payment with respect to, any of the Intellectual Property Assets.

4.17 Permits.

(a) Each member of the Company Group holds, and is, and since the Lookback Period has been, in compliance in all material respects, with all Permits which are required for the operation of the OUS Coflex Business by such member of the Company Group, or that are required for the lawful ownership of its properties and assets. Schedule 4.17(a) of the Disclosure Schedules sets forth a correct and complete list of all Permits that are held by each member of the Company Group (the “Business Permits”) and, except as set forth on Schedule 4.17(a) of the Disclosure Schedules, (i) each member of the Company Group has fulfilled and performed in all material respects its obligations under each of the Business Permits which it holds, and (ii) no written notice of cancellation, default or dispute concerning any Business Permit, or to Seller’s Knowledge, of any event, condition or state of facts described in the preceding clause, has been received by any member of the Company Group, and all of the Business Permits will be available for use by such member of the Company Group as of and immediately after the Closing. No member of the Company Group is, or since the Lookback Period has been, a party to or subject to any Action seeking to revoke, suspend or otherwise limit any Permit.

(b) Except as set forth on Schedule 4.17(b) of the Disclosure Schedules, each Business Permit held by any member of the Company Group is in full force and effect and no member of the Company Group has received any written or, to the Seller’s Knowledge, oral notice of, and, to the Seller’s Knowledge, no event has occurred or circumstance exists that would reasonably be expected (with or without due notice or lapse of time or both) to constitute or result in, a default or violation in any material respect of any term, condition or provision of any such Business Permit, or result in the (or give rise to any right of) revocation, withdrawal, suspension, modification, cancellation, impairment, forfeiture or termination thereof.

(c) Except as set forth on Schedule 4.17(c) of the Disclosure Schedules, each member of the Company Group has timely submitted for renewal all Business Permits necessary to operate and conduct their business that will expire within 90 days of the date hereof and, to the Seller’s Knowledge, no event has occurred or circumstance exists that would reasonably prevent the timely renewal of any such Business Permits. No Business Permit that is material to the Company Group and necessary to operate and conduct the business of the Company Group will be impaired by the consummation of the transactions contemplated by this Agreement that would be material to any member of the Company Group.

4.18 Employment Matters.

(a) Schedule 4.18(a) sets forth a true and complete list of all of the employees of each member of the Company Group (the “Identified Employees”), showing for each employee the following: (i) name; (ii) employing or contracting entity, (iii) location, (iv) status (i.e., full-time, part-time, temporary); (v) title or position; (vi) hire date; (vii) current annual base salary or hourly rate, as applicable; or (viii) commission, bonus or other incentive-based compensation. As of the date hereof, all compensation, including wages, and commissions payable to the Identified Employees for services performed on or prior to the date hereof have been paid in full or accrued and there are no outstanding agreements, understandings or commitments of any member of the Company Group or the Seller with respect to any compensation, commissions or bonuses. Except as set forth in Schedule 4.10(a) of the Disclosure Schedules, the employment of each Identified Employee is “at will.”

(b) Other than the independent contractors set forth on Schedule 4.18(b), there are no independent contractors currently engaged by any member of the Company Group as of the date hereof.

(c) No member of the Company Group is party to or bound by any collective bargaining agreement or relationship with any labor organization and no labor organization has filed or made demand for recognition related to the Identified Employees.

4.19 Employee Benefit Plans.

(a) Schedule 4.19(a) of the Disclosure Schedules contains a complete and accurate list of each Employee Benefit Plan. With respect to each Employee Benefit Plan, the Company Group has made available to Buyer a complete and correct copy of the plan document.

(b) Each Employee Benefit Plan has been established, maintained, funded and administered in all material respects in accordance with its terms and the terms of its funding agreement, if applicable, and in compliance with the applicable requirements of applicable Laws.

(c) Other than in respect of routine claims for benefits, there are no proceedings pending or to Seller’s Knowledge, threatened with respect to any Employee Benefit Plan, or the administrator of any Employee Benefit Plan, in connection with such Employee Benefit Plan, and no Employee Benefit Plan has been the subject of an examination or audit by a Governmental Authority. None of the assets of the Company Group nor any Employee Benefit Plan is subject to any Encumbrances under applicable Laws.

(d) With respect to each Employee Benefit Plan, all payments, premiums, contributions, distributions, reimbursements and accruals for all periods ending on or prior to the Closing Date shall have been made or accrued on the Balance Sheet, and there is no unfunded Liability with respect thereto which is not reflected on the Balance Sheet.

(e) Neither the execution of this Agreement, nor any of the transactions contemplated by this Agreement could (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former employee, individual consultant or independent contractor, director, manager, officer, equity holder or other individual service provider of the Company Group to severance pay or any other payment or benefit (whether in cash, property or the vesting of property); (ii) accelerate the time of payment, funding, or vesting, or increase the amount of compensation due to current or former employee, individual consultant or independent contractor, director, manager, officer, equity holder or other individual service provider of the Company Group; (iii) result in funding or the forfeiture of compensation or benefits due to, or result in the forgiveness of indebtedness of current or former employee, individual consultant or independent contractor, director, manager, officer, equity holder or other individual service provider of the Company Group; (iv) limit or restrict the right of any member of the Company Group or successor thereto to merge, amend or terminate any Employee Benefit Plan; or (v) increase any Liability or the amount payable or result in any other material obligation under an Employee Benefit Plan or otherwise for any current or former employee, individual consultant or independent contractor, director, manager, officer, equity holder or other individual service provider of the Company Group.

4.20 Taxes.

(a) The Company Group and each member of the Company Group (and the Seller in respect of the Company Group) has timely filed (taking into account any applicable valid extension of time within which to file permitted by Law) all Tax Returns which it has been required to file under applicable Laws, and subject to Section 4.20(n) below, all such Tax Returns are true, complete, accurate, and correct in all material respects and have been prepared in compliance with all applicable Laws.

(b) The Company Group and each member of the Company Group (and the Seller in respect of the Company Group) has timely paid in full all Taxes due and owing or required to be paid by it (whether or not such Taxes are shown or required to be shown on a Tax Return referred to in Section 4.20(a)) to the appropriate Taxing Authority with respect to any Tax periods ending on or before December 31, 2024.

(c) Each member of the Company Group is registered for the purposes of sales Tax, use Tax, transfer Taxes, value-added Taxes or any similar Tax in all jurisdictions where it is required by law to be so registered, has complied in all material respects with all laws relating to such Taxes (including by receiving and retaining any appropriate Tax exemption certificates and other applicable documentation).

(d) None of the Tax Returns or Taxes of the Company Group or any member of the Company Group has been or is currently the subject of any Action with respect to Taxes or Tax Returns by any Taxing Authority nor has the Company Group received any written notice from any Taxing Authority (i) that any such Action is contemplated, pending or to the Seller’s Knowledge, threatened (ii) of a request for information relating to Tax matters, (iii) of any notice of deficiency or proposed adjustment for any amount of Tax proposed, asserted or assessed by any Taxing Authority against the Company Group or any member of the Company Group, or (iv) written notice of any Tax liens placed on, or to Seller’s Knowledge, threatened to be placed on, any property of the Company Group. There are no unresolved claims concerning Tax liabilities of the Company Group or any member of the Company Group. No member of the Company Group is subject to any currently effective order, judgment, ruling or decree of any court or Taxing Authority with respect to any Tax.

(e) The Company Group and any member of the Company Group has not entered into a written agreement or waiver extending any statute of limitations or otherwise waived, requested to waive, or been requested to waive the statute of limitations relating to Taxes, agreed to or applied for any extension of time for filing any Tax Return which has not been filed, or consented to extend to a date later than the Closing Date the period in which any Tax may be assessed or collected by any Taxing Authority.

(f) The Company Group and each member of the Company Group has timely withheld or collected, and paid over to the appropriate Taxing Authority to the extent due and owing or required to be paid, all Taxes it is required by Law to withhold or collect in connection with amounts paid or owing to any employee. The Company Group is in material compliance with, and its records contain all information and documents necessary to comply with, all applicable information reporting and withholding requirements under applicable Laws relating to Tax.

(g) There are no Encumbrances for Taxes (other than statutory Encumbrances for current Taxes not yet due and payable) upon any of the assets of the Company Group.

(h) Since the Lookback Period, no written notice has been received by the Company Group from a Taxing Authority in a jurisdiction where the Company Group or any member of the Company Group does not file Tax Returns that the Company Group or any member of the Company Group is or may be subject to Taxes assessed by such jurisdiction.

(i) The Company Group has made available to Buyer accurate and complete copies of all material Tax Returns of the Company Group, and any statements of deficiencies assessed against, or agreed to by, the Company Group for all Tax periods ending on or after December 31, 2023, and all written correspondence to the Company Group from, or from the Company Group to, a Taxing Authority relating thereto.

(j) There is no power of attorney given by or binding upon the Company Group with respect to Taxes for any period for which the applicable statute of limitations (including any waivers or extensions) has not yet expired that is currently in effect.

(k) No member of the Company Group is, or ever been, a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code.

(l) No member of the Company Group is subject to Tax in any country, other than the country in which it was organized, by virtue of having a permanent establishment, fixed place of business, or otherwise.

(m) Since the Lookback Period, each employee and independent contractor of the Company Group has been properly classified for payroll and other employment Tax purposes.

(n) Notwithstanding any other provision in this Agreement to the contrary, Seller is not making any representations or warranties regarding the amount of, or the availability or useability of, any net operating losses (NOLs) of the Company or any other member of the Company Group. Without limiting the generality of the foregoing, the Seller and the Company Group are not deemed to make any representation or warranty under Section 4.20(a) that any losses set forth on the Tax Returns described therein have given rise any to any particular amount of NOLs, even if a Taxing Authority subsequently successfully challenges the accuracy of such Tax Returns.

(o) Notwithstanding any other provision in this Agreement to the contrary, the representations and warranties in this Section 4.20 are the exclusive representations and warranties made by Seller and the Company in this Agreement related to Taxes.

(p) During the period of January 1, 2025 through the date of this Agreement, the Company did not generate any positive taxable income.

4.21 Real Property.

(a) No member of the Company Group owns, nor has ever owned, any title or interest in any real property or rights similar to real estate and has not entered into or has otherwise become a party to an obligation to acquire any title or interest in any real property or rights similar to real estate.

(b) The properties identified on Section 4.21(b) of the Disclosure Schedules are the only real property interests used, held for use, or otherwise, leased, subleased, licensed, or occupied by any member of the Company Group or any of their Subsidiaries or Affiliates (the “Facilities”), and such real property interests constitute all of the real property interests necessary or desirable for the conduct of the OUS Coflex Business by the Company Group as presently conducted. Other than the respective member of the Company Group, there are no parties in possession or parties having any current or future right to occupy any of the Facilities. Such member of the Company Group has a good and valid ownership or leasehold interest, as applicable, in the Facilities, free and clear of all Encumbrances, and such member of the Company Group enjoys peaceful and undisturbed possession of each Facility.

4.22 Conflicts of Interest. No director, manager, or officer of the Seller or any member of the Company Group (a) owns, directly or indirectly, an interest in any Person that is a competitor, customer or supplier of any member of the Company Group or that otherwise has material business dealings with any member of the Company Group; or (b) is a party to, or otherwise has any direct or indirect interest opposed to any member of the Company Group under any Business Contract.

4.23 Environmental Liabilities. To the Seller’s Knowledge, (a) there are no Proceedings pending and served or threatened in writing against any member of the Company Group alleging any violation of or Liability under any applicable Environmental Law; and (b) the OUS Coflex Business does not include products containing any Hazardous Materials, in each case so as to give rise to any material liabilities under applicable Environmental Laws.

4.24 Officers and Managers; Bank Accounts. Schedule 4.24 of the Disclosure Schedules sets forth a correct and complete list of (a) all officers and managers of each member of the Company Group, (b) all bank accounts, safety deposit boxes and lock boxes (designating each authorized signatory with respect thereto) owned or controlled by the Company Group, including the name and location of each bank or other institution in which each of the foregoing is located and (c) all Persons authorized by proxies, powers of attorney or other like instruments to act on behalf of any member of the Company Group.

4.25 International Trade and Anti-Corruption Matters. No member of the Company Group nor, to the Seller’s Knowledge, any of its Representatives has violated (a) any applicable Laws relating to economic or trade sanctions, including the Laws administered or enforced by the United States Department of the Treasury Office of Foreign Assets Control, (b) Laws relating to export, reexport, transfer, or import controls, including the Export Administration Regulations, or (c) U.S. anti-boycott Laws, and none of the foregoing Persons has made any unlawful payment to any official or employee of an Authority, in violation of the U.S. Foreign Corrupt Practices Act of 1977.

4.26 Brokerage. No broker, finder, or advisor is entitled to any fee or commission in connection with the transactions contemplated by this Agreement based on any arrangement made by or on behalf of the any member of the Company Group or any of their Affiliates.

4.27 No Other Representations. Except for the representations and warranties expressly set forth in Article III and this Article IV, the Seller, the Company, nor any of their respective directors, officers, employees, agents, or representatives, makes or shall be deemed to have made any other representation or warranty, express or implied, at law or in equity, with respect to the Seller, the Company, or the transactions contemplated by this Agreement, and any such other representations or warranties are hereby expressly disclaimed.

ARTICLE V

REPRESENTATIONS AND WARRANTIES OF BUYER

Buyer hereby represents and warrants to the Seller as follows.

5.1 Organization; Good Standing. Buyer is a limited liability company duly formed, validly existing, and in good standing under the laws of its jurisdiction of formation. Buyer has all requisite limited liability company power and authority to own, lease, and operate its assets and to conduct its business as currently conducted.

5.2 Authorization and Enforceability. Buyer has all necessary limited liability company power and authority to execute and deliver this Agreement and each other Transaction Document to which it is a party, to perform its obligations hereunder and thereunder, and to consummate the transactions contemplated hereby and thereby. The execution, delivery, and performance by Buyer of this Agreement and such other Transaction Documents have been duly authorized by all requisite action on the part of Buyer. This Agreement and each such Transaction Document, when executed and delivered by Buyer (assuming due authorization, execution, and delivery by the other parties thereto), constitute the legal, valid, and binding obligations of Buyer, enforceable against Buyer in accordance with their respective terms, subject to the Enforceability Exceptions.

5.3 Brokerage. No broker, finder, or other financial advisor is entitled to any fee or commission in connection with the transactions contemplated by this Agreement based upon any arrangement or agreement made by or on behalf of Buyer or its Affiliates.

5.4 Proceedings; Orders. There is pending no pending or, to Buyer’s knowledge, threatened Proceeding, by any Person against Buyer, which if determined adversely to Buyer, would reasonably be expected to have a Material Adverse Effect, nor is Buyer subject to or bound by any currently existing Order that would reasonably be expected to have a Material Adverse Effect.

5.5 Solvency. Buyer is not now Insolvent and will not be rendered Insolvent by the consummation of the transactions contemplated by this Agreement or the other Transaction Documents.

5.6 Sufficient Funds. At the Closing, Buyer will have immediately available funds sufficient for Buyer to pay the Estimated Purchase Price, and any other amounts required to be paid in connection with the consummation of the transactions contemplated by this Agreement.

5.7 No Other Representations. Except for the representations and warranties expressly set forth in this Article V, neither Buyer nor any of its Affiliates, nor any of their respective managers, officers, employees, agents, or representatives, makes or shall be deemed to have made any other representation or warranty, express or implied, at law or in equity, with respect to Buyer or the transactions contemplated hereby, and any such other representations or warranties are hereby expressly disclaimed.

ARTICLE VI

COVENANTS

6.1 Conduct of Business.

(a) From the date of this Agreement until the Closing (the “Interim Period”), and except (i) as otherwise consented to or approved in writing by an authorized officer or agent of Buyer, (ii) as required by any Law or Order, or (iii) as required by this Agreement, the Seller shall cause each member of the Company Group to, and each member of the Company Group shall use its commercially reasonable efforts to conduct its business in the Ordinary Course of Business.

(b) Without limiting the generality of Section 6.1(a), during the Interim Period, and except as (i) otherwise consented to or approved in writing by an authorized officer or agent of Buyer (which consent shall not be unreasonably withheld, conditioned, or delayed), (ii) required by any Law or Order, (iii) in connection with the Pre-Closing Intra-Company Restructuring, or (iv) otherwise required by this Agreement, the Seller shall not, and shall cause each member of the Company Group not to, directly or indirectly, effect or consummate any of the following:

(i) make any change in or amendment to its Organizational Documents;

(ii) issue or sell, or authorize to issue or sell, any shares of capital stock or any other ownership interests, or issue or sell, or authorize to issue or sell, any securities convertible into or exchangeable for, or options, warrants or rights to purchase or subscribe for, or enter into any arrangement or Contract with respect to the issuance or sale of, any shares of capital stock or any other ownership interests;

(iii) split, combine, redeem or reclassify, or purchase or otherwise acquire, any shares of capital stock or its other securities;

(iv) sell, lease, encumber or otherwise dispose of any of its properties or assets other than in the Ordinary Course of Business;

(v) materially amend or terminate any Business Contract or enter into any Contract that would constitute a Business Contract;

(vi) (A) incur or suffer the incurrence of any Indebtedness, (B) assume, guarantee, endorse or otherwise become liable for any Indebtedness of any Person, (C) pledge or hypothecate any of its assets or otherwise permit any of its assets to become subject to any Encumbrance, (D) make any loans or advances to any other Person, other than routine advances to directors, officers or employees and consultants consistent with past practice, or (E) obtain any letters of credit;

(vii) (A) grant or agree to grant to any of their respective directors, officers or employees any increase in any compensation (including base salary or wage rate, bonus, incentive compensation, variable compensation severance, profit-sharing, retirement, deferred compensation, equity or equity-based compensation or insurance) or benefits, (B) establish, enter into, adopt, increase the coverage or benefits provided, amend, modify or terminate Employee Benefit Plan or other arrangement that would be an Employee Benefit Plan if it were in existence as of the date of this Agreement; (C) grant, award or pay any equity or equity-based award, bonus, change in control payment, retention, deferred compensation or other payment or benefit to any current or former employee, officer, director, independent contractor or other service provider of the Company Group; or (D) hire or terminate (other than for cause) any employee or individual service provider with annual base compensation exceeding $100,000;

(viii) make, change, or revoke any material Tax election, consent to any extension or waiver of the limitations period for the assessment of any Tax, file any amended Tax Return, adopt or change any annual accounting period, adopt or change any method, policy or practice of accounting, enter into any settlement or closing agreement relating to any Tax, settle or compromise any Action in respect of Taxes, surrender any right to claim a refund, offset, or other reduction in Tax Liability, or change the tax classification of any member of the Company Group;

(ix) except as may be required by GAAP or other applicable Law, make any material change in its methods, principles and practices of accounting, including Tax accounting policies and procedures;

(x) make any material change in cash management practices or policies, practices or procedures with respect to collection of accounts receivable, establishment of reserves for uncollectible accounts receivable, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue or acceptance of customer deposits;

(xi) acquire (by merger, exchange, consolidation, acquisition of stock or assets, recapitalization or otherwise) any interest in any Person or other business organization or division or material assets thereof;

(xii) cancel or terminate its current insurance policies or cause any of the coverage thereunder to lapse, unless simultaneously with such termination, cancellation or lapse, replacement policies providing coverage equal to or greater than the coverage under the canceled, terminated or lapsed policies for substantially similar premiums are in full force and effect;

(xiii) enter into any agreement containing any provision or covenant restricting in any respect any member of the Company Group’s conduct of business or ability to compete in any line of business;

(xiv) permit to lapse any Intellectual Property Assets;

(xv) settle, or offer or propose to settle any Action involving or against any member of the Company Group;

(xvi) enter into any agreement for the sublease of any of the Facilities or the lease of any Facility or acquire any title or interest in any of the Facilities;

(xvii) incur any capital expenditures or any obligations or liabilities in respect thereof, other than in the Ordinary Course of Business;

(xviii) hire any employee at an annual compensation rate (salary plus bonus) in excess of $150,000;

(xix) enter into, materially amend or modify any Contract with any related party, except for Contracts solely between members of the Company Group;

(xx) enter into any transaction the consummation of which would prevent, impede, delay or have an adverse effect on the consummation of the transactions contemplated by this Agreement; or

(xxi) authorize any of, or offer to commit or agree to take any of, the foregoing actions in respect of which it is restricted by the provisions of this Section 6.1(b).

(c) Nothing contained in this Agreement shall be construed to give to Buyer, directly or indirectly, rights to control or direct the operations of the Company Group prior to the Closing. Prior to the Closing, the Company Group shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision of its operations.

6.2 Access to Information. From and after the date hereof until the earlier of the Closing Date or the termination of this Agreement in accordance with its terms, upon reasonable notice, and subject to any restrictions contained in any confidentiality agreements to which the Seller, any member of the Company Group, or any of their Affiliates is subject (in which case the Seller shall use commercially reasonable efforts to make substitute access arrangements), the Seller and each member of the Company Group shall, and shall cause their Affiliates to, provide to Buyer and its Representatives reasonable access to all books and records (including the ability to make copies thereof), employees, facilities and properties of the Company Group (in a manner so as to not interfere unreasonably with the normal business operations of the Company and its Affiliates) and, during such period, the Company Group shall furnish promptly to Buyer all information concerning the business, properties and personnel of the Company Group as Buyer may reasonably request. Notwithstanding the foregoing, the Company Group shall not be required to disclose any information to Buyer if such disclosure would (y) jeopardize any attorney-client or other privilege or (z) contravene any applicable Law.

6.3 Efforts. Subject to the terms and conditions herein, Buyer, the Seller, and each member of the Company Group shall, prior to the Closing use their commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable to consummate and make effective as promptly as practicable the transactions contemplated by this Agreement (including the satisfaction of the Closing conditions set forth in Article VII).

6.4 Assistance with Filings.Subject to the terms and conditions contained in this Agreement, each of Buyer, the Seller, and the Company Group shall, and shall cause their respective Subsidiaries and Affiliates to, cooperate and use their respective commercially reasonable efforts to make, or cause to be made, all filings or notifications (each, a “Filing” and, collectively, the “Filings”) necessary under applicable Law, including the applications and filings identified on Schedule 6.4 (the “Identified Filings”).

6.5 Exclusivity.

(a) From the date of this Agreement until the earlier of the Closing Date or the termination of this Agreement in accordance with its terms, the Seller and each member of the Company Group shall not, and shall cause their directors, officers, employees, stockholders, Affiliates and Representatives not to, and the directors, officers, employees, stockholders, and Representatives of their Affiliates not to, directly or indirectly, (i) initiate, solicit, or knowingly facilitate or encourage any inquiries or the making of any proposal or offer from any Person or group of Persons that may constitute, or would reasonably be expected to lead to, the direct or indirect acquisition of all or any part of the Equity Securities of any member of the Company Group or all or any part of the business of any member of the Company Group, whether by merger, purchase of stock or equity interests, issuance of stock or equity interests, purchase of assets (other than sales in the Ordinary Course of Business), tender offer or otherwise (each, an “Alternative Transaction”), it being understood that that the acquisition of the Seller’s outstanding equity securities will not be considered an Alternative Transaction so long as the Seller remains bound by this Agreement in accordance with its terms, (ii) engage in, enter into, continue or otherwise participate in any discussions or negotiations with any Person or group of Persons (other than Buyer) with respect to, or provide any non-public information or data concerning, any member of the Company Group to any Person or group of Persons (other than Buyer) relating to any proposal, indication of interest, inquiry, request or offer that constitutes, or would reasonably be expected to result in, an Alternative Transaction, or (iii) approve, endorse, recommend or enter into any acquisition agreement, purchase agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement relating to an Alternative Transaction. The Seller shall promptly notify Buyer if any Person makes any proposal, offer or inquiry with respect to an Alternative Transaction.

(b) From and after the date of this Agreement, until the earlier of the Closing Date or the termination of this Agreement in accordance with its terms, the Seller will, and will cause each member of the Company Group, and its and their Affiliates and Representatives to, (i) immediately cease and cause to be terminated any existing communications, discussions, negotiations and other activities with any Person or its Representatives (other than Buyer and its Representatives) with respect to any Alternative Transaction, or any inquiry, proposal, offer or indication of interest that could reasonably be expected to lead to any Alternative Transaction; (ii) immediately terminate and discontinue any access of any Person and its Representatives (other than Buyer and its Representatives and the Seller and its Representatives) to any data room (virtual, physical or otherwise) or similar information-sharing platform containing any of the Seller’s or any member of the Company Group’s confidential information with respect to an Alternative Transaction; and (iii) immediately request, and use reasonable best efforts to cause, the prompt return or destruction of any confidential information previously furnished or made available to, such Persons and their Representatives through such platform or in connection with a possible Alternative Transaction.

(c) The Seller will promptly inform each member of the Company Group, and its and their Subsidiaries, Affiliates and Representatives of the restrictions set forth in this Section 6.5. Any breach or violation of the restrictions set forth in this Section 6.5 by any Subsidiary, Affiliate or Representative of the Seller, whether or not such Subsidiary, Affiliate or Representative is so authorized and whether or not such Subsidiary, Affiliate or Representative is purporting to act on behalf of the Seller or otherwise, will be deemed to be a breach or violation of this Section 6.5 by the Seller.

6.6 Notifications; Stockholder Litigation.

(a) From and after the date of this Agreement until the earlier of the Closing Date or the termination of this Agreement in accordance with its terms, the Seller shall deliver to Buyer prompt notice of any matter, event, circumstance, change or effect arising after the date hereof if, and only if, to the Knowledge of the Seller, such matter, event, circumstance, change or effect has caused, or would reasonably be expected to cause, any of the conditions set forth in Section 7.2(a) or Section 7.2(b) not to be satisfied as of the Closing; provided, that no such notification shall impact Buyer’s right to assert a failure of the conditions set forth in Section 7.2(a) or Section 7.2(b). From and after the date of this Agreement until the earlier of the Closing Date or the termination of this Agreement in accordance with its terms, Buyer shall deliver to the Company prompt notice of any matter, event, circumstance, change or effect arising after the date hereof if, and only if, to the Buyer’s knowledge, such matter, event, circumstance, change or effect has caused, or would reasonably be expected to cause, any of the conditions set forth in Section 7.3(a) or Section 7.3(b) not to be satisfied as of the Closing; provided, that no such notification shall impact the Company’s right to assert a failure of the conditions set forth in Section 7.3(a) or Section 7.3(b).

(b) The Seller will promptly advise Buyer orally and in writing of any Proceeding, whether commenced prior to or after the date of this Agreement, brought against the Seller, the Company, any member of the Company Group, or any of their directors or officers relating to this Agreement or the transactions contemplated by this Agreement and will keep Buyer fully informed regarding any such Proceeding, including discussions and developments in respect of settlement thereof.

6.7 No Public Disclosure. No press release or public announcement related to this Agreement, the Transaction Documents or the transactions contemplated hereby or thereby, shall be issued or made by any Party (nor will any Party permit any of its advisors or Affiliates to do any thereof) without the prior written approval of Buyer and the Seller, (a) unless, in the reasonable opinion of counsel, such communication is required by applicable Law, in which case the Seller and Buyer shall be afforded a reasonable opportunity to review and comment on such press release, announcement or communication prior to its issuance, distribution or publication, and (b) except for disclosure made in connection with the enforcement of any right or remedy relating to this Agreement, the Transaction Documents or the transactions contemplated hereby or thereby. Nothing herein shall prevent (i) any Party from at any time furnishing any information to any Governmental Entity or from making any disclosures required or that a Party deems appropriate under the Exchange Act (including furnishing or filing this Agreement or any information contained herein in any filings made under the Exchange Act), or under the rules and regulations of any national securities exchange on which such Party’s (or such Party’s Affiliate’s) shares of capital stock are listed, or (ii) Buyer or its Affiliates or Representatives from disclosing information regarding this Agreement and the transactions contemplated hereby to the any source of the Financing, including, but not limited to, financial institutions, investors and limited partners. Nothing herein shall prevent the Seller from (i) filing this Agreement as an exhibit to Current Report on Form 8-K with the U.S. Securities and Exchange Commission after the execution of this Agreement or (ii) making a press release or public announcement, and making any disclosures required or that the Seller deems appropriate under the Exchange Act, which may include filing a Current Report on Form 8-K with the U.S. Securities and Exchange Commission, to announce and disclose any termination of this Agreement, the reason(s) for the termination, and the terms of such termination; provided, however, that in the event the Seller makes any such press release, public announcement, or disclosure pursuant to this clause (ii), Buyer shall be afforded a reasonable opportunity to review and comment on such press release, announcement or disclosure, and the Seller shall consider in good faith any such comments, in each case, prior to making such press release, announcement or disclosure.

6.8 Restrictive Covenants.

(a) The Seller hereby covenants and agrees that during the three-year period beginning on the Closing Date, the Seller shall not, and shall cause its Affiliates not to, directly or indirectly, engage in any business that is directly competitive with the Coflex Business or own any interest in, operate, control, have a financial interest which provides any control of, or participate with or in, any Person producing, designing, providing, soliciting orders for, selling, distributing, consulting to, or marketing or re-marketing products or services, that are directly competitive with the Coflex Business, in each case, anywhere in the world, except in the United States of America; provided, that nothing in this Section 6.8(a) shall prohibit the Seller or any its Affiliates from (i) owning or holding less than five percent of the outstanding shares of any class of stock that is regularly traded on a recognized U.S. or non-U.S. securities exchange or over-the-counter market, (ii) engaging in any of its existing businesses, it being acknowledged by Buyer that the existing businesses of the Seller and its Affiliates (other than the Coflex Business) are not engaged in any activity that is directly competitive with the Coflex Business as of the Closing Date, or (iii) acquiring any Person, so long as such acquired Person did not derive more than 10% of its revenues in most recently completed fiscal year from the sale of products that are directly competitive with the products sold in the Coflex Business as of the Closing Date.

(b) The Seller hereby covenants and agrees that during the two-year period beginning on the Closing Date, the Seller shall not, and shall cause its Subsidiaries and Affiliates not to, directly or indirectly, hire, recruit, solicit, contact, or approach for employment, hiring, or engagement (whether as an employee, consultant, agent, independent contractor, or otherwise), or encourage to leave his or her employment or consulting relationship with Buyer or any of its Subsidiaries or Affiliates, any Person who is, or was at any time during the six months immediately preceding the Closing Date, an employee of the Coflex Business as operated by any member of the Company Group or otherwise seek or attempt to influence or alter any such Person’s relationship with Buyer or any of its Subsidiaries or Affiliates; provided, that nothing in this Section 6.8(b) shall prohibit the Seller, or any of its Subsidiaries or Affiliates from any: (i) general solicitation for employment (including in any newspaper or magazine, over the internet, or by any search or employment agency), if not specifically directed towards any such Person; (ii) hiring of any such Person where the initial contact with such individual regarding such hiring arose from any such general solicitation; or (iii) soliciting for employment or hiring any individual who at the time of such solicitation and hiring has not been employed by Buyer or any of its Subsidiaries or Affiliates of Buyer for at least six months prior to such solicitation.

(c) The Seller recognizes and acknowledges that, as of the Closing Date, it will have knowledge of confidential or other proprietary information relative to the activities of Buyer as such activities relate to the Coflex Business, including information relating to financial statements or other financial information, clients, customers, potential clients or customers, employees, suppliers, equipment, designs, discoveries, drawings, programs, strategies, analyses, profit margins, pricing information, Contracts, sales and marketing information or materials, methods of operation, plans, processes, research, systems, techniques, Intellectual Property, products, technologies, materials, innovations, improvements, technical know-how, developments, strategies, ideas, prospects, tangible or intangible work product or other proprietary information, in each case related to the Coflex Business (“Confidential Information”). In light of the foregoing, during the three-year period beginning on the Closing Date, the Seller shall, and shall cause its Affiliates, directors, officers, employees and Representatives to, maintain the confidentiality of, and refrain from using or disclosing for any purposes, whether directly or indirectly, to any Person, all Confidential Information that exclusively relates to the Coflex Business. Nothing in this Section 6.8(c) shall prohibit (i) the disclosure of any Confidential Information that is required by applicable Law, or (ii) the disclosure of Confidential Information after any such information is in the public domain through no act on the part of the Seller or any of its Affiliates, directors, officers, employees or representatives.

(d) The Seller acknowledges and agrees that the length of time, scope, and geographic coverage of the covenants set forth in this Section 6.8 are fair and reasonable given the benefits the Seller has received under this Agreement. The Seller further agrees that it will not challenge the reasonableness of the time and scope in any Action, regardless of who initiates such Action. The Seller further acknowledges and agrees that the covenants set forth in this Section 6.8 are necessary for the protection of Buyer’s legitimate business interests and that Buyer would not have entered into this Agreement unless the Seller had agreed for it and its Subsidiaries and Affiliates to be irrevocably bound by the covenants contained in this Section 6.8, that irreparable injury will result to Buyer if the Seller or any of its Subsidiaries and Affiliates breach any of the terms of this Section 6.8, and that in the event of an actual or threatened breach by the Seller or any of its Subsidiaries and Affiliates of any of the provisions contained in this Section 6.8, Buyer would have no adequate remedy at Law. The Seller accordingly waives, on behalf of itself and its Subsidiaries and Affiliates, the defense of adequacy of a remedy at Law, and agrees that in the event of any actual or threatened breach by it or any of its Subsidiaries or Affiliates of any of the provisions contained in this Section 6.8, Buyer shall be entitled to injunctive and other equitable relief without (i) the posting of any bond or other security, (ii) the necessity of showing actual damages, and (iii) the necessity of showing that monetary damages are an inadequate remedy. Nothing contained in this Section 6.8 shall be construed as prohibiting Buyer from pursuing any other remedies available to it for such breach or threatened breach, including the recovery of any damages that it is able to prove. The Seller shall be liable for any breach by any of its Subsidiaries and Affiliates of this Section 6.8.

(e) This Section 6.8 shall be deemed to consist of a series of separate and independent covenants and shall be worldwide in geographic scope. The Parties expressly agree that the character, duration and scope of this Section 6.8 are reasonable and necessary for the protection of Buyer’s legitimate interests in the goodwill of the OUS Coflex Business in light of the circumstances as they exist on the date hereof and the consideration for the covenants contained in this Section 6.8 is included in the consideration payable pursuant to Section 2.2. Should a determination nonetheless be made by a court of competent jurisdiction at a later date that the character, duration or geographical scope of this Section 6.8 is void, unenforceable, or unreasonable in light of the circumstances as they then exist, then it is the intention and the agreement of the Seller (on behalf of itself and its Subsidiaries and Affiliates) that this Section 6.8 shall be construed by the court in such a manner as to impose only those restrictions (including with any such modification as may be required to make a restriction valid and enforceable) on the conduct of the Seller and its Subsidiaries and Affiliates that are valid, enforceable, and reasonable in light of the circumstances as they then exist and as are necessary to assure Buyer of the intended benefit of this Section 6.8. If, in any Action, a court shall refuse to enforce all of the separate covenants deemed included in this Section 6.8 because, taken together, they are more extensive than necessary to assure Buyer of the intended benefit of this Section 6.8, it is expressly understood and agreed among the Parties that those of such covenants that, if eliminated, would permit the remaining separate covenants to be enforced in such Action shall, for the purpose of such Action, be deemed eliminated from the provisions of this Section 6.8 and the Parties shall negotiate in good faith to replace such void or unenforceable covenant with a valid provision which, as far as possible, has the same commercial effect as the provision which it replaces.

6.9 Buyer’s Financing.

(a) During the Interim Period, Buyer shall use commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary or advisable to obtain financing, on terms acceptable to Buyer, for the purposes of funding the consummation of the transactions contemplated by this Agreement on the Closing Date (the “Financing”). Buyer will promptly inform Seller when it has obtained an unconditional commitment to provide the Financing (except for conditions that, by their nature, will only be satisfied at the time the Financing is provided) and, upon request of Seller, provide evidence of such commitment.

(b) Prior to the Closing Date, the Seller shall use commercially reasonable efforts to, and to cause each member of the Company Group to, provide to Buyer, at Buyer’s sole cost and expense, such reasonable cooperation in connection with the arrangement of the Financing as is reasonably necessary and customary for financings and reasonably requested in writing by Buyer. Nothing in this Section 6.9(b) shall require such cooperation to the extent it would (i) cause any condition to Closing set forth in Article VII to fail to be satisfied or otherwise cause any breach of this Agreement, (ii) require the Seller or any member of the Company Group to take any action that will conflict with or violate any Laws prior to the Closing Date, (iii) result in the Seller or any member of the Company Group otherwise incurring any Liability or undertaking any obligation in connection with the Financing, (iv) result in any officer or director of the Seller or any member of the Company Group incurring any personal liability with respect to any matters relating to the Financing, or (v) require the Seller or any member of the Company Group to create or develop new reports or information or provide reports or furnish information other than in the form in which the reports or information currently exists.

6.10 Tax Matters.

(a) Except for the Buyer Assumed Taxes, which Buyer shall be solely responsible for as well as for any Taxes arising out of the operation of the Company Group after the Closing, Seller shall be solely responsible for: (i) any Tax imposed on or relating to any member of the Company Group with respect to any Pre-Closing Tax Liability Period; (ii) all Taxes of any member of an affiliated, consolidated, combined or unitary group of which any member of the Company Group is or was a member with respect to any Pre-Closing Tax Liability Period, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local, or non-U.S. Law or regulation, (iii) all Taxes of any Person imposed on any member of the Company Group as a transferee or successor, by contract, pursuant to any Law, rule, or regulation which Taxes relate to an event or transaction with respect to any Pre-Closing Tax Liability Period; or (iv) from and after the Closing Date, the costs of preparing, amending, and/or defending any Tax Return of any member of the Company Group for a Pre-Closing Tax Liability Period. To the extent that any member of the Company Group has, prior to Closing, paid or prepaid any Tax, and such member of the Company Group or Buyer receives a cash Tax refund (or claims a credit in lieu of a cash Tax refund) as a result of such pre-Closing payment by such member of the Company Group, the amount of the Tax refund or credit that is attributable to any Tax paid or prepaid by the Company for any Pre-Closing Tax Liability Period shall be reimbursed by Buyer to Seller, within 20 days after the Tax Return reflecting the amount of such refund or credit is filed by such member of the Company Group or Buyer, net of (1) Taxes payable by the Buyer, any member of the Company Group, or their Affiliates in obtaining such refund or credit, (2) any reasonable out-of-pocket costs associated in obtaining such refund or credit, and (3) amounts required to be withheld on such payment to Seller. If there is a subsequent reduction by the applicable taxing authority of any amounts with respect to which a payment has been made to Seller pursuant to this Section 6.10(a), then Buyer shall off-set all amounts from the Note (to the extent any such amounts remain outstanding under the Note), such amounts to be equal to such reduction plus any interest or penalties imposed by the taxing authority with respect to such reduction.

(b) Seller shall pay in full to Buyer any amount due and that Seller is responsible for under Section 6.10(a) in immediately available funds at least five business days before the due date of the Taxes to which such payment relates (or if such Taxes are past-due, then within ten business days of Buyer’s demand for such payment).

(c) For purposes of this Agreement, in the case of any Tax period that includes (but does not end on) the last day of the Pre-Closing Tax Liability Period (a “Straddle Period”), the amount of any Taxes of the Company Group for a Straddle Period which relate to the Pre-Closing Tax Liability Period will be deemed to be the amount of such Tax for the entire Straddle Period multiplied by a fraction the numerator of which is the number of days in the Straddle Period that occur on or before the last day of the Pre-Closing Tax Liability Period and the denominator of which is the total number of days in such Straddle Period; provided, however, and for the avoidance of doubt that any Taxes arising out of the Pre-Closing Intra-Company Restructuring are entirely attributed to Buyer and are included within Buyer Assumed Taxes.

(d) Prior to Closing, Seller shall file an amended Tax Return of the Company for the 2023 Tax period (the Tax period in which Seller acquired all issued and outstanding shares of equity securities of the Company) that makes an application to uphold all unused losses and loss carryforwards of the Company for the 2023 Tax period as conditional loss carryforwards (fortführungsgebundener Verlustvortrag) within the meaning of section 8d German corporate income tax act (Körperschaftsteuergesetz) (the “2023 German Tax Filing”); provided however, Buyer shall be afforded a reasonable opportunity to review and comment on such 2023 German Tax Filing, and the Seller shall consider in good faith any such comments, in each case, prior to filing the 2023 German Tax Filing.

(e) From and after the Closing Date, and only as it relates to any Pre-Closing Tax Liability Period but excluding any income Tax Return for any period beginning on or after January 1, 2025, Seller shall (i) prepare and timely file, or cause to be prepared and timely filed, all Tax Returns required to be filed with the applicable Taxing Authority for each member of the Company Group for taxable periods ending on or before the Pre-Closing Tax Liability Period (the “Seller Returns”) and (ii) pay all Taxes shown as due on such Seller Returns no later than the due date of such Tax Returns as finally determined under this Agreement, except for any Buyer Assumed Taxes, which shall be the sole responsibility of Buyer. All such Seller Returns shall be prepared consistent with past practice to the extent permitted by applicable Law. Seller shall provide to Buyer a draft of each such Seller Return prior to the due date of such Seller Return so as to provide a reasonable time for Buyer to review and comment on each such Seller Return. Buyer will prepare or cause to be prepared and file or cause to be filed all Tax Returns for each member of the Company Group that are filed after the Closing Date for periods beginning on or after January 1, 2025 or otherwise relating to any Buyer Assumed Taxes (the “Buyer Returns”) and Buyer shall fully, accurately, and completely disclose, the Pre-Closing Intra-Company Restructuring on the first such Tax Return to be filed after the Closing. Prior to filing any such income Tax Return that includes a Straddle Period or that includes a refund or credit for Taxes that were paid or prepaid by any member of the Company Group for any Pre-Closing Tax Liability Period, Buyer will permit Seller a reasonable time to review and comment on each such Buyer Return. Seller shall pay to Buyer the amount of any Taxes due with or in respect of any such Buyer Return to the extent relating to a Pre-Closing Tax Liability Period or the Straddle Period relating thereto, as computed pursuant to Section 6.10(c), in accordance with Section 6.10(b) as finally determined under this Agreement.

(f) Each party hereto shall, and shall cause its Subsidiaries and Affiliates to, provide to each of the other parties hereto such cooperation and information as any of them reasonably may request in filing any Tax Return, determining a Liability for Taxes or in conducting any audit or other Proceeding in respect of Taxes. Such cooperation and information shall include providing copies of all relevant portions of relevant Tax Returns, together with relevant accompanying schedules and relevant work papers, relevant documents relating to rulings or other determinations by Taxing Authorities and relevant records concerning the ownership and Tax basis of property, which any such party may possess. Seller shall turn over to Buyer copies of all Tax Returns of each member of the Company Group for the last six years, and the related schedules and work papers, and all material records and other material documents in its possession, relating to Taxes of each member of the Company Group, in each case to the extent possession or control of Seller or any of its Affiliates. Seller may retain copies of the Tax Returns and records that are provided to Buyer. From and after the Closing Date, Buyer will, at the request of Seller, provide copies to Seller of the Tax Returns of any member of the Company Group for any Pre-Closing Tax Liability Periods and records related thereto that are in the possession or control of Buyer.

(g) All Tax sharing agreements or similar agreements and powers of attorney with respect to or involving any member of the Company Group shall be terminated as of the Closing Date and, after the Closing Date, no member of the Company Group shall be bound thereby or have any Liability thereunder.

(h) All transfer, documentary, stamp, registration and other such Taxes, and all conveyance fees, recording charges and other fees and charges (including any penalties and interest) incurred in connection with consummation of the transactions contemplated by this Agreement shall be paid by Buyer when due, and except as set forth in this Section 6.10, Buyer shall, at its own expense, file all necessary Tax Returns and other documentation with respect to the Taxes, fees and charges described in this paragraph.

(i) If Buyer or any member of the Company Group receives notice of any audit, Proceeding, or other inquiry with respect to Taxes (each, a “Tax Contest”) for any Pre-Closing Tax Liability Period (including any portion of a Straddle Period) which would increase the Tax liability of Seller or any member of the Company Group under applicable Law or pursuant to this Agreement, Buyer shall as soon as reasonably practicable, inform Seller of such notice provided. Buyer shall allow Seller, at the sole expense of Seller, to manage, control and defend, with reasonable input from Buyer, any such Tax Contest to the extent (i) Seller conducts the defense of such Tax Contest actively, diligently and in good faith; provided, that if Seller so assumes control, Buyer may participate in the conduct of such Tax Contest at its own expense, and Seller shall not concede or settle any such Tax Contest without the prior written consent of Buyer (such consent not to be unreasonably withheld, conditioned, or delayed) provided that such concession or settlement (i) shall not require Buyer or any of its Subsidiaries or Affiliates (including, after the Closing, any member of the Company Group), to pay, reimburse, or expend any fees, costs, expenses, interest or penalties, (ii) shall include an express, unconditional and irrevocable release of the Company Group from all Liabilities with respect to any such Tax Contest, and (iii) shall not include any finding or admission of any violation of Law or wrongdoing by any member of the Company Group in connection therewith. If Seller notifies Buyer that Seller does not desire to control the defense of any such Tax Contest, then Buyer shall control the defense of such Tax Contest; provided, however, that Buyer shall not concede or settle any such Tax Contest without the prior written consent of Seller (such consent to not be unreasonably withheld, conditioned, or delayed)

(j) Following the Closing, none of Buyer or any of its Affiliates (including the Company Group) shall (i) amend any Tax Return or claim any refund of Taxes to the extent that such Tax Return or refund claim relates to any Pre-Closing Tax Liability Period; (ii) make or change any Tax election or Tax accounting method or practice with respect to or that has retroactive effect to any Pre-Closing Tax Liability Period; (iii) initiate or participate in any voluntary disclosure (or other communication with a Governmental or Taxing Authority reasonably expected to have a similar effect) or resolve any audit or inquiry with any Governmental Authority with respect to any Pre-Closing Tax Liability Period, or (v) take any action to extend the applicable statute of limitations with respect to any such Tax Returns of the Company Group for any Pre-Closing Tax Liability Period, unless (A) the Seller consents to such action, such consent not to be unreasonably withheld, delayed or conditioned, or (B) the Buyer notifies the Seller that Buyer believes such action is required by applicable Law.

(k) Without the written consent of Seller, Buyer will not make a Section 338(g) election with respect to the direct or indirect acquisition of any members of the Company Group pursuant to this Agreement.

6.11 Pre-Closing Intra-Company Restructuring. Following the date of this Agreement, Seller shall take all actions reasonably necessary (i) take the actions set forth on Schedule 6.11 of the Disclosure Schedules (the “Pre-Closing Intra-Company Restructuring”) and (ii) transfer and assign all outstanding equity interest of Paradigm Spine UK Limited from Seller to the Company.

6.12 Cooperation and Further Assurances. After the Closing, (a) each of the Parties shall, and shall cause its respective Subsidiaries and Affiliates to, execute and deliver such additional documents, instruments, conveyances and assurances and take such further reasonable actions as may be required to carry out the provisions hereof and give effect to the transactions contemplated by this Agreement and (b) the Seller will execute and deliver to Buyer such further instruments of conveyance and transfer as Buyer may reasonably request in order to fully convey and transfer the Shares to Buyer.

6.13 Release. Effective as of the Closing, (a) Seller, on behalf of itself and its Subsidiaries and Affiliates, and each of their respective successors and assigns, hereby irrevocably and unconditionally releases and forever discharges Buyer, each member of the Company Group, each of their Subsidiaries and Affiliates, and each of their respective past, present, and future officers, directors, managers, members, equityholders, employees, agents, Representatives, successors, and assigns (collectively, the “Buyer Released Parties”), and (b) Buyer, on behalf of itself and its Affiliates, and each of their respective successors and assigns, hereby irrevocably and unconditionally releases and forever discharges the Seller and its Affiliates, and each of their respective past, present, and future officers, directors, managers, members, equityholders, employees, agents, Representatives, successors, and assigns (collectively, the “Seller Released Parties”), from any and all rights, actions, causes of action, claims, demands, liabilities, damages, judgments, and obligations of any kind or nature whatsoever, whether direct or indirect, known or unknown, accrued or unaccrued, suspected or unsuspected, liquidated or unliquidated, or due to become due, fixed, matured, or contingent, and whether arising at law, in equity that any such releasing party ever had, now has, or may hereafter have against any of the Buyer Released Parties or Seller Released Parties, as applicable, in each case based upon facts, circumstances or occurrences, solely to the extent that the same relate to the operation of the OUS Coflex Business. Notwithstanding the foregoing, nothing in this Section 6.12 shall release, waive, or limit any claims or rights of either party (i) under this Agreement or any Transaction Document, or (ii) relating to Fraud.

ARTICLE VII

CONDITIONS PRECEDENT

7.1 Mutual Conditions of the Obligations the Parties. The respective obligations of each of Buyer and the Seller to effect the transactions contemplated by this Agreement are subject to the satisfaction or waiver (if permissible under applicable Law) at or prior to the Closing of each of the following conditions:

(a) no statute, rule, regulation, executive Order, decree, temporary restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction or other Governmental Authority or other legal restraint or prohibition preventing the consummation of the transactions contemplated by this Agreement shall be pending or in effect, and no Action to challenge the consummation of the transactions contemplated by this Agreement shall be pending; and

(b) The consummation of the transactions contemplated by the US Purchase Agreement shall have occurred, such that, for the avoidance of doubt, the closing thereof and the Closing of this Agreement shall occur simultaneously.

7.2 Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement are subject to the satisfaction, or waiver (if permissible under applicable Law) by Buyer, at or prior to the Closing of the following additional conditions:

(a) (i) each of the representations and warranties of the Seller set forth in Section 3.1 (Organization; Good Standing), Section 3.2 (Authorization and Enforceability), Section 3.4 (Ownership of Equity Securities) and of the Seller and the Company set forth in Section 4.1 (Organization; Good Standing), Section 4.2 (Authorization and Enforceability), clause (i) of Section 4.3 (Non-Contravention), Section 4.7 (Coflex Business), and Section 4.20 (Taxes) (collectively, the “Seller and Company Group Fundamental Representations”) 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 for such representations and warranties that are made solely as of an earlier date, in which case such representations and warranties will be true and correct in all respects as of such other date) except with respect to the Seller and Company Group Fundamental Representation set forth in Section 4.7 and Section 4.20, where the failure of such Seller and Company Group Fundamental Representation to be true and correct as of the aforementioned periods would not have more than a de minimis effect on the OUS Coflex Business; and (ii) each of the other representations and warranties of the Seller or the Company Group set forth in this Agreement shall be true and correct in all respects (without giving effect to any limitation indicated by the words “Material Adverse Effect”, or “in all material respects”, “in any material respect,” “material”, or “materially”) as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except for such representations and warranties that are made solely as of an earlier date, in which case such representations and warranties will be true and correct in all respects as of such other date), except where the failure of such other representations and warranties to be true and correct as of the aforementioned periods, individually or in the aggregate, has not had and would not be reasonably expected to have a Material Adverse Effect;

(b) the Company must have performed or complied in all material respects with all covenants, obligations and agreements required to be performed by it or complied with by it under this Agreement at or prior to the Closing;

(c) there shall not have been any change, condition, event or development since the date of this Agreement that, individually or in the aggregate, has caused or would reasonably be expected to cause a Material Adverse Effect;

(d) Seller shall have filed, or caused to be filed, the 2023 German Tax Filing and shall have provided Buyer with reasonable evidence of such filings; and

(e) Buyer shall have received the items to be delivered by the Company pursuant to Section 2.6(a).

7.3 Conditions to Obligations of the Seller. The obligations of the Seller to effect the transactions contemplated by this Agreement are subject to the satisfaction, or waiver (if permissible under applicable Law) by the Seller, at or prior to the Closing of the following additional conditions:

(a) (i) each of the representations and warranties of Buyer set forth in Section 5.1 (Organization; Good Standing), Section 5.2 (Authorization and Enforceability), Section 5.5 (Solvency), and Section 5.6 (Sufficient Funds) (collectively, the “Buyer Fundamental Representations”, and together with the Seller and Company Group Fundamental Representations, the “Fundamental Representations”) 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 for such representations and warranties that are made solely as of an earlier date, in which case such representations and warranties will be true and correct in all respects as of such other date), and (ii) each of the other representations and warranties of Buyer set forth in this Agreement shall be true and correct in all respects (without giving effect to any limitation indicated by the words “Material Adverse Effect,” “in all material respects,” “in any material respect,” “material,” or “materially”) as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except for such representations and warranties that are made solely as of an earlier date, in which case such representations and warranties will be true and correct in all respects as of such other date), except where the failure of such other representations and warranties to be true and correct as so “in any material respect,” “material,” or “materially”) of the aforementioned periods, individually or in the aggregate, has not had and would not be reasonably expected to have a material adverse effect on Buyer’s ability to consummate the transactions contemplated by this Agreement;

(b) Buyer must have performed or complied in all material respects with all covenants, obligations and agreements required to be performed by it or complied with by it under this Agreement at or prior to the Closing; and

(c) the Seller shall have received the items to be delivered by Buyer pursuant to Section 2.6(b).

ARTICLE VIII

TERMINATION

8.1 Termination. This Agreement may be terminated, and the transactions contemplated hereby may be abandoned at any time prior to the Closing:

(a) by mutual written consent of Buyer and the Seller;

(b) by Buyer, on the one hand, or the Seller, on the other hand, if the Closing shall not have occurred on or prior to the Termination Date; provided, however, that a Party’s right to terminate this Agreement pursuant to this Section 8.1(b) shall not be available to such terminating Party if the primary cause of the failure to consummate the Closing is a breach by such terminating Party of its representations, warranties, obligations or covenants under this Agreement; provided, further, however, that this provision may be waived by Buyer if the US Purchase Agreement is terminated by Buyer pursuant to Section 8.1(c) thereof, or by the Seller, if the US Purchase Agreement is terminated by the Company Group (as defined in the US Purchase Agreement) pursuant to Section 8.1(d) thereof;

(c) by Buyer, if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Seller contained in this Agreement, or any such representation or warranty shall be untrue, such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied and, in either such case, such breach or condition is not curable or, if curable, is not cured prior to the earlier of (i) 30 days after written notice thereof is given by Buyer to the Seller or (ii) the Termination Date; provided, however, that Buyer shall not have the right to terminate this Agreement pursuant to this Section 8.1(c) if Buyer is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and such breach would be the primary cause of a condition set forth in Section 7.1 or Section 7.2 not to be satisfied;

(d) by the Seller, if there shall have been a breach of any representation, warranty, covenant or agreement on the part of Buyer contained in this Agreement, or any such representation or warranty shall be untrue, such that the conditions set forth in Section 7.1 or Section 7.3 would not be satisfied and, in either such case, such breach or condition is not curable or, if curable, is not cured prior to the earlier of (i) 30 days after written notice thereof is given by the Seller to Buyer or (ii) the Termination Date; provided, however, that the Seller shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Seller is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and such breach would be the cause of a condition set forth in Section 7.1 or Section 7.3 not to be satisfied;

(e) by either Buyer, on the one hand, or by the Seller, on the other hand, if any Governmental Authority shall have issued an Order or ruling or taken any other Action permanently enjoining, restraining or otherwise prohibiting the Closing and such Order or ruling or other Action shall have become final and non-appealable;

(f) By Buyer if the US Purchase Agreement is terminated in accordance with its terms for any reason other than pursuant to Section 8.1(d) thereof; or

(g) By the Seller if the US Purchase Agreement is terminated in accordance with its terms for any reason other than pursuant to Section 8.1(c) thereof.

8.2 Notice and Effect of Termination.

(a) Any Party desiring to terminate this Agreement pursuant to Section 8.1 (the “Terminating Party”) shall give written notice of such termination to the other Parties to this Agreement; provided, however, that in the event the Terminating Party validly delivers a written notice of termination pursuant to the terms hereof, then the non-Terminating Party shall thereafter have no right to terminate this Agreement under any provision hereof, regardless of whether the conditions permitting such termination would otherwise be satisfied, such that, for the avoidance of doubt, once the Terminating Party has exercised its right to terminate this Agreement by delivering written notice in accordance with the applicable provisions herein, the non-Terminating Party shall have no right to terminate this Agreement, and such rights of the non-Terminating Party shall be deemed waived and of no further force or effect.

(b) In the event of the termination of this Agreement pursuant to Section 8.1, except as set forth in this Section 8.2(b), this entire Agreement shall forthwith become void (and there shall be no Liability or obligation on the part of Buyer, the Seller, or any member of the Company Group, or any of their respective Representatives) with the exception of, (i) Liability of the Seller or the Company for any willful breach of this Agreement prior to such termination, or in the case of the Seller or Buyer, Fraud (which neither the Seller, Buyer, the Company, nor any member of the Company Group shall be relieved from by virtue of the termination of this Agreement in accordance with its terms), (ii) the prohibition on public disclosure in Section 6.7, (iii) this Section 8.2, and (iv) Article X, which will each survive the termination of this Agreement in accordance with their respective terms.

ARTICLE IX

SURVIVAL; INDEMNIFICATION

9.1 Survival. Subject to the limitations and other provisions of this Agreement, the representations and warranties of the Parties contained in this Agreement shall survive the Closing and will remain operative and in full force and effect after the execution and delivery of this Agreement and the consummation of the transactions contemplated herby for a period of 15 months after the Closing Date, except that (a) the Fundamental Representations shall survive for a period of four (4) years after the Closing Date; provided however, that the representations and warranties in and Section 4.19 (Employee Benefit Plans) and Section 4.20 (Taxes) shall survive until 30 days after the expiration of the applicable statute of limitations applicable to claims regarding the subject matter of such representations and warranties (including any extensions or waivers thereof). None of the covenants or other agreements contained in this Agreement shall survive the Closing, except (i) Section 6.10 shall survive the Closing for a period of 180 days following the date on which the applicable assessment or other notice with respect to the relevant Tax becomes finally determined by a court of competent jurisdiction in accordance with applicable Law and (ii) those covenants or other agreements which by their terms contemplate performance after the Closing Date (including the indemnification provisions in this Article IX), each of which shall survive the Closing for the period contemplated by its terms or, if no period is contemplated in this Agreement, for a period of six (6) years after the Closing Date. Upon termination and expiration of any representation, warranty or covenant, all indemnification obligations with respect to such representation, warranty or covenant shall likewise terminate and expire; except to the extent that, no later than the date of such expiration or termination a claim shall have been given for any breach thereof. Notwithstanding the foregoing, any claims asserted in writing to the Indemnifying Party prior to the expiration of the applicable survival period shall not thereafter be barred by the expiration of such survival period and such claims shall survive until finally resolved.

9.2 Indemnification by the Seller. Subject to the other terms and conditions of this Article IX, the Seller shall indemnify, defend, and hold Buyer, its Subsidiaries, Affiliates, and their respective managers, officers, directors, employees, agents, successors and assigns (collectively, the “Buyer Indemnitees”) harmless from and against, and shall pay and reimburse each of them for, any and all Losses that any Buyer Indemnitee may suffer or incur as a result of or relating to:

(a) any breach of, or any inaccuracy in, any representation or warranty made by the Seller or the Company in this Agreement; or

(b) any breach or non-fulfillment of any covenant, agreement or obligation made or to be performed by the Seller or any of its Subsidiaries or Affiliates (including, prior to the Closing, any member of the Company Group) pursuant to this Agreement or the Transaction Documents.

9.3 Indemnification by Buyer. Subject to the other terms and conditions of this Article IX, Buyer shall indemnify, defend, and hold the Seller, its Subsidiaries and Affiliates, and their respective managers, officers, directors, employees, agents, successors and assigns (collectively, the “Seller Indemnitees”) harmless from and against, and shall pay and reimburse each of them for, any and all Losses that any Seller Indemnitee may suffer or incur as a result of or relating to:

(a) any breach of, or any inaccuracy in, any representation or warranty made by Buyer in this Agreement; or

(b) any breach or non-fulfillment of any covenant, agreement or obligation made or to be performed by Buyer or any of its Subsidiaries or Affiliates (including, after to the Closing, any member of the Company Group) pursuant to this Agreement or the Transaction Documents.

9.4 Limitations.

(a) Notwithstanding anything to the contrary herein, the Indemnifying Party shall not be liable to the Indemnified Party (i) for any Losses arising from Section 9.2(a) above unless and until the aggregate amount of all such Losses exceeds $250,000 (the “Deductible”), in which event the Indemnified Party shall be entitled to indemnification for only such Losses in excess of the Deductible, or (ii) for any Losses in excess of an aggregate amount equal to $2,000,000 (the “Cap”).

(b) Notwithstanding the foregoing: (i) the limitations set forth in Section 9.4(a) shall not apply to any breach or of (A) any Fundamental Representations, (B) for Taxes and/or Losses for which Seller is responsible under Section 6.10, or (C) in the case of Fraud.

(c) In no event shall the Seller’s maximum aggregate liability to the Buyer Indemnitees with respect to Losses under Section 9.2(a) and/or for Taxes and/or Losses for which Seller is responsible under Section 6.10 exceed the aggregate Purchase Price under this Agreement and the US Purchase Agreement (i.e., $19.2 million) , except for such Losses arising out of Fraud.

(d) In no event shall Seller be liable for any Buyer Assumed Taxes or any Taxes for which Buyer is liable under Section 6.10.

(e) Payment by an Indemnifying Party pursuant to Section 9.2 or Section 9.3 in respect of any Losses shall be net of any insurance proceeds or third party indemnity or contribution payments actually received by the Indemnified Party in respect of such Losses, less any deductibles, costs and expenses incurred in connection with making any claim or pursuing or obtaining such insurance proceeds or third party indemnity or contribution payments, and related increases in insurance premiums or other chargebacks. If any such amounts described in this Section 9.4(d) are received by an Indemnified Party after being fully indemnified for the relevant Losses hereunder, such amounts will be promptly paid to the Seller or Buyer, as applicable.

(f) The Parties agree that all indemnifiable losses suffered by any Buyer Indemnitees under Section 9.2(a) of the US Purchase Agreement shall be considered Losses arising from Section 9.2(a) of this Agreement and aggregated for the purposes of satisfying the Deductible. The Parties further agree that all Losses indemnifiable under this Agreement and Section 9.2(a) of the US Purchase Agreement shall be aggregated and applied against the Cap under this Agreement and shall include losses under the US Purchase Agreement to the extent such losses are covered by the Cap in the US Purchase Agreement. By way of example only and in no way in limitation of the foregoing, if Buyer incurs $200,000 in indemnifiable Losses under this Agreement and Buyer or its Affiliates incurs $50,000 in indemnifiable Losses under the US Purchase Agreement, such combined Losses shall be aggregated for purposes of satisfying the Deductible and counting against the Cap and the limitation set forth in Section 9.4(c) above. For the avoidance of doubt, no Indemnified Party shall be entitled to double recovery for any indemnifiable Losses even though such Losses, or any other incident, may have resulted from the breach of more than one of the representations, warranties, covenants and agreements, or any other indemnity, provided in this Agreement or the US Purchase Agreement.

(g) No Indemnifying Party shall be liable to any other Indemnified Party for any punitive, exemplary, or similar damages, except to the extent such damages are awarded by a Governmental Authority in connection with a Third-Party Claim.

(h) For purposes of determining whether a breach or an alleged breach has occurred and the amount of any Losses for which the Buyer Indemnitees or the Seller Indemnitees, as the case may be, are entitled to claim indemnification, all “materiality,” “in all material respects,” “Material Adverse Effect” and qualifiers of similar import will be excluded from and given no effect in each representation and warranty and each covenant and agreement; provided, however, that such qualifiers shall not be disregarded where they are part of a defined term (e.g., “Material Customer”) or where the context otherwise requires.

(i) Notwithstanding the foregoing, the limitations set forth in this Section 9.4 shall not apply to claims based on a Party’s Fraud. Solely with respect to actions grounded in Fraud, (A) the right of a party to be indemnified and held harmless pursuant to the indemnification provisions in this Agreement shall be in addition to and cumulative of any other remedy of such party at law or in equity, and (B) no party shall, by exercising any remedy available to it under this Article IX, be deemed to have elected such remedy exclusively or to have waived any other remedy, whether at law or in equity, available to it.

(j) Notwithstanding any provision to the contrary contained in this Agreement, the Parties hereby acknowledge and agree that Buyer’s first source of recovery for any and all indemnifiable Losses for which the Seller is liable pursuant to this Article IX or Taxes for which Seller is responsible under Section 6.10 shall be by offset against any amounts of principal and accrued interest, if any, remaining under the Note. Buyer shall be entitled to reduce such unpaid principal balance and accrued but unpaid interest in an amount equal to the indemnifiable Losses for which the Seller is liable pursuant to the provisions of this Article IX. Buyer Indemnitees shall only have the right to recover directly from the Seller if there is no outstanding principal amount and accrued but unpaid interest under the Note or to the extent the Losses for which the Seller is liable pursuant to this Article IX exceed the then-outstanding principal amount and accrued but unpaid interest under the Note (in which event, Buyer Indemnitees may only recover directly from the Seller in an amount equivalent to such excess).

9.5 Matters Involving Third Party Claims.

(a) Promptly after the receipt by any Seller Indemnitee or Buyer Indemnitee (as the case may be, an “Indemnified Party”) of notice of the commencement of any action by any Person who is not a party to this Agreement (such action, a “Third Party Claim”), such Indemnified Party shall, if a claim with respect thereto is to be made against any party obligated to provide indemnification pursuant to this Article IX (the “Indemnifying Party”), give such Indemnifying Party prompt written notice (but in any event, to the extent there is a deadline to respond to such Third Party Claim under applicable Law, no later than five (5) Business Days prior to the date of such deadline) of such Third Party Claim, describing in reasonable detail the circumstances then known to such Indemnified Party and shall include copies of all material written documentation received by the Indemnified Party relating thereto (to the extent not privileged or subject to an obligation of confidentiality); provided, that the failure of the Indemnified Party to provide such notice shall not relieve the Indemnifying Party of its indemnification obligations hereunder, except to the extent that such failure to give notice shall materially and adversely prejudice any defense or claim available to the Indemnifying Party.

(b) The Indemnifying Party, within ten (10) days after receiving the Indemnified Party’s notice of the Third Party Claim, shall acknowledge in writing to the Indemnified Party whether the Indemnifying Party will assume the defense of such Third Party Claim with its own counsel and at the Indemnifying Party’s sole expense; provided, that, in order to assume the defense of such Third Party Claim, the Indemnifying Party must reasonably believe that it may be responsible for the Losses relating to such Third Party Claim (based on the facts then known) and if, at any time during the course of assuming the defense of such Third Party Claim the Indemnifying Party reasonably believes it is not responsible for such Losses, then it will notify the Indemnified Party in writing and tender defense of such claim to the Indemnified Party at such time; provided, that the Indemnifying Party shall not be entitled to assume or continue control of the defense of any Third Party Claim if (i) the Third Party Claim relates to or arises in connection with any criminal proceeding, (ii) the Third Party Claim solely seeks non-monetary damages, including an injunction, specific performance or equitable relief against any Indemnified Party, (iii) settlement of, or an adverse judgment with respect to, the Third Party Claim is reasonably expected to establish a precedential custom or practice materially adverse to the continuing business interests of the Indemnified Party, or (iv) the Indemnified Party has determined in good faith that there would be a conflict of interest or other materially detrimental or inappropriate matter associated with joint representation of the indemnification proceeding.

(c) If the Indemnifying Party assumes the defense of any Third Party Claim, (i) it shall not, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed), settle, compromise or offer to settle or compromise, or consent to any order or judgment with respect to the Third Party Claim, except as provided in this Section 9.5(c); (ii) the Indemnified Party shall have the right (but not the obligation) to participate in the defense of such Third Party Claim and to employ, at its own expense, counsel separate from counsel employed by the Indemnifying Party at its own cost and expense; and (iii) it shall actively and diligently defend the Third Party Claim and keep the Indemnified Party fully and timely apprised of all developments, including settlement offers, with respect to the Third Party Claim. If a firm offer is made to settle a Third Party Claim without leading to any Liability or the creation of a financial or other obligation on the part of the Indemnified Party and provides, in customary form, for the unconditional release of each Indemnified Party from all liabilities and obligations in connection with such Third Party Claim and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party shall give written notice to that effect to the Indemnified Party. If the Indemnified Party fails to provide such consent within ten Business Days after receiving written notice of such settlement offer, the Indemnifying Party may continue to contest or defend such Third-Party Claim and in such event, the maximum liability of the Indemnifying Party as to such Third-Party Claim shall not exceed the amount of such settlement offer.

(d) If the Indemnifying Party does not assume the defense of any Third Party Claim, or if any condition to the Indemnifying Party’s assumption of the defense of any Third Party Claim set forth above becomes unsatisfied, the Indemnified Party may defend against such claim in such manner and on such terms as it in good faith deems appropriate, provided that the Indemnified Party shall not agree to any settlement without the written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed) and shall be entitled to indemnification in respect thereof in accordance with Section 9.2 or Section 9.3, as applicable. In no event shall the Indemnified Party settle any Third Party Claim while the defense thereof is controlled by the Indemnifying Party pursuant to and in accordance with this Section 9.5(d) without the consent of the Indemnifying Party (such consent not to be unreasonably withheld, conditioned or delayed).

9.6 Matters Involving Direct Claims. Any claim by an Indemnified Party on account of Losses that does not result from a Third Party Claim (a “Direct Claim”) will be asserted by giving the applicable Indemnifying Party prompt written notice thereof after becoming aware of the claim, describing in reasonable detail the circumstances then known to such Indemnified Party and shall include copies of all material written documentation received by the Indemnified Party relating thereto (to the extent not privileged or subject to an obligation of confidentiality); provided, that the failure of the Indemnified Party to provide such notice shall not relieve the Indemnifying Party of its indemnification obligations hereunder, except to the extent that such failure to give notice shall materially and adversely prejudice any defense or claim available to the Indemnifying Party. The Indemnifying Party shall have 20 days after receipt of such written notice to respond in writing to such Direct Claim (“Claim Review Period”) which response shall set forth whether the Indemnifying accepts or rejects any portion of such Direct Claim, and to the extent such response rejects any portion of such Direct Claim, such response shall provide reasonable detail, and provide reasonable supporting information and/or documentation (to the extent not privileged or subject to an obligation of confidentiality) supporting such rejection. If the Indemnifying Party rejects all or any portion of the Direct Claim before the expiration of the Claim Review Period, the Indemnified Party and the Indemnifying Party shall negotiate in good faith to resolve the disputed portion of the Direct Claim for a period of 30 days (the “Claim Resolution Period”). If the Indemnifying Party and the Indemnified Party fail to reach an agreement with respect to any disputed portion of the Direct Claim during the Claim Resolution Period, then the Indemnified Party may commence an action in accordance with Section 10.9.

9.7 Indemnification Payments. Once any Loss is agreed to by the Indemnifying Party or is finally determined to be payable by a final, non-appealable judgment pursuant to this Article IX, the Indemnifying Party shall pay the full amount of such Loss within 15 Business Days by wire transfer of immediately available funds; provided, however, that in the event the Seller is the Indemnifying Party and the Note remains outstanding and unpaid, Buyer shall, prior to seeking the full amount of such Loss, offset such Loss against the Note pursuant to Section 9.4(i). Subject to Section 9.4(i), if the Indemnifying Party fails to make such payment within the applicable 15 Business Day period, the unpaid amount shall accrue interest from and including the date of such agreement or final adjudication to and including the date of payment at a rate per annum equal to 10.0%, calculated on the basis of a 365-day year and the actual number of days elapsed, without compounding. Any indemnity payments made pursuant to this Agreement shall be treated by the Parties for all Tax purposes as an adjustment to the Final Purchase Price, unless otherwise required by applicable Law.

9.8 Right of Set-Off. The Seller hereby agrees that with respect to any claim for indemnification under this Article IX, Buyer is hereby authorized to setoff and apply any Taxes for which Seller is responsible under Section 6.10 or Losses which are owed by the Seller to Buyer or the Buyer Indemnities, against the obligations, if any, owing to the Seller by Buyer in respect of this Agreement, including the payment the principal and accrued interest, if any, under the Note. Neither the exercise of nor the failure to exercise any such right of set-off or to give a notice of a claim will constitute an election of remedies or limit Buyer in any manner in the enforcement of any other remedy that may be available to Buyer Indemnities and any such setoff is not the sole and exclusive remedy of the Buyer Indemnities.

9.9 Sole Remedies. The Parties acknowledge and agree that from and after the Closing the rights of any Indemnified Party set forth in this Article IX shall be the sole and exclusive remedies of such Indemnified Party with respect to claims arising out of any breach of the representations, warranties, covenants and agreements contained in this Agreement, provided, however, that nothing herein shall (a) limit or restrict the rights of any Party to seek claims for equitable relief (including injunctive relief or specific performance) for any breach or threatened breach of any covenant or agreement to be performed at or after the Closing, (b) limit or restrict the rights of any party to enforce its rights under any other Transaction Document, or (c) preclude any party from asserting a claim based on Fraud.

ARTICLE X

MISCELLANEOUS

10.1 Expenses. Except as otherwise expressly provided herein, all costs and expenses, including, without limitation, fees and disbursements of counsel, financial advisors and accountants, incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the Party incurring such costs and expenses, whether or not the Closing shall have occurred.

10.2 Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given (a) when personally delivered, (b) when transmitted (except if not a Business Day, then the next Business Day) via email to the email address set out below (provided that, no “error” message or other notification of non-delivery is generated), (c) the day following the day (except if not a Business Day then the next Business Day) on which the same has been delivered prepaid to a reputable national (U.S.) overnight air courier service or (d) the third Business Day following the day on which the same is sent by certified or registered mail, postage prepaid. Notices, demands and communications, in each case to the respective Parties, shall be sent to the applicable address set forth below, unless another address has been previously specified in writing by such party:

10.3 Interpretation. For purposes of this Agreement, (a) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole; and (d) the ejusdem generis principle of construction shall not apply to this Agreement and general words shall not be given a restrictive meaning by reason of their being preceded or followed by words indicating a particular class of acts, matters or things or by examples falling within the general words; and (e) any information or documentation required to be made available, provided or delivered to Buyer by the Seller prior to the date hereof pursuant to the terms of this Agreement or any other Transaction Document shall be deemed made available, provided and delivered to Buyer if such information or documentation has been posted to any data room (virtual, physical or otherwise) or similar information-sharing platform maintained by the Parties for the purposes of effectuating the transactions contemplated hereby. Unless the context otherwise requires, references herein: (x) to Articles, Sections, Disclosure Schedules and Exhibits mean the Articles and Sections of, and Disclosure Schedules and Exhibits attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Disclosure Schedules and Exhibits referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein. The headings contained in this Agreement are inserted for convenience only and shall not be considered in interpreting or construing any of the provisions contained in this Agreement.

10.4 Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

10.5 Entire Agreement. This Agreement and the other Transaction Documents constitute the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein, and supersede all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements in the body of this Agreement and those in the other Transaction Documents, the Exhibits and Disclosure Schedules (other than an exception expressly set forth as such in the Disclosure Schedules), the statements in the body of this Agreement will control.

10.6 Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns. Neither party may assign its rights or obligations hereunder without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. No assignment shall relieve the assigning party of any of its obligations hereunder. Notwithstanding the foregoing, Seller may assign all of its rights under this Agreement to Seller’s or Seller’s affiliates’ lender or lenders without the prior written consent of Buyer.

10.7 No Third-party Beneficiaries. Except as provided in Article IX, this Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

10.8 Amendment and Modification; Waiver. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

10.9 Governing Law; Submission to Jurisdiction; Waiver of Jury Trial.

(a) This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of Law provision or rule (whether of the State of Delaware or any other jurisdiction).

(b) ANY LEGAL SUIT, ACTION OR PROCEEDING ARISING OUT OF OR BASED UPON THIS AGREEMENT, THE OTHER TRANSACTION DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY SHALL PROPERLY AND EXCLUSIVELY LIE IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE, AND ANY STATE APPELLATE COURT THEREFROM WITHIN THE STATE OF DELAWARE (OR, IF THE COURT OF CHANCERY OF THE STATE OF DELAWARE DECLINES TO ACCEPT JURISDICTION OVER A PARTICULAR MATTER, ANY FEDERAL COURT WITHIN THE STATE OF DELAWARE), AND EACH PARTY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING. SERVICE OF PROCESS, SUMMONS, NOTICE OR OTHER DOCUMENT BY MAIL TO SUCH PARTY’S ADDRESS SET FORTH HEREIN SHALL BE EFFECTIVE SERVICE OF PROCESS FOR ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT IN ANY SUCH COURT. THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY OBJECTION TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR ANY PROCEEDING IN SUCH COURTS AND IRREVOCABLY WAIVE AND AGREE NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

(c) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT OR THE OTHER TRANSACTION DOCUMENTS IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER TRANSACTION DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, (B) SUCH PARTY HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.9(c).

10.10 Specific Performance. The Parties agree that irreparable damage for which monetary damages, even if available, would not be an adequate remedy, would occur in the event that the Parties do not perform the provisions of this Agreement (including failing to take such actions as are required of it hereunder to consummate this Agreement) in accordance with its specified terms or otherwise breach such provisions. Prior to the valid termination of this Agreement pursuant to Article VIII, the Parties shall be entitled to seek an injunction, specific performance and other equitable relief to prevent or cure breaches of this Agreement and to enforce specifically the terms and provisions hereof, this being in addition to any other remedy to which the Parties are entitled at Law or in equity. Each of the Parties agrees that it will not oppose the granting of an injunction, specific performance and other equitable relief when expressly available pursuant to the terms of this Agreement on the basis that (i) there is adequate remedy at Law or (ii) an award of specific performance is not an appropriate remedy for any reason at Law or in equity. Any Party seeking an injunction or injunctions to prevent breaches of this Agreement when expressly available pursuant to the terms of this Agreement and to enforce specifically the terms and provisions of this Agreement when expressly available pursuant to the terms of this Agreement shall not be required to provide any bond or other security in connection with any such Order or injunction.

10.11 Non-Recourse. All claims or causes of action (whether in Contract or in tort, in Law or in equity) that may be based upon, arise out of or relate to this Agreement or the Transaction Documents, or the negotiation, execution or performance of this Agreement or the Transaction Documents (including any representation or warranty made in or in connection with this Agreement or the Transaction Documents or as an inducement to enter into this Agreement or the Transaction Documents), may be made only against the entities that are expressly identified as Parties and thereto, except in the event of Fraud committed by such Non-Party Affiliate. No Person who is not a named party to this Agreement or the Transaction Documents, including any past, present or future director, manager, officer, employee, incorporator, member, partner, equityholders (including stockholders and optionholders), Affiliate, agents, attorney or representative of any named party to this Agreement or the other Transaction Documents or the sources of the Financing (“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) for any obligations or Liabilities arising under, in connection with or related to this Agreement or such other Transaction Document or for any claim based on, in respect of, or by reason of this Agreement or such other Transaction Document or the negotiation execution hereof or thereof, except for in the event of Fraud; and each Party waives and releases all such Liabilities, claims and obligations against any such Non-Party Affiliates, except in the event of Fraud committed by such Non-Party Affiliate. Non-Party Affiliates are expressly intended as third-party beneficiaries of this provision of this Agreement.

10.12 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

[Signature Page to Follow.]

IN WITNESS WHEREOF, the Parties have caused this Equity Purchase Agreement to be executed as of the date first written above.

Exhibit 10.1

Execution Version

Limited consent AND AMENDMENT NO. 3 to AMENDED AND RESTATED CREDIT, SECURITY AND GUARANTY AGREEMENT (TERM LOAN) AND AMENDMENT NO. 1 TO PLEDGE AGREEMENT

This LIMITED CONSENT AND AMENDMENT NO. 3 TO AMENDED AND RESTATED CREDIT, SECURITY AND GUARANTY AGREEMENT (TERM LOAN) AND AMENDMENT NO. 1 TO PLEDGE AGREEMENT (this “Agreement”) is made as of July 7, 2025, by and among XTANT MEDICAL, INC., a Delaware corporation (“Xtant”), BACTERIN INTERNATIONAL, INC., a Nevada corporation, X-SPINE SYSTEMS, INC., an Ohio corporation, SURGALIGN SPV, INC., a Delaware corporation, and any additional borrower that may hereafter be added to this Agreement (each individually as a “Borrower”, and collectively with any entities that become party hereto as Borrower and each of their successors and permitted assigns, the “Borrowers”), XTANT MEDICAL HOLDINGS, INC., a Delaware corporation (“Holdings”), as a Guarantor, MidCap Financial Trust, a Delaware statutory trust, as Agent (in such capacity, together with its successors and assigns, “Agent”) and the other financial institutions or other entities from time to time parties to the Credit Agreement referenced below, each as a Lender.

RECITALS

A. Agent, Lenders, and the Credit Parties have entered into that certain Amended and Restated Credit, Security and Guaranty Agreement (Term Loan), dated as of March 7, 2024 (as amended by that certain Amendment No. 1 to Amended and Restated Credit, Security and Guaranty Agreement (Term Loan), dated as of May 14, 2024, as amended by that certain Amendment No. 2 to Amended and Restated Credit, Security and Guaranty Agreement (Term Loan), dated as of April 9, 2025, and as further amended, restated, supplemented or otherwise modified at any time prior to the date hereof, the “Existing A&R Credit Agreement” and as supplemented hereby and as it may be further amended, modified, supplemented and restated from time to time, the “Credit Agreement”), pursuant to which the Lenders have agreed to make certain advances of money and to extend certain financial accommodations to Borrowers in the amounts and manner set forth in the Credit Agreement.

B. Borrowers and Holdings have notified Agent that Holdings wishes to sell, transfer and assign to Companion Spine, LLC, a Delaware limited liability company, or any of its affiliates or designated independent entities (the “Acquiror”) certain assets of Holdings, including (i) all of its Equity Interests in Paradigm Spine GmbH, an entity organized under the laws of Germany (the “International Subsidiary”), together with certain related assets of Holdings previously owned by Paradigm Spine, LLC, and acquired by Holdings, in each case as currently owned by the International Subsidiary (the “International Assets”) pursuant to that certain Equity Purchase Agreement dated as of July 7, 2025 (as in effect on the date hereof and together with the schedules thereto, the “Equity Purchase Agreement”) by and among Holdings, as seller, the International Subsidiary, as the company, and the Acquiror, as buyer, a copy of which is attached hereto as Exhibit A and (ii) certain assets and liabilities of Holdings used in the operation of, or related to the design, manufacture, sale, and distribution of Holdings’ “coflex” and “cofix” products in the United States previously owned by Paradigm Spine, LLC, and acquired by Holdings, as defined as the “Acquired Assets” in the Asset Purchase Agreement (as hereinafter defined) (the “Domestic Assets”, and together with the International Assets, collectively, the “Purchased Assets”), pursuant to that certain Asset Purchase Agreement, dated as of July 7, 2025 (as in effect on the date hereof and together with the schedules thereto, the “Asset Purchase Agreement”, and together with the Equity Purchase Agreement, collectively the “Purchase Agreements”) by and between Holdings, as the company, and the Acquiror, as buyer, a copy of which is attached hereto as Exhibit B.

C. Pursuant to the Asset Purchase Agreement, as partial consideration for the Dispositions contemplated by the Purchase Agreements, Holdings proposes for the Acquiror to issue an unsecured promissory note (the “Seller Note”) to Holdings in an original principal amount of $8,200,000 (the “Principal Amount”), the form of which is attached hereto as Exhibit C and Holdings desires to pledge the Seller Note to Agent as Pledged Collateral, which Seller Note would constitute an Investment purposes of the Credit Agreement.

D. Borrowers and Holdings have notified Agent that (x) such Permitted Paradigm Dispositions (as hereinafter defined) would not constitute a Permitted Asset Disposition under the Existing Credit Agreement, and (y) the proposed Investment in the form of the Seller Note would not constitute a Permitted Investment under the Existing Credit Agreement.

E. (i) Pursuant to Section 5.6 of the Existing Credit Agreement, Credit Parties shall not make or consummate any Asset Dispositions other than Permitted Asset Dispositions and (ii) pursuant to Section 5.7 of the Existing Credit Agreement, Credit Parties shall not acquire, make, own, hold, or otherwise consummate any Investment (including for the avoidance of doubt, any Acquisition) other than Permitted Investments, or enter into any agreement to acquire, make, own or hold any Investment other than Permitted Investments.

F. The Credit Parties have entered into that certain Pledge Agreement, dated as of May 6, 2021 (as amended, restated, reaffirmed, supplemented or otherwise modified prior to the date hereof, the “Existing Pledge Agreement”, and the Existing Pledge Agreement, as it is amended hereby and may be further amended, restated, reaffirmed, supplemented or otherwise modified from time to time, the “Pledge Agreement”), pursuant to which the Pledgors (as defined therein) have granted to Agent a security interest in certain Equity Interests and Debt set forth therein to secure the Obligations.

G. Pursuant to Section 2.1(a)(ii)(B)(iii) of the Credit Agreement, unless Agent otherwise consents in writing, within five (5) Business Days of receipt by any Credit Party of the proceeds in excess of $100,000 of any Asset Disposition received in the prior twelve (12) months with respect to assets upon which Agent maintained a Lien that is not made in the Ordinary Course of Business, Credit Parties are required to prepay the Obligations in an amount equal to one hundred percent (100%) of the net cash proceeds of such Asset Disposition (net of out-of-pocket expenses, taxes and repayment of secured debt permitted under clause (c) of the definition of Permitted Debt in the Credit Agreement and encumbering such asset), or such lesser portion as Agent elects to apply to the Obligations (the “Applicable Prepayment”).

H. The Credit Parties have requested, and Agent and Lenders have agreed, on and subject to the terms and conditions set forth in this Agreement, to (i) consent to (x) the Permitted Paradigm Dispositions and the Seller Note Investment pursuant to the Purchase Agreements, as applicable, and (y) the Credit Parties not making certain Applicable Prepayments, and (ii) amend the Existing Pledge Agreement to reflect the pledge of the Seller Note by Holdings to Agent, all in accordance with the terms and subject to the conditions set forth herein.

AGREEMENT

NOW, THEREFORE, in consideration of the foregoing, the terms and conditions set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Agent, Lenders and the Credit Parties hereby agree as follows:

1. Recitals. This Agreement shall constitute a Financing Document and the Recitals and each reference to the Credit Agreement, unless otherwise expressly noted, will be deemed to reference the Credit Agreement as amended hereby. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Credit Agreement (including those capitalized terms used in the Recitals hereto).

2. Limited Consent.

(a) Subject to the satisfaction of the conditions set forth in this Agreement, including in this Section 2(a) and Section 6, and in reliance on the representations and warranties contained in Section 5 below, Agent and the Lenders hereby consent to Holdings entering into the Purchase Agreements and (w) disposing of the Equity Interests of the International Subsidiary and the International Assets on and subject to the terms of the Equity Purchase Agreement (the “International Dispositions”), (x) disposing of the Domestic Assets on and subject to the terms of the Asset Purchase Agreement (the “Domestic Disposition” and together with the International Dispositions, the “Permitted Paradigm Dispositions”), (y) the making of an Investment by receipt of the Seller Note by Holdings as part of the purchase price paid by the Purchaser for the Domestic Assets (the “Seller Note Investment”) and (z) the Credit Parties not making certain prepayments that would otherwise be required pursuant to the terms of the Credit Agreement; provided, in each case, that:

(i) The International Dispositions and the Domestic Disposition are consummated no later than Termination Date (as defined in the Asset Purchase Agreement, as the same is in effect on the date hereof) or such later date as Agent may agree, in its sole discretion;

(ii) the Permitted Paradigm Dispositions are consummated in all material respects in accordance with the terms of the Purchase Agreements in the forms attached hereto as Exhibit A and Exhibit B, respectively, without giving effect to any amendments, consents, waivers or other modifications thereto, unless approved by Agent in writing in its sole discretion;

(iii) (x) the Seller Note is delivered to Agent on the Asset Purchase Agreement Closing Date in form and substance satisfactory to Agent in its sole and absolute discretion (for the avoidance of doubt, the Seller Note shall include provisions satisfactory to Agent in its sole and absolute discretion providing for its collateral assignment to Agent) and in substantially the form attached hereto as Exhibit C, and (y) Agent shall have received an allonge in form and substance satisfactory to Agent relating to the Seller Note executed in blank;

(iv) Agent shall have received (A) that certain intellectual property assignment agreement between Holdings and the Acquiror, (B) (x) that certain bill of sale delivered by Holdings to the Acquiror and (y) that certain bill of sale delivered by Surgalign SPV, Inc., to the Acquiror, (C) that certain assignment and assumption agreement between Holdings and the Acquiror, (D) that certain Transition Services Agreement between Holdings and the Acquiror, (E) that certain Subordination Agreement between Holdings and Innovatus Life Sciences Lending Fund I, LP, in its capacity as collateral agent, as it relates to the Seller Note, and (F) each other agreement, instrument or document executed in connection with any of the foregoing, in each case of clauses (A)-(D) hereto, in substantially the form attached to the Asset Purchase Agreement as attached hereto as Exhibit B;

(v) no Default or Event of Default exists or would (after giving effect to this Agreement) result therefrom; and

(vi) Agent shall have received the prepayment of the Term Loans contemplated to be made at or prior to the closing of the respective Permitted Paradigm Disposition.

(b) The limited consent set forth in this Section 2 is effective solely for the purposes set forth herein and shall be limited precisely as written and shall not, except as expressly provided herein, be deemed to (a) be a consent to any amendment, waiver or modification of any term or condition of the Credit Agreement or of any other Financing Document; (b) prejudice any right that Agent or Lenders have or may have in the future under or in connection with the Credit Agreement or any other Financing Document; (c) constitute a consent to or waiver of any past, present or future Default or Event of Default or other violation of any provisions of the Credit Agreement or any other Financing Documents; (d) create any obligation to forbear from taking any enforcement action, or to make any further extensions of credit; or (e) establish a custom or course of dealing among any of the Credit Parties, on the one hand, or Agent or any Lender, on the other hand.

3. Partial Release of Collateral.

(a) Subject to the terms and conditions of this Agreement, at Borrower’s sole cost and expense, upon Agent’s receipt of satisfactory written confirmation of the consummation of the Permitted Paradigm Dispositions in accordance with the terms of the Purchase Agreements and satisfaction of the conditions set forth in Section 2(a) of this Agreement, Agent acknowledges and agrees, pursuant to Section 11.9(a)(ii) of the Credit Agreement, that any security interest previously granted to it in the Purchased Assets and in the Equity Interests of the International Subsidiary and all of Holdings’ interests in, to and under the Shares (as defined in the Equity Purchase Agreement as in effect on the date hereof) will be automatically discharged and released. Upon consummation of the International Dispositions, Agent and Lenders further acknowledge and Agree that Paradigm Spine GmbH shall no longer constitute a Subsidiary or Restricted Foreign Subsidiary for purposes of the Financing Documents. Except as otherwise expressly set forth herein, the provisions of this paragraph 3(a) do not release any Lien granted by the Credit Parties in favor of the Agent, for the benefit of the Lenders, pursuant to the Credit Agreement or any other Financing Document. Following confirmation from Borrower of the consummation of the Permitted Paradigm Dispositions in accordance with the terms of this Agreement, Agent agrees, at Borrower’s sole cost and expense, to (i) promptly file the a UCC-3 financing statement, in form and substance satisfactory to Agent, evidencing the partial release set forth in this Section 3(a) and (ii) take all reasonable further action as Borrower may reasonably request to evidence the consummation of the release of Agent’s Liens in the Purchased Assets as set forth in this Section 3(a).

(b) The partial Lien release in Section 3(a) is made without recourse to or warranty by Agent or any Lender. It is expressly agreed and understood that the release in Section 3(a) is a partial release and that it shall in no manner release, affect or otherwise impair the liens and security interest in favor of Agent, under the Credit Agreement or any Financing Document or otherwise, against any Collateral other than the Purchased Assets and the Equity Interests in the International Subsidiary, as applicable.

4. Amendments to Pledge Agreement. Immediately upon the issuance of the Seller Note, each Credit Party hereby agrees that the Pledged Debt listed on Schedule I attached hereto shall automatically be and become a part of the Pledged Collateral referred to in the Pledge Agreement and shall secure all Obligations referred to and in accordance with the Pledge Agreement. Schedule I of the Pledge Agreement shall be deemed amended to include the Pledged Collateral listed on Schedule I hereto. The Credit Parties acknowledge that any Pledged Collateral issued by any Issuer and owned by any Pledgor but not included in Schedule I hereto or already listed as Pledged Collateral on Schedule I of the Existing Pledge Agreement, at the sole discretion of Agent, may not otherwise be pledged by such Pledgor to any other Person or otherwise used as security for any obligations other than the Obligations.

5. Representations and Warranties; Reaffirmation of Security Interest. Each Credit Party hereby confirms that all of the representations and warranties set forth in the Credit Agreement are true and correct in all material respects (without duplication of any materiality qualifier in the text of such representation or warranty) with respect to such Credit Party as of the date hereof except to the extent that any such representation or warranty relates to a specific date in which case such representation or warranty shall be true and correct as of such earlier date. Nothing herein is intended to impair or limit the validity, priority or extent of Agent’s security interests in and Liens on the Collateral. Each Credit Party acknowledges and agrees that the Credit Agreement, the other Financing Documents and this Agreement constitute the legal, valid and binding obligation of such Credit Party, and are enforceable against such Credit Party in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency or other similar laws relating to the enforcement of creditors’ rights generally and by general equitable principles.

6. Conditions to Effectiveness. This Agreement shall become effective as of the date on which each of the following conditions have been satisfied, as determined by Agent in its sole discretion:

(a) Agent shall have received (including by way of facsimile or other electronic transmission) a duly authorized, executed and delivered counterpart of the signature page to this Agreement from each Credit Party, the Agent and the Lenders;

(b) Agent shall have received a duly executed copy of the Limited Consent and Amendment No. 3 to Amended and Restated Credit, Security and Guaranty Agreement (Revolving Loan) and Amendment No. 1 to Pledge Agreement;

(c) Agent shall have received duly executed copies of each of (i) the Equity Purchase Agreement, (ii) the Asset Purchase Agreement, and (iii) each other agreement, instrument or document executed in connection with any of the foregoing;

(d) all representations and warranties set forth in the Credit Agreement shall be true and correct in all material respects (without duplication of any materiality qualifier in the text of such representation or warranty) as of the date hereof, except to the extent that any such representation or warranty relates to a specific date in which case such representation or warranty shall be true and correct in all material respects as of such earlier date (without duplication of any materiality qualifier in the text of such representation or warranty) (and Borrower’s delivery of its signature hereto shall be deemed to be its certification thereof);

(e) immediately prior to and after giving effect to this Agreement, no Default or Event of Default exists under any of the Financing Documents;

(f) Agent shall have received the Signing Date Prepayment in full; and

(g) the Credit Parties shall have delivered such other documents, information, certificates, records, permits, and filings as the Agent may reasonably request.

7. Costs and Fees. Borrowers shall be responsible for the payment of all reasonable, documented and invoiced out-of-pocket costs and fees of Agent’s counsel incurred in connection with the preparation, negotiation, execution and delivery of this Agreement and any related Financing Documents.

8. Prepayments. On and subject to the terms and conditions of this Agreement and the other Financing Documents, notwithstanding Section 2.1(a)(ii)(B)(iii) of the Credit Agreement, Agent and Lenders hereby agree that the following prepayments shall be required in connection with the Permitted Paradigm Dispositions in the following amounts and at the following times:

(i) On the date hereof, Borrowers shall prepay the Term Loans in an amount equal to $2,500,000 with the amount received by Borrowers in the form of the Deposit (as defined in the Asset Purchase Agreement as in effect on the date hereof) (the “Signing Date Prepayment”);

(ii) Within one Business Day of receipt by or on behalf of Borrowers or their Subsidiaries of any additional amounts as consideration in connection the Permitted Paradigm Dispositions (including any amounts received as a Subsequent Deposit (as defined in the Asset Purchase Agreement on the date hereof) and any payments received under or in respect of the Seller Note), Borrowers shall prepay the Term Loans on a dollar-for-dollar basis with such amounts received until Agent has received an additional $2,500,000 as a prepayment of the Term Loans pursuant to this Section 8(ii);

(iii) Without limiting clauses (i) and (ii), within one Business Day of receipt by or on behalf of Borrowers or their Subsidiaries of any additional amounts as consideration in connection the Permitted Paradigm Dispositions (including any amounts received as a Subsequent Deposit and any payments received under or in respect of the Seller Note), Borrowers shall prepay the Term Loans in an amount equal to 50% of the amounts so received until Agent has received an additional $4,600,000 as a prepayment of the Term Loans pursuant to this Section 8(iii).

All prepayments made in accordance with this Section 8 shall be applied in accordance with Section 2.1(a)(iii) of the Credit Agreement. Each Credit Party hereby acknowledges and agrees that any breach of any of the covenants set forth in this Section 8 shall automatically constitute an immediate Event of Default under the Credit Agreement. The Borrowers hereby covenant and agree not to amend, waive or otherwise modify any provision of the Purchase Agreements or waive or forgo any consideration due to Borrowers or their Subsidiaries in connection with the Permitted Paradigm Dispositions without Agent’s prior written consent. For the avoidance of doubt, the prepayments required pursuant to this Section 8 are cumulative and the total amount of all prepayments required shall be $9,600,000.

9. Amendments to Credit Agreement. Subject to the terms and conditions of this Agreement, including, without limitation, the conditions to effectiveness set forth in Section 8 below, each of the parties hereto agrees that the Existing A&R Credit Agreement shall be amended as follows:

(a) Section 1.1 of the Existing A&R Credit Agreement is hereby amended by amending and restating the definition of “Material Contracts” in its entirety as follows:

““Material Contracts” means (a) the Financing Documents, (b) the agreements listed on Schedule 3.17, (c) the each Asset Purchase Agreement (as defined in the Paradigm Consent), the Seller Note (as defined in the Paradigm Consent), and each material document, instrument and agreement executed in connection therewith, and (d) any other agreement or contract to which such Credit Party or its Subsidiaries is a party the termination of which could reasonably be expected to result in a Material Adverse Effect.”

(b) Section 1.1 of the Existing A&R Credit Agreement is hereby amended by adding the following defined term in the appropriate alphabetical order therein:

““Paradigm Consent” means that certain Limited Consent and Amendment No. 3 to Amended and Restated Credit, Security and Guaranty Agreement (Term Loan) and Amendment No. 1 To Pledge Agreement, dated as of July 7, 2025, among Credit Parties, Agent and the Lenders party thereto, as the same is amended, supplemented or otherwise modified from time to time in accordance with the terms of the Financing Documents.”

(c) Solely upon consummation of the Permitted Paradigm Dispositions (as defined in the Paradigm Consent), Schedule 6.1 of the Existing A&R Credit Agreement is herby replaced in its entirety with Schedule 6.1 hereto.

10. Release. In consideration of the agreements of Agent and Lenders contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Credit Party, voluntarily, knowingly, unconditionally and irrevocably, with specific and express intent, for and on behalf of itself and all of its respective parents, subsidiaries, affiliates, members, managers, predecessors, successors, and assigns, and each of their respective current and former directors, officers, shareholders, agents, and employees, and each of their respective predecessors, successors, heirs, and assigns (individually and collectively, the “Releasing Parties”) does hereby fully and completely release, acquit and forever discharge each of Agent, Lenders, and each their respective parents, subsidiaries, affiliates, members, managers, shareholders, directors, officers and employees, and each of their respective predecessors, successors, heirs, and assigns (individually and collectively, the “Released Parties”), of and from any and all actions, causes of action, suits, debts, disputes, damages, claims, obligations, liabilities, costs, expenses and demands of any kind whatsoever, at law or in equity, whether matured or unmatured, liquidated or unliquidated, vested or contingent, choate or inchoate, known or unknown that the Releasing Parties (or any of them) has against the Released Parties or any of them (whether directly or indirectly). Each Credit Party acknowledges that the foregoing release is a material inducement to Agent’s and each Lender’s decision to enter into this Agreement and agree to the modifications contemplated hereunder, and has been relied upon by Agent and Lenders in connection therewith.

11. No Waiver or Novation. The execution, delivery and effectiveness of this Agreement shall not, except as expressly provided in this Agreement, operate as a waiver of any right, power or remedy of Agent, nor constitute a waiver of any provision of the Credit Agreement, the Financing Documents or any other documents, instruments and agreements executed or delivered in connection with any of the foregoing. Nothing herein is intended or shall be construed as a waiver of any existing Defaults or Events of Default under the Credit Agreement or the other Financing Documents or any of Agent’s rights and remedies in respect of such Defaults or Events of Default. This Agreement (together with any other document executed in connection herewith) is not intended to be, nor shall it be construed as, a novation of the Credit Agreement.

12. Affirmation. Except as specifically amended pursuant to the terms hereof, each Credit Party hereby acknowledges and agrees that the Credit Agreement and all other Financing Documents (and all covenants, terms, conditions and agreements therein) shall remain in full force and effect, and are hereby ratified and confirmed in all respects by such Credit Party. Each Credit Party covenants and agrees to comply with all of the terms, covenants and conditions of the Credit Agreement and the Financing Documents, notwithstanding any prior course of conduct, waivers, releases or other actions or inactions on Agent’s or any Lender’s part which might otherwise constitute or be construed as a waiver of or amendment to such terms, covenants and conditions.

13. Reaffirmation and Collateral Assignment.

(a) Except as specifically amended pursuant to the terms hereof, each Credit Party hereby acknowledges and agrees that the Credit Agreement and all other Financing Documents (and all covenants, terms, conditions and agreements therein) shall remain in full force and effect, and are hereby ratified and confirmed in all respects by such Borrower, including without limitation the granting of Liens in the Collateral to secure the Obligations pursuant to the Security Documents and other Financing Documents.

(b) Each Credit Party (i) hereby collaterally assigns, pledges and grants to Agent, for the benefit of itself and Lenders, a first priority Lien on and security interest in, upon, and to such Credit Party’s right, title and interest in and to the Purchase Agreements, the Seller Note and all products and proceeds of the foregoing and (ii) represents, warrants and covenants that the Purchase Agreements and the Credit Parties’ rights thereunder and the products and proceeds thereof shall in no event constitute Excluded Property.

(c) Each Credit Party covenants and agrees to comply with all of the terms, covenants and conditions of the Credit Agreement and the Financing Documents, notwithstanding any prior course of conduct, waivers, releases or other actions or inactions on Agent’s or any Lender’s part which might otherwise constitute or be construed as a waiver of or amendment to such terms, covenants and conditions. Each Credit Party confirms and agrees that all security interests and Liens granted to Agent continue in full force and effect, and all Collateral remains free and clear of any Liens, other than those granted to Agent and Permitted Liens.

14. Miscellaneous.

(a) Reference to the Effect on the Credit Agreement. Upon the effectiveness of this Agreement, each reference in the Credit Agreement to “this Agreement,” “hereunder,” “hereof,” “herein,” or words of similar import shall mean and be a reference to the Credit Agreement, as amended by this Agreement. Except as specifically amended above, the Credit Agreement, and all other Financing Documents (and all covenants, terms, conditions and agreements therein), shall remain in full force and effect, and are hereby ratified and confirmed in all respects by each Credit Party.

(b) Governing Law. THIS AGREEMENT AND ALL DISPUTES AND OTHER MATTERS RELATING HERETO OR ARISING THEREFROM (WHETHER SOUNDING IN CONTRACT LAW, TORT LAW OR OTHERWISE), SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.

(c) Incorporation of Credit Agreement Provisions. The provisions contained in Section 11.6 (Indemnification), Section 13.8(b) (Submission to Jurisdiction) and Section 13.9 (Waiver of Jury Trial) of the Credit Agreement are incorporated herein by reference to the same extent as if reproduced herein in their entirety.

(d) Headings. Section headings in this Agreement are included for convenience of reference only and shall not constitute a part of this Agreement for any other purpose.

(e) Counterparts. This Agreement may be signed in any number of counterparts, each of which shall be deemed an original and all of which when taken together shall constitute one and the same instrument. Signatures by facsimile or by electronic mail delivery of an electronic version of any executed signature page shall bind the parties hereto. In furtherance of the foregoing, the words “execution”, “signed”, “signature”, “delivery” and words of like import in or relating to any document to be signed in connection with this Agreement and the transactions contemplated hereby or thereby shall be deemed to include Electronic Signatures, deliveries 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, physical delivery thereof 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. As used herein, “Electronic Signature” means an electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or other record.

(f) Entire Agreement. This Agreement constitutes the entire agreement and understanding among the parties hereto and supersedes any and all prior agreements and understandings, oral or written, relating to the subject matter hereof.

(g) Severability. In case any provision of or obligation under this Agreement shall be invalid, illegal or unenforceable in any applicable jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.

(h) Successors/Assigns. This Agreement shall bind, and the rights hereunder shall inure to, the respective successors and assigns of the parties hereto, subject to the provisions of the Credit Agreement and the other Financing Documents.

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IN WITNESS WHEREOF, intending to be legally bound, the undersigned have executed this Agreement as of the day and year first hereinabove set forth.

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